Madhya Pradesh High Court
Anil Shah vs Shri Murti Narsingh Bhagwan Trust ... on 27 November, 2019
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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S.A. No.2473/2019
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Second Appeal No.2473/2019
(Anil Shah Vs. Shri Murti Narsingh Bhagwan Trust)
Jabalpur, Dated : 27.11.2019
Shri Sushant Ranjan, learned counsel for the appellant.
Shri R.P. Khare, learned counsel for the respondent appearing on
caveat.
The learned counsel for the appellant is heard on the question of admission.
2. By the instant appeal, the appellant is questioning the validity of the judgment and decree passed by the First Appellate Court on 30.07.2019 in Civil Appeal No.55-A/2015 whereby the appeal preferred by the appellant against the judgment and decree dated 30.04.2015 in Civil Suit No.96-A/2012 has been affirmed and appeal was dismissed.
3. The brief facts of the case in nut-shell are that a suit was filed by the plaintiff/respondent, which is a Public Trust, claiming itself to be the owner of the property bearing Khasra No.605/4 admeasuring 0.87 acre. The plaintiff has leased out the premises measuring 4550 sq.ft. to the defendant/appellant and over the said land a shed has been constructed by the defendant for carrying out the business of milk and milk products. As per the plaintiff, the defendant was in arrears of rent since 01.01.2008 and by issuing notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the 'T.P. Act'), on 25.08.2008 the plaintiff terminated the tenancy of the defendant. As averred by the plaintiff, the Trust is a religious -2- S.A. No.2473/2019 charitable Trust which carries out many religious activities in its premises and for participating in the same large number of people assemble in the Trust temple. As per the plaintiff they did not have proper road to access the Trust temple and due to lack of space for parking vehicles, on 01.09.2008, the trustees passed a resolution for evicting the defendant/appellant from the tenanting premises to acquire the vacant land for the use of Trust so that vehicles could be parked on it.
4. The defendant, by filing a reply to the averments made in the plaint, took a stand that for the last 50 years they have been running the business over the said land and the plaintiff stopped accepting the rent from the defendant and have increased the monthly rent from Rs.1000 per month to Rs.5000 per month. As per the defendant, the plaintiff has no bonafide need as has been claimed but the premises has to be leased out to some other person and, therefore, eviction is sought. As per the defendant, the plaintiff has other vacant land which can be used by them to fulfill their bonafide need and as such, he has denied the need of the plaintiff.
5. Parties adduced their evidence and finally the trial Court decreed the suit vide judgment and decree dated 20.10.2015. As per the issues framed by the trial Court, the trial Court has given the finding in favour of the plaintiff in respect of two issues- first is of the arrears of rent not paid by the defendant w.e.f. 01.01.2008 and second in respect of the bonafide need. The trial Court has given the finding that the Trust bonafidely needs the disputed land because they have no sufficient -3- S.A. No.2473/2019 place to organize the social and religious functions in their temple.
6. An appeal was preferred by the defendant/appellant challenging the judgment and decree. During the pendency of the appeal, the appellant has also filed an application under Order 6 Rule 17 of C.P.C. stating therein that the written statement is required to be amended to the extent that the plaintiff has not filed any suit against other tenants and intentionally choose the defendant. An amendment is also sought to the extent that one pond was levelled by the plaintiff and also leased out. As such, it is clear that the bonafide need as shown by the plaintiff could have been fulfilled by the levelled pond but deliberately eviction of the defendant is being sought, although the plaintiff has no bonafide need for the suit land. An application under Order 6 Rule 9 of CPC has also been filed for appointing a Commissioner to ascertain the said fact regarding levelling of the pond which is measuring two acres and after that the same was leased out but those applications have also been rejected by the Appellate Court. The Appellate Court has reiterated the same facts as has been mentioned by the trial Court and also approved the finding given by the trial Court. The Appellate Court has observed that the plaintiff is a Trust and the provisions of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as the 'Accommodation Control Act') are not applicable. The eviction of the defendant is governed with the provisions of Section 106 of the T.P. Act and after terminating the tenancy by giving valid notice under Section 106, the tenancy is terminated and as such, the plaintiff is not required to show the bonafide need.
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7. During the course of the arguments, the learned counsel for the appellant has contended that the application submitted by the appellant under Order 6 Rule 17 of CPC has wrongly been rejected by the Court below without taking note of the fact that the amendment was necessary for proper adjudication of the case and if the said fact is brought on record, the defendant could prove that the plaintiff does not require the land in question bonafidely. It is also contended by the learned counsel for the appellant that DW-3 namely Shri Maneklalji Dadiya has submitted his affidavit under Order 18 Rule 4 of CPC but he was not cross-examined by the plaintiff therefore, his statement remained unrebutted and had to be accepted by the Court. As per the statement made by Shri Maneklalji Dadiya (DW-3), the Trust has seven acres of land in Jabalpur and there were 200 tenants of the Trust. It is also stated in the affidavit that apart from the said land other vacant land is also available in possession of the plaintiff. It is also stated by Shri Maneklalji Dadiya (DW-3) that while discussing the matter with other trustees of the Trust, they agreed to lease out the land to the defendant permanently but in lieu of that they have demanded very huge amount which was not possible for the defendant to pay and, therefore, the matter could not be settled between them. As per the appellant, if the statement of Shri Maneklalji Dadiya (DW-3) is accepted then it clearly indicates that the plaintiff does not require the land bonafidely. It is also stated by the appellant that if the application under Order 6 Rule 17 of CPC is seen it is clear that the said application also contains the fact regarding acquiring the vacant land by the plaintiff. As per the learned counsel for the appellant, merely -5- S.A. No.2473/2019 because the Trust is exempted by filing a suit under the provisions of the Accommodation Control Act does not mean that without proving the bonafide need decree of eviction can be passed. He submits that even otherwise if it is an eviction under the T.P. Act the plaintiff is required to prove the need bonafidely because it should be reasonable but not fanciful. For this purpose, the learned counsel has placed reliance upon the case of Division Bench of this Court reported in AIR 1965 MP 160 (Kanhaiyalal Thakurdas Vs. The Gulab Bai Digambar Jain Vidyalaya) in which he placed reliance in Paragraph-22 of the judgment as under :-
"22. It is plain from this observation that where the exemption intended to be granted is likely to result in the eviction of tenants, the relevant matter to be considered is the ability or inability of the tenant to secure alternative accommodation in which he can either reside if the accommodation is residential or carry on the business which he was carrying on in a non-residential building. Thus, exemption under Section 3(2) of the Act cannot be granted for defeating the provisions of the Act. It can only be granted for furthering the policy and purpose of the Act, namely, the regulation and control of letting, control of rent, and prevention of unreasonable eviction of tenants. In other words, it can be granted for reasonable eviction of tenants, and reasonable, but not fanciful, fixation of rent. Again, it would be relevant and necessary to consider before granting an exemption under Section 3(2) of the Act whether the object for which the landlord-institution is seeking an exemption under Section 3(2) of the Act cannot be achieved by resorting to appropriate proceedings permissible under the Act for the purpose."
He has also pointed out that the Appellate Court, in a sketchy manner, decided the application filed by the defendant under -6- S.A. No.2473/2019 Order 6 Rule 17 of CPC.
8. Considering the arguments advanced by the learned counsel for the appellant and on perusal of the record, it is clear that the suit has been filed by the plaintiff under the provisions of the T.P. Act stating therein that they require the land as they have bonafide need. Admittedly, there is a distinction in the need as required to be proved by the plaintiff/landlord under the provisions of the Accommodation Control Act and that of the provisions of the T.P. Act. In the provisions of T.P. Act, lessor is required to prove bonafide strictly in the manner as is required to be proved under the Accommodation Control Act.
9. So far as the case relied upon by the counsel for the appellant in the case of Kanhaiyalal Thakurdas (supra), it is clear that the said case is of Educational Institution which has been given exemption under Section 3(2) of the Accommodation Control Act. But, here in this case, the plaintiff is not claiming such exemption but claiming eviction under Section 106 of the T.P. Act. As per the provisions of Section 106 of the T.P. Act, the Supreme Court in the case of V. Dhanapal Chettiar vs Yesodai Ammal, reported in 1979(4) SCC 214 has observed as under :-
"Now, under the Transfer of Property Act no ground of eviction of tenant has to be made out once a contractual tenancy is put to end by service of valid notice under Section 106. Once such a notice is served it is open to the lessor to enforce his right of recovery of possession of property."
10. Thus, in my opinion both the Courts below have not committed any illegality granting decree in favour of the plaintiff despite -7- S.A. No.2473/2019 considering the fact that they have other surplus land available or not. The validity of notice of Section 106 of the T.P. Act is not under challenge. As per the application of amendment under Order 6 Rule 17 of CPC and even the statement of DW-3, it is not clear and specific that the plaintiff's Trust has acquired the vacant land during the pendency of the suit. Nowhere it is disclosed and made specific as to when the pond admeasuring area two acres has been levelled and where it is situated and whether that pond is suitable for fulfilling the bonafide need of the plaintiff or not. In absence of any specific allegations and even considering the fact that it is not a case under the provisions of the Accommodation Control Act, the plaintiff is not required to prove the bonafide need strictly in the sense as is required to be proved under the provisions of T.P. Act. Thus, I do not find that the appeal involves any substantial questions of law for consideration.
11. The Supreme Court and also the High Court on several occasions have laid down the scope of interference with the finding of the fact under Section 100 of CPC. Since the finding given by both the Courts below are concurrent finding of facts and during the course of the arguments, the learned counsel for the appellant has failed to establish any perversity in the orders passed by both the Courts below and considering the law laid down by the Supreme Court consistently holding that the jurisdiction of this Court to interfere with the finding of fact under Section 100 of the Code of Civil Procedure is very limited until the finding is either perverse or based on no evidence. This Court cannot interfere with the concurrent finding of fact until and unless the same is perverse or contrary to material on record. [See: -8- S.A. No.2473/2019 Sugani (mst.) v. Rameshwar Das, (2006) 11 SCC 587, Gurdev Kaur v. Kaki, (2007) 1 SCC 546, Praksah Kumar v. State of Gujrat, (2004) 5 SCC 140, Thiagarajan v. Sri Venugopalaswamy B. Koil, (2004) 5 SCC 762 and Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264]. It is equally well settled that this Court in exercise of power under Section 100 of the Code of Civil Procedure cannot re- appreciate evidence. [See: Thimmaiah v. Ningamma, (2000) 7 SCC 409]. It is equally well settled that where on appreciation of evidence, even if two views are possible, this Court in exercise of powers under Section 100 of the Code of Civil Procedure would not interfere. [See: Kondiba Dagadu Kadam v. Savitribai Sopan Guzar, (1999) 3 SCC 722 and Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134]. It has also been held by the Supreme Court that interference with a question of fact is not permissible. [See: Basayya I. Mathad v. Rudrayya S. Mathad, (2008) 3 SCC 120]. In S. Appadurai Nadar v. A. Chokalinga Nadar, (2007) 12 SCC 774 it has been held by the Supreme Court that in exercise of power under Section 100 of CPC, the Courts should be slow in reversing the finding of fact. The finding of fact even if erroneous would not be disturbed in second appeal unless the finding is shown to be perverse and based on surmises and conjectures. [See: Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262, Hafazat Hussain v. Abdul Majeed, (2001) 7 SCC 189 and Bharath Matha v. R. Vijay Rengandathan, (2010) 11 SCC 483].
12. Relying upon the aforesaid decisions, this Court cannot interfere with the concurrent finding of fact given by both the Courts below until and unless the same is perverse or contrary to the material on -9- S.A. No.2473/2019 record.
13. In view of the above, I do not find that this appeal formulates any substantial question of law for consideration and thus, the same stands dismissed.
(SANJAY DWIVEDI) JUDGE Priya.P Digitally signed by Priyanka Pithawe Date: 2019.12.09 17:34:41 +05'30'