Madhya Pradesh High Court
Smt. Bhagwati Tiwari And Anr. vs Makhanlal Yadav And 2 Ors. on 31 March, 2008
Equivalent citations: AIR 2008 (NOC) 1557 (M. P.)
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
JUDGMENT U.C. Maheshwari, J.
1. The appellants/plaintiffs have directed this appeal under Section 96 of the CPC being aggrieved by the judgment and decree dated 9.9.2002 passed by XIIth Addl. District Judge, Jabalpur in Civil Original Suit No. 89-A/2000 dismissing their suit filed against the respondents for declaration, possession, eviction, arrears of rent and mesne profits.
2. The facts giving rise to this appeal in short are that the appellants herein filed a suit for declaration, possession, eviction, arrears of rent and mesne profits gainst the respondents contending that the House No. 2042 (Old No. 626) situated at Sitlamai, Ward No. 10, Jabalpur, was bought by the appellants from its earlier owners, namely, Gulam Qadir, Sheikh Ramzan, Sheikh Zafar, Mohd. Sameer and Mussamat Sameeran with consideration vide registered sale deed dated 27.2.1989. In two rooms (one room and one Kotha) of the aforesaid house described in the annexed map with the plaint, the predecessor of the respondents, namely, Late Narmada Prasad Yadav, was the tenant of the earlier aforesaid owners. On acquisition of the title by the appellants, such tenancy was attorned by the respondents in favour of the appellants. Accordingly, the respondents became their tenant at the rate of Rs.75 P.M. The predecessor of the respondents was inducted in such premises for residential purpose. The same was remain continued even after attornment of the aforesaid tenancy. The month of the tenancy was the English Calender month commencing from the first day of each month. After attornment of the tenancy, the respondent paid one month rent of March, 1989 to the appellants and thereafter they did not pay the same and became defaulter in that regard. The appellant No. 1 Smt Bhagwati Tiwari was under bonafide, genuine need of such accommodation for the purpose of residence of her family members. Thus, she being widow, filed the application against the respondents for their eviction under Section 23-A of the Accommodation Control Act (in short `The Act') before the Rent Controlling Authority on dated 19.2.1990 as Case No. 19-A/90(7) 89-90. The same was dismissed vide order dated 11.2.91 holding that such proceeding is filed at pre-mature stage before completion of one year from the date of acquisition of the title and the relationship as landlord and tenant has not been proved between them. Subsequent to such dismissal, on completion of one year again an application under Section 23-A of the Act on the ground of bonafide, genuine requirement of residential purpose was filed against the respondents for eviction as Case No. 12-A/90(7)91-92 the same was dismissed vide order dated 26.12.1993 holding that the subsequent application is barred by resjudicata in view of the aforesaid earlier order dated 11.2.91, by which the relationship of the landlord and tenant between them was not found to be proved, on which, the appellants preferred civil revision No. 145/94 before this Court. The same was dismissed by affirming the aforesaid subsequent order of the Rent Controlling Authority. Subsequent to such dismissal a suit for mandatory injunction directing the respondents to vacate such premises stating them to be the licensee of the appellants, was filed. The same was dismissed by the IVth Civil Judge Class-I, Jabalpur in Civil Original Suit No. 697-A/98 vide judgment and decree dated 30.6.2000 holding that such court has no territorial jurisdiction over the matter as the suit is not filed on proper valuation with requisite court fees as the court was having the territorial jurisdiction to decide the suit valued upto Rs.30,000/-to 50,000/-while the valuation of the disputed house was Rs.80,000/-. Simultaneously, it was held that the respondents are not in possession of such accommodation as licensee of the appellants. After dismissal of such suit, the present suit was filed declaring the respondents to be the tenants of the appellants in the aforesaid premises at the rate of Rs.75/-P.M and claiming their eviction from it on the grounds available under Section 12(1)(a), 12(1)(c),12(1)(d),12(1)(e),12(1)(h) and 12(1)(k) of the Act stating that the appellants intimated to the respondents regarding acquisition of the aforesaid title of the house , on which, they attorned their tenancy in their favour and also paid the rent of a month. Thereafter, they became defaulter and the aforesaid other grounds for eviction are also available to the appellants. The suit was filed after giving the notice for termination of tenancy on the aforesaid grounds.
3. In the written statement of the respondents, by denying the averments of the plaint it is stated that there is no relationship of landlord and tenant between them as held by the Rent Controlling Authority. The same is a also upheld by this Court. Therefore, the aforesaid earlier order, having the effect of resjudicata and such findings cannot be interfered by holding the relationship between the parties as landlord and tenant. It is also stated that in the lack of relationship as landlord and tenant between the parties, the appellants are not entitled to get the decree on the ground available for eviction under Section 12 of the Act. The alleged arrears of rent is also denied. As per further averments the respondents never denied the title of the landlord. The alleged need of the appellants is neither bonafide nor genuine as they had additional alternate accommodation with them. The contention of the plaint alleging that the house was damaged by the respondents is also denied. In such premises the prayer for dismissal of the suit is made.
4. In view of the pleadings of the parties as many as nine issues were framed and evidence was recorded, on appreciation of the same, the suit of the appellants was dismissed on all the grounds stated by the appellants in the plaint and it was also held that the relationship as landlord and tenant has not been proved between them, hence this appeal.
5. Along with the appeal, appellants have also filed IA No. 3114/02 under Order 1 Rule 10(2) of the CPC for bringing the legal representatives of Abdul Shakur, Abdul Gafoor alias Acchche Mian and one Smt Subadra Bai on record as defendants in the suit as well as the respondent No. 4 to 13 in this appeal. The same is to be adjudicated while deciding this appeal.
6. Shri S.P.Tripathi, learned appearing counsel for the appellants assailed the impugned judgment saying that in the facts and circumstances of the case and in view of the existing legal position, the trial court ought to have decreed the suit for declaration and eviction with arrears of rent and mesne profits as prayed but under the wrong premises, the same has been dismissed. By elaborating the arguments, he said that it is undisputed facts between the parties that the respondents from the time of their father are the tenants at the rate of Rs.75 P.M. As per the case of the appellants the aforesaid house was purchased by them through registered sale deed from the legal representatives of said Abdul Shakur. As per the averments of the sale deeds , after death of Abdul Shakur and Abdul Gafoor their properties were mutually divided between the legal representatives of both the brothers Abdul Shakur and Abdul Gafoor. In such division, the aforesaid house was given to the sellers from whom the appellants bought it. In such premises, the respondents being the tenants in the premises became the tenants of the seller and thereafter on acquisition of the title by the appellants, they became the tenants of the appellants. In any case, the rights of the appellants as co-owners of such house could not be discarded and co-owner has every right over the property including the right to file the suit for eviction. Thus, the findings of the trial court holding that the relationship between them as landlord and tenant has not been proved,is not correct. He also argued that the order passed by the Rent Controlling Authority on dated 11.2.91 was passed in a proceeding which was not entertainable as the same was filed within a year from the date of acquisition of the title. Hence, such finding was not binding on the appellants in any subsequent litigation. Besides this, such finding was given in the lack of the registered sale deed on record. Subsequently, by filing such document, the other proceedings were filed. In subsequent proceedings of the Rent Controlling Authority, the aforesaid earlier order was not having the effect of resjudicata as the aforesaid earlier proceedings of the Rent Controlling Authority was not the legally filed proceeding in the eye of law. Although the subsequent proceeding was dismissed in the light of earlier order by holding the resjudicata and the same was affirmed by this Court. But in view of the existing legal position, if any finding is given in a proceeding which is not entertainable by the court, then such finding could not be treated as having the effect of resjudicata. He further said that in order to prove the resjudicata, the respondents were bound to prove the pleadings and the issues of the earlier case, otherwise such finding could not be given by the trial court. It is apparent on record that neither the pleadings nor the issues of the earlier proceedings of the RCA was filed by the respondents before the trial court. So, in any case, the findings of the resjudicata given by the trial court is not sustainable.
7. It was also argued that after passing the order in the civil revision and the earlier civil suit for mandatory injunction, the appellants filed the suit for eviction on the basis of his title acquired by them through registered sale deed from the earlier owners, declaring the respondents to be their tenants and the same was not barred by any law. The trial court ought to have declared their title on the basis of the sale deed. In any case, such acquisition of the title was informed to the respondents through notice of termination of the tenancy dated 15.12.89. The same could be treated the notice of attornment of the tenancy but this aspect was not considered by the trial court. By referring the deposition of Mohd. Sabir (PW 3), he said that he being one of the legal representative of Abdul Shakur, proved the title of the appellant and the status of the respondents as tenant in such premises. Accordingly, the attornment of the tenancy was proved. The same are also proved by other documents of the local authorities. So far grounds of eviction are concerned, he said that there was sufficient circumstance to draw the inference for passing the decree of eviction on all the grounds mentioned in the plaint. According to him, the grounds relating to arrears of rent, disclaimer of the title, inconsistent user of the property, bonafide genuine requirement of the appellant, acquisition of the sufficient accommodation by the respondent for their need, causing substantial damage to the disputed property by the respondents are proved with all probabilities and there was no occasion to refuse the decree on such grounds. In such background, firstly, he prayed for decreeing the suit by setting aside the impugned judgment and decree. In alternative, he said that if the court comes to the conclusion that for the purpose of declaration the presence of all the legal representatives of the earlier owners and the wife of Narmada Pradad Yadav are necessary then by allowing this application for impleading all such persons as respondents herein and as defendants in the plaint the case be remanded to the trial court to decide afresh with appropriate directions.
8. On the other hand Shri Girish Shrivastava, learned appearing counsel for the respondent by justifying the impugned judgment and decree said the same is based on proper appreciation of evidence and also in conformity with law. It does not require any interference at this stage. He further said that in view of the findings of the aforesaid civil revision holding that there is no relationship between the parties as landlord and tenant, the subsequent suit is barred on that ground in view of the principle of resjudicata. He further said that in the lack of any evidence of attornment of the tenancy, the appellants could not be declared to be the landlord of the respondents. So far the grounds of eviction stated by the appellants are concerned, on merits, he said that the respondents never denied their tenancy in such accommodation of such landlords who inducted them but they denied to be the tenants of the appellants, he also said that the tenant has a right to challenge the derivative title of the appellants and in such way, the same could not be a ground to pass the decree against them on the ground of nuisance or disclaimer or the title of the landlord. So far arrears of rent is concerned, he said that the tenancy was at the rate of Rs.35/-PM with Abdul Shakur and Abdul Gafoor and at the initial stage of the suit there was a dispute regarding rate of rent and also in respect of the quantum of arrears of the rent, hence, the provision of Section 13 of the Act was arrested. As soon as the interim order was passed by the trial court, the same was complied with by the respondents and the directed rent was deposited within time. Therefore, the ground under Section 12(1)(a) regarding arrears of rent is not made out. So far bonafide, genuine requirement is concerned, he said that firstly, the accommodation is claimed by the appellant for residential purpose, while the same was given by the landlords for non-residential purpose. In such premises, it could not be inferred that the respondents are using the same for any inconsistent purpose. Besides this, in view of the available evidence, it is apparent that the appellants have various alternate accommodation with them for the alleged need but no explanation about such available accommodation has been purforth by them in their pleadings, hence, their need could not be termed to be bonafide and genuine in any manner. The respondents themselves acquired sufficient accommodation for their alleged need has not been proved by the appellants by cogent and reliable evidence. So far damaging the house by the respondents, is concerned, the same has not been proved by the appellants. Therefore, even on holding the relationship between the parties as landlord and tenant, there is no circumstance to pass the decree for eviction against them, hence in that way also this appeal deserves to be dismissed and prayed for dismissing the same.
9. Having heard the counsel after examining the record and perusing the impugned judgment and decree, I am of the considered view that the trial court has not committed any error in dismissing the suit on the grounds of eviction under the Act stated by the appellants but it committed an error in holding that there is no relationship as landlord and tenant between the parties because of the following reasons.
10. From the record it is apparent that the aforesaid house was purchased by the appellants from the legal representatives of Abdul Shakur vide registered sale deed dated 27.2.89(Ex.P/1). As per averments of the sale deed the aforesaid house was received by the sellers in mutual partition between the legal representatives of late Abdul Shakur and Abdul Gafoor alias Acheche Mian, while as per admission of the respondents, they are in possession of such house as tenants of Abdul Gafoor and Abdul Shakur and not the appellants as they never attorned their tenancy in favour of the appellants. This admission of the respondents shows that Abdul Shakur was the co-owner of such house with the Abdul Gafoor and on demise of Abdul Shakur his legal representatives the sellers of the aforesaid sale deed became the owners of the aforesaid house and on executing the aforesaid sale deed such rights have been acquired by the appellants. In such way, the appellants have also become the co-owners of the house. It is settled preposition of the law that every co-owner of the property is owner of every part of such property till the same is not partitioned between them or their share are not separated. Thus in such premises the suit for eviction could be filed by the co-owners and presence of other co-owners in such suit are not required. Besides the co-owners, against all other persons, such co-owners had the capacity of owner. Such principle was laid down by the Apex court long back in the matter of Ram Pasricha v. Jagannath in which it was held as under:
30. Mr. Tarkunde also submitted that since the Calcutta High Court has held in Yogamaya Pakhira v. Santi Sudha Bose ILR (1968) 2 Cal 70 that a permanent lessee is not an owner within the meaning of Section 13 (1) (f) a co-owner would not be in a better position. We are of opinion that a coowner is as much an owner of the entire property as any sole owner of a property is. We, however, express no opinion about the case of a permanent lessee as this point does not arise in this appeal." Such principle was also laid by this Court in the matter of Amar Singh v. Ramkunwarbai and Ors. 1999 JLJ II 126 in which it was held as under:
8... It is well settled that a co-owner is as much an owner of the entire property as any other owner and so the absence of other coowners will not dis-entitle a co-owner from maintaining an action for eviction when the other co-owners do not object to the same. The Full Bench of this Court in Harbansh (1990 JLJ 97) has also taken the same view. I, therefore, find myself in full agreement with the appellate Court below that the said first wife of late Gaurishankar was not a necessary party to the suit and the suit by other heirs of late Gaurishankar was maintainable.
11. It is undisputed fact on record that the title of the appellants regarding alleged house in the present suit or of any other proceedings has not been challenged by any of the legal representatives of Abdul Shakur and Abdul Gafoor while the tenant did not have any authority to challenge the same. The status of the tenant is remained the same even on partition of the property between amongst the co-owners. The partition of the properties between the co-owners could never be challenged by the tenants. Such principle is laid down by this Court in the matter of Mohanlal Mintoolal and Anr. v. Hakimsingh Gopalsingh and Anr. 1980 MPLJ 361 in which it was held as under:
14. From the rulings... Before partition, every member of the joint family is owner of every part of the property, but as soon as there is partition, the mode of enjoyment is changed, that is to say, the separated members become the owners in their own right, of the share which is allotted to them and they are held to be in exclusive possession of their share. This result which is brought about by the members of the joint Hindu family, a stranger to the joint Hindu family, like a tenant has no right to challenge. If a stranger to joint Hindu family is given a right to control the mode of enjoyment of members of the joint Hindu family, it will lead to drastic results. Therefore, I am of the opinion that the defendants have no right to challenge the partition effected by the plaintiffs and their father....
12. It is true that after acquisition of the title of the aforesaid property by the appellants, Smt. Bhagwati Tiwari filed an application for eviction of the respondents from the accommodation on the ground of bonafide, genuine requirement under Section 23-A of the Act on dated 19.2.1990 before expiry of one year from acquisition of the title. Therefore, such petition was not entertainable. Inspite it, by order dated 11.2.91 (Ex.D/10) in Case No. 19A/90(7)89-90 the same was dismissed holding that the relationship of landlord and tenant has not been established between the parties and also on the ground that the application being pre-mature, is not maintainable. So, firstly, if the application was not maintainable even then the order was passed. Subsequent to such dismissal, the other application under the same provision for bonafide, genuine requirement was filed by the said applicant Bhagwati Bai. The same was dismissed as case No. 12-A/90(7)91-92 vide order dated 26.12.93 (Ex.D/11) holding that the same is barred by the principle of resjudicata in view of the aforesaid earlier order by which the relationship between the parties as landlord and tenant was not found to be proved. The same was challenged by the appellants before this Court under Section 23-E of the Act in Civil Revision No. 145/94. The same was dismissed by affirming the order (Ex.D/11) of the Rent Controlling Authority. Thereafter, the appellant filed the Civil Original Suit No. 697-A/98 for mandatory injunction for eviction stating the respondents to be licensee in such premises but the same was dismissed by IVth Civil Judge Class-I, Jabalpur vide order dated 30.6.2000 holding the suit is barred by territorial jurisdiction of such court as the property was having the worth of Rs.80,000/-while the jurisdiction of such court was between Rs.35000 to Rs.50000/-. Although, as per other findings of the said judgment the respondents are not held to be the licensee of the appellants in such premises then ultimately appellants filed the impugned title suit declaring them to be the landlords of respondents with a prayer for eviction on various grounds available under the Act along with recovery of arrears of rent and mesne profits. The aforesaid title is claimed on the basis of the sale deed (Ex.P/1). Again the objection of resjudicata was taken by the respondents on the basis of the aforesaid earlier order of the RCA affirmed by this Court under the revisional jurisdiction.
13. Firstly, it is settled preposition of the law that in order to prove the question of resjudicata, not only the earlier decision but the pleadings of the earlier case and the issues framed by such court requires to be proved by the parties who took such objection in the suit. Such principle was answered by this Court in the matter of Munishlal v. Kanna 1976 MPWN 1, 93 in which it was held as under:
Held: In order to decide the plea of res judicata the trial Court has relied only on the certified copy of the judgment in the earlier suit. Copies of the pleadings in the earlier have not been filed. In order to find out the real questions in controversy on the basis of pleadings in the earlier suit for deciding question of res judicata, the proper thing to do was to require certified copies of the pleadings in the earlier suit to be filed...
14. It is apparent fact on record that no such pleadings or the issues of the earlier case of the RCA to prove the question of resjudicata are neither filed nor proved on record, therefore, firstly on this count the findings of the trial court regarding resjudicata are not sustainable. Secondly, it is also settle proposition of law that the pre-mature proceeding is not entertainable or maintainable before the court of law and if any order is passed by any authority on merits in such proceedings then same could not be treated as enforcible order in the eye of law as entering to decide the question in non-entertainable proceedings is deprecated by the Apex Court in the matter of T.K. Lathika v. Seth Karsandas Jamnadas in which it was held as under:
9. If the ban contained in the third proviso to Section 11(3) of the Act applies, its corollary is that the petition filed by the landlord has to be expelled on the sole ground that the landlord was then not entitled to file it. In such a situation the Court should not enter into the merits because whatever is said or found on the merits would then be without jurisdiction. High Court should have first decided the question of maintainability of the petition and only if that point was found in the affirmative the merits need have been gone into.
15. It is apparent that the RCA in order dated 11.2.91 held that the application filed under Section 23-A of the Act is pre-mature and not tenable as the same is preferred within one year from the date of acquisition of the title. In such situation, the RCA was not having any right to give any findings on merits of the matter and if such finding was given on merits and subsequently in another proceeding, the same was treated as res-judicata which was upheld by this Court, the same could not be treated as resjudicata in view of the aforesaid decision of the Apex Court in which it is held that if the proceeding is pre-mature and not maintainable then the court has no enter on merits of the matter. Therefore, it is held that the earlier findings of R.C.A on merits in non-entertainable proceedings did not have the effect of resjudicata.
16. Apart the above there is difference between the title suit and the suit filed for eviction under the Accommodation Control Act. It is apparent fact on record that the aforesaid earlier cases were decided by the RCA without considering the sale deed (Ex.P/1), the document of title of the appellants and such authority was not empowered to decide the question of title relating to the property , the same could be decided by the civil court in which the impugned suit was filed. The impugned suit has been filed for eviction based on the title , therefore, it could not be said that the civil court has no jurisdiction to enquire the title and the relationship between the parties for declaring their respective rights. In such way the civil suit was rightly entertained by the civil court. Some time even after having the title the parties for one reason or another could not prove the relationship with the person who is in possession of the property to evict him from such premises. In such situation, on considering the evidence led by the parties, the decree for eviction may be passed on the basis of title. Such question is answered by the Apex Court in the matter of Ram Pasricha v. Jagannath in which it was held as under :" In a suit for ejectment the defendant admitted the title of the plaintiff in regard to the plot and pleaded that he was to remain in possesion of the house until the amount spent by him in its construction was returned by the plaintiff. The plaintiff led evidence about the tenancy set up by him and defendant led evidence about the agreement on which he relied. Both the pleas were clear and specific and the common basis of both the pleas was that the plaintiff was the owner and the defendant was in possession by his permission. In such a case the relationship between the parties would be either that of a landlord and tenant or that of an owner of property and a person put into possession of it by the owner's licence. No other alternative was logically or legitimately possible.
Held that in absence of proof of tenancy and of defendants agreement the conclusion of the High Court in first appeal that the defendant was in possession of the suit premises by the leave and licence of the plaintiff, did not cause prejudice to defendant. There was no error of law if the decree for ejectment was passed. F.A No. 564 of 1958 dated 14.12.191962 (All) affirmed...placitum
17. In view of the aforesaid, on the basis of the title the appellants' suit could have been decreed by the trial court by appreciation of the evidence and considering the sale-deed Ex.P/1, keeping in view the deposition of Mohd Shabir (PW 3) one of the seller, the son of late Abdul Shakur, the co-owner. The trial court was empowered for declaring the rights and relationship of the parties. So, in this way, the findings of the trial court holding that there is no relationship of landlord and tenant between the parties is not sustainable.
18. I would like to examine this case by other way in view of the provision of Section 58 of the Evidence Act which read as under:
58. Facts admitted need not be proved. No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
If the court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.
According to this section, if some facts are admitted by the parties then it is not necessary for the other side to prove the same by some other evidence and such admission of the parties is always binding against them. Besides the aforesaid provision, such admission is also binding on the principle of estopple enumerated under Section 115 of the Evidence Act.
19. On perusing the deposition of respondent No. 2 Anil Kumar Yadav (D.W.1) in para 11, he categorically deposed that ;g dguk lgh gS fd orZeku esa oknxzLr edku dh ekfyd oknh gS A ;g dguk lgh gS fd eSa oknxzLr edku esa fdjk;snkj gWwa A ;g dguk lgh gS fd Hkkxorh ckbZ dks fdjk;k nsus ds fy, eSa U;k;ky; esa fdjk;k tek dj jgk gWaw A Such admission is sufficient circumstance to hold that there is relationship of landlord and tenant between the parties.
20. I have also found a notice (Ex.P/4) given by the appellants to respondent No. 2 on dated 15.12.89 just before filing the first application for eviction in the court of the RCA contending the acquisition of the title of the aforesaid house. The notice and its averments are not specifically denied by the respondents in their written statement even in the cross-examination of the plaintiff, it was not challenged and nothing was stated by respondent No. 2 in this regard on recording his deposition, therefore, such unrebutted evidence gives sufficient circumstance to draw the inference that the intimation of attornment of the tenancy was given to the respondent No. 2 by the appellants.
21. Besides the above, on transferring the immovable property by the landlord through a registered sale-deed in favour of the purchaser then as soon as such document is registered and comes in operation, in such circumstances, the tenant of such premises becomes the tenant of purchaser and inview of such document of transfer the attornment of tenancy may be inferred. Such Principle is laid down by this Court in the matter of Ramprasad v. Dasrath 1989(2) MPWN 228 in which it was held as under:
... In the present case, the tenant/applicant admits the title of Totaram over the suit accommodation and also admits that he was inducted as a tenant by Totaram. The existence of registered sale deed in favour of the landlord non-applicant is also not denied. What has been stated is only this much that the sale-deed has been brought into existence nominally.... for seeking ejectment of the tenant/applicant. Such a plea is not open to a tenant in ejectment proceedings based on landlord/tenant relationship. A registered sale-deed having been executed by the previous owner landlord under whom the tenant was holding by operation of Section 109 of Transfer of Property Act, 1882, the transferee would become the owner of the property and also landlord in relation to the tenant (See Shankar Sahai v. Kanmal and Ors. 1971 JLJ 102...
22. In such premises, the findings of the trial court in this regard are not sustainable, hence by setting aside the same, it is held that after acquisition of the title by the appellants through registered sale-deed (Ex.P/1) and on giving the quit notice to respondents by them. The tenancy of the respondents was attorned in favour of the appellants. In such premises, the relationship between them as landlord and tenant is inferred.
23. After holding the aforesaid relationship between the parties, I proceed to examine the merits of the matter whether on the grounds mentioned by the appellants, they deserve for decree of eviction against the respondents.
24. So far arrears of rent is concerned, the appellants claimed the rent at the rate of Rs.75/-P.M. The quantum of rent has also been claimed on the basis of this rate, while as per the case of the respondents, the rent was only Rs.35/-P.M. Besides this, the derivative title of the appellant was also challenged by the respondents. In such circumstances, the provision of Section 13(1) of the Act was arrested, thus at the initial stage the respondent was not bound to deposit such sum.
They were bound to deposit such sum only on fixing the interim rent by the court. The same was fixed by the trial court at the rate of Rs.75/- P.M. On dated 20.12.01 with a direction to deposit the arrears of three years. In compliance of such order, the respondents have deposited the sum with the trial court on dated 16.1.02 vide receipt No. 35 of Book No. 75580 i.e Rs.3825/- within one month and I am apprised by the counsel for the respondents that subsequent to it, the regular rent has been deposited by them and such submission was not objected by the appellants' counsel. In such circumstances, it is apparent that initially the quantum and the rate of rent, both were disputed, therefore, in view of the law laid down by the Apex court in the matter of Jamnalal v. Radheshyamv , the provision of Section 13(1) of the Act was arrested and the respondents were bound to deposit such sum only after passing the interim order , on passing such order same has been complied with as said above, therefore, it could not be said that that respondents have committed any default in depositing the rent. Hence the decree under Section 12(1)(a) of the Act could not be passed in favour of the appellants.
25. Coming to the question regarding disclaimer of the title of the appellants by the respondents is concerned, it is settled preposition of the law that every tenant has a right to challenge the derivative title of the plaintiff if the relationship as landlord and tenant is not established between them it is apparent on record that respondents never challenged the title of their original landlords by whom they were inducted. On the other hand there is no evidence showing that any point of time before filing the suit by attorning the tenancy, the rent of any period was paid to the appellants by the respondents. In such premises, if by admitting the tenancy of seller if the derivative title of the appellants is denied by the respondents then such could not be treated the ground of disclaimer of title and decree of eviction could not be passed under Section 12(1)(c) of the Act. Such principle is laid down by this Court in the matter of Smt Sugga Bai and Ors. v. Smt Hiralal and Ors. in which it was held as under:
10. Therefore what a tenant cannot be permitted to do is to deny the title of the original lesser. Similarly, he cannot be permitted to deny the derivative title of a reversioner if he has attorned to him...
26. Coming to the other ground regarding inconsistent user of the premises is concerned, firstly the appellants could not proved by cogent and admissible evidence that the respondents were inducted in such premises only for residential purpose on the contrary on perusing the evidence it appears that the same was given for composite purpose and accordingly it was a composite tenancy. Therefore even on using such premises by the respondents for non-residential purposes the decree of eviction either under Section 12(1)(c) or 12(1)(d) could not be passed against them.
27. So far question of bonafide, genuine requirement of such accommodation to the appellants for residential purpose is concerned, the appellant No. 1 Smt Bhagwati Tiwari (PW 1) while recording her deposition categorically deposed in para-12 of her cross-examination that she also purchased the adjoining house to the disputed house and the same got vacated by her from the concerning tenant. She further stated that her one son is residing at Maihar with his family while the other son is residing in some other house of six rooms given to him by his father, such son is insisting her to reside with him. While the other appellant Vijay Kumar (D.W.2) deposed that he is serving at Maihar and his transfer to Jabalpur is not possible. In para-12 of his cross-examination, he categorically stated that appellant No. 1 Smt Bhagwati Tiwari her mother is residing all-alone in her own house, having two rooms one godown and corridor, while his brother is residing in separate place, having two rooms. Accordingly, as per admission of the aforesaid witnesses they have alternate sufficient accommodation with them for the alleged need, if any. Besides this, they also have adjoining house to the disputed house.
As per settled preposition of the law, while filing the suit for eviction on the ground of bonafide, genuine requirement either for residential or non-residential purpose, the plaintiffs like appellants are bound to putforth the account of available alternate accommodation with them in their pleadings. In the lack of such explanation their alleged need could not be held to be bonafide or genuine. In such premises the appellants suit could not be decreed under Section 12(1)(e) of the Act. My aforesaid view is fortified by the decision of the Apex Court in the matter of Hasmat Rai v. Raghunath Prasad in which it was held as under:
16. There is an error apparent...Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12 (1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfil namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the Court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the Trial Court and the first Appellate Court committed a manifest error apparent on the record by upholding the plaintiff's case by awarding possession also on the ground neither pleaded nor suggested the landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the Courts subordinate to it that the respondent- landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists & Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the Courts are accepted as sacrosant yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12 (1)(f) of the Act.
28. So far the ground that by the respondents have acquisitioned the sufficient accommodation of there own for their requirement is concerned, such ground was pleaded by the appellants, thus they were duty bound to prove the same by cogent and reliable evidence with the title deeds of such alleged accommodation but the same is neither produced nor proved by them on record. In the lack of it, mere on some statement of the respondents, no inference could be drawn in favour of the appellants to pass the decree under Section 12(1)(i) of the Act. It is settled proposition of the law that plaintiffs are bound to prove their own case, they cannot get the decree on any weakness of the defendants/respondents. In such premises also, the appellants do not deserve for decree of eviction.
29. So far rate of monthly rent is concerned, the rent Rs. 75/-per month fixed and held by the trial court appears to be based on proper appreciation, thus the same is hereby affirmed.
30. In the aforesaid premises the approach of the trial court holding that there is no relationship between the parties as landlord and tenant is apparently perverse and contrary to law, hence the same is hereby set aside. While, the findings of the trial court regarding dismissal of the suit for eviction holding that appellants failed to prove any of the grounds of eviction enumerated under Section 12(1) of the Act, are hereby affirmed as the same do not require any interference at this stage.
31. In view of the aforesaid findings of relationship between the parties as landlords and tenants, the presence of other co-owners to decide the impugned suit are not necessary, hence the IA No. 3114/02 filed by the appellants under Order 1 Rule 10(2) of the CPC, does not require any further consideration. Hence, the same is hereby disposed of.
32. In view of the aforesaid, by allowing this appeal in part, it is declared that the respondents are in possession of the disputed accommodation as monthly tenants of the appellants at the rate of Rs.75/-per month for composite tenancy, residential and non-residential both. While the remaining findings of the trial court dismissing the suit of the appellants regarding eviction are hereby affirmed. In the facts and circumstances of the case, the parties are directed to bear their own cost throughout. Decree be drawn-up accordingly.
33. The appeal is allowed in part as indicated above.