Madhya Pradesh High Court
Ku.Prabha Saxena vs Municipal Corporation on 3 March, 2017
-( 1 )- S.A.No.406/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
(Vivek Agarwal, J.)
Second Appeal No.406/2014
.....Appellant : Ku. Prabha Saxena
Versus
.....Respondents : Municipal Corporation, Gwalior & Anr..
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Shri V.K.Bhardwaj, learned senior counsel, with Shri Raman
Tiwari, counsel for the appellant.
Shri D.D.Bansal, learned counsel for the respondents.
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JUDGMENT
(03/3/2017) This second appeal has been filed by the plaintiff against the judgment and decree dated 12.9.2014 passed by the Court of 11th Additional District Judge, Gwalior, in Civil Appeal No.8-A/2014 (Municipal Corporation, Gwalior & Anr. Vs. Kumari Prabha Saxena) by which the judgment and decree dated 20th February, 2013 passed by the 11th Civil Judge, Class II, Gwalior, in Civil Suit No.101-A/2012 has been reversed.
2. The brief facts leading to the present case which are not disputed, are that plaintiff's brother-in-law Brijmohan Verma was allotted a house by the Municipal Committee at Jiwajiganj, Lashkar, Gwalior, bearing quarter No.13. Upon death of Shri Brijmohan Verma, with whom the plaintiff claims to have been residing as a member of family since inception, in the year 1981, plaintiff's sister was residing in the said quarter and she died in the year 1982. Thereafter plaintiff was residing in the said quarter and has paid rent till February, 2012. It is the case of the plaintiff that in the year 1956 Municipal Committee which had allotted the said quarter in favour of Late Brijmohan Verma merged in the -( 2 )- S.A.No.406/2014 Municipal Corporation and the property of the Municipal Committee came into the ownership of Municipal Corporation. After February, 2012, plaintiff deposited the rent by money-order but the same was not accepted by defendant No.1. According to the plaintiff, she could not have been evicted from the said quarter, and therefore, she had filed a suit seeking the relief of declaration and permanent injunction claiming that she be declared as bonafide tenant of the Municipal Corporation and by way of permanent injunction, defendants be stopped from evicting the plaintiff from the suit premises.
3. Learned trial Court vide judgment and decree dated 20.2.2013 held that the suit property is in possession of the plaintiff in her capacity as tenant and defendants No.1 and 2 are trying to illegally dispossess her from the suit property, whereas since plaintiff cannot be treated as an encroacher, defendants had no right to evict her from the suit premises.
4. Being aggrieved by the said judgment and decree, first appeal was filed by the Municipal Corporation in which they raised a specific plea that plaintiff is an encroacher and she is not entitled to continue in the suit premises because neither she is a original allottee nor she can claim herself to be legal heir of the original allottee in terms of the provisions of the Hindu Succession Act, and therefore, she is not entitled to continue as a licensee /tenant and the impugned judgment deserves to be quashed. It was also submitted that all such houses in the said complex are being evicted as they are required under the scheme of re- densification. It was also submitted that trial Court has wrongly applied the ratio of the decision in the case of Rame Gowda (Dead) by L.Rs. Vs. M.Varadappa Naidu (Dead) By L.Rs. and Anr. as reported in (2004) 1 SCC 769.
5. Learned first appellate Court has considered this aspect and has reversed the findings recorded by the trial Court and has held that the impugned judgment and decree is perverse inasmuch as the plaintiff continued to deposit rent on behalf of -( 3 )- S.A.No.406/2014 deceased Brijmohan Verma, and therefore, she cannot be deemed to be the tenant in the suit premises. Learned first appellate Court also held that the plaintiff is not a valid legal heir of the deceased tenant Brijmohan Verma, and therefore, trial Court erred in recording a finding that she is a tenant.
6. Learned counsel for the appellant has drawn attention of this Court to the definition of tenant as is given under Section 2(i) of the Accommodation Control Act, 1961 which reads as under :-
"(i) "tenant" means a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-
tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made."
and has submitted that appellant is covered by this definition of tenant, and therefore, the first appellate Court has erred in holding that plaintiff is not entitled to the reliefs and has wrongly dismissed the suit and reversed the findings in the first appeal.
7. Reliance has been placed on the judgment of the Supreme Court in the case of Rame Gowda (supra), wherein it has been held that even an encroacher should not be removed without following due process of law. Similarly reliance has been placed on the judgment of the Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRS. as reported in (2001) 3 SCC 179 wherein it has been held that even improper functioning of the first appellate Court gives rise to substantial question of law and the judgment of the first appellate Court must display conscious application of mind and record findings supported by reasons on all issues and contentions. Therefore, it is submitted that in absence of application of mind by the first appellate Court on the vital issues involved in the case, there exists a substantial question of law in the present case.
-( 4 )- S.A.No.406/2014Reliance has also been placed on the judgment of this Court in the case of Nizamuddin Ahmed v. Narmada Prasad & ors. as reported in 1976 JLJ 6, wherein it has been held that where two views are possible on the statements of witnesses, and if one of them is accepted by the trial Judge, who had the advantage of seeing the witnesses while they were giving evidence and a good opportunity for deciding for himself whether the witnesses were stating the truth, his view is certainly entitled to great weight, and it should not be disturbed unless there are strong reasons to differ.
8. Learned counsel for the respondents has drawn attention of this Court to the provisions contained in Section 15(2)(a) and (b) of the Hindu Succession Act to point out that plaintiff was not a legal heir of Brijmohan Verma. Similarly, he has drawn attention of this Court to the judgment of Supreme Court in the case of Durga Prasad vs. Narayan Ramchandaani (D) Thr. L.Rs. delivered on 7th February, 2017, wherein the Supreme Court has decided similar controversy and has held that what was required to be seen or who are the heirs of the original tenant and has held that heir has to be given same meaning as is given under Section 15 of the Hindu Succession Act. In the said case, the suit property was taken on rent by the father-in-law of deceased-tenant Lalita i.e. Hem Ram Sharma and after his death his son Baldev (husband of Lalita) became tenant of the suit property. Upon his death, Lalita became tenant of the suit property and upon death of Lalita in terms of Section 15(2)(b) of the Hindu Succession Act in absence of any son or daughter of deceased Lalita, the tenancy would devolve upon the heirs of her husband. Since the appellant does not fall under the category of heir of Lalita's husband, the tenancy of the suit property would not devolve on him nor can he be called as an heir.
9. It is apparent from the definition of tenant as given in Section 2(i) of the Accommodation Control Act, that the words used " any person continuing in possession after the termination -( 5 )- S.A.No.406/2014 of his tenancy" indicate that person referred to in the above clause is the tenant or the sub-tenant, and therefore, the appellant being neither a tenant nor a sub-tenant will not fall under the definition of tenant as given under Section 2(i) and since the plaintiff has already been evicted from the suit premises, therefore, the ratio of the judgment in the case of Rame Gowda (supra) is not applicable in the present case. Besides this, the ratio of the judgment in the case of Durga Prasad (supra) is squarely applicable to the facts of the present case and admittedly plaintiff being not a legal heir within the meaning of Section 15(2)(a) and (b) of the Hindu Succession Act of Late Brijmohan Verma is not entitled to be declared as a tenant and to continue in the suit premises on the strength of such declaration. Thus, the first appellate Court has rightly reversed the findings of the trial Court holding that appellant being not a legal heir of either first class or second of the original tenant Late Brijmohan Verma is not entitled to a declaration of being declared as tenant and on that strength to continue in the suit premises. Thus, there is no scope for interference in the findings recorded by the first appellate Court as no substantial question of law arises inasmuch as the first appellate Court has rightly appreciated the evidence on record and has arrived at the conclusions meticulously. Thus, the appeal fails and is dismissed. Parties to bear their own cost.
(Vivek Agarwal) Judge ms/-