Madhya Pradesh High Court
Shekh Shakeel vs Sukhlal Kahar on 3 August, 2022
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 3rd OF AUGUST, 2022
SECOND APPEAL No. 269 of 2020
Between:-
1. SHEKH SHAKEEL, S/O LATE SHEKH SADIK,
AGED ABOUT 28 YEARS, R/O IN THE HOUSE OF
SUKHLAL KAHAR, IN RENT, WARD NO.18
ASFABAD, MALVIYAGANJ, ITARSI, TEHSIL
ITARSI, DISTRICT HOSHANGABAD (MADHYA
PRADESH)
2. MUNNA KHAN, S/O LATE SHEKH SADIK, AGED
ABOUT 42 YEARS, R/O IN THE HOUSE OF
SUKHLAL KAHAR, IN RENT WARD NO.18
ASFABAD, MALVIYAGANJ, ITARSI, TEHSIL
ITAR SI, DISTRICT HOSHANGABAD (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI SIDDHARTH GULATEE WITH SHRI SHUBHAM MISRHA -
ADVOCATES)
AND
1. SUKHLAL KAHAR (DEAD) THROUGH LRS
(a) VIPTA KAHAR, W/O LATE SUKHLAL KAHAR,
AGED ABOUT 75 YEARS,
(b) YUVRAJ KAHAR, S/O LATE SUKHLAL KAHAR,
AGED ABOUT 50 YEARS,
(c) PREMSHANKAR KAHAR, S/O LATE SUKHLAL
KAHAR, AGED ABOUT 41 YEARS,
ALL R/O WARD NO.18, LAXMI NARAYAN
SCHOOL KE PASS, SHANKAR MANDIR KE
PEECHE, AFSABAD SHIVPURI NAGAR, ITARSI,
TEHSIL ITARSI DISTRICT HOSHANGABAD
(M.P.)
(d) SANTOSH KAHAR, S/O LATE SUKHLAL
KAHAR, AGED ABOUT 50 YEARS, R/O
GWALTOLI, HOSHANGABAD, TEHSIL AND
DISTRICT HOSHANGABAD (M.P.)
(e) BHAGCHAND KAHAR, S/O LATE SUKHLAL
KAHAR, AGED ABOUT 47 YEARS, R/O GRAM
GURRA, TEHSIL ITARSI, DISTRICT
HOSHANGABAD (M.P.)
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 8/4/2022
6:28:30 PM
2
2-B(i) SMT. ASHA KHAN W/O LATE PAPU RAMJAN,
AGED ABOUT 42 YEARS, WARD NO. 17 NADI
MOHALLA ASFABAD ITARSI TEH ITARSI
(MADHYA PRADESH)
2-B(ii) RANI D/O LATE PAPU RAMJAN, AGED ABOUT 22
YE A R S , WARD NO. 17 NADI MOHALLA
ASFABAD ITARSI TEH ITARSI (MADHYA
PRADESH)
2-B(iii) KU. SAHIBA D/O LATE PAPU RAMJAN, AGED
ABOUT 14 YEARS, OCCUPATION: MINOR THR.
GUARIDAN MOTHER SMT. ASHA KHAN WARD
NO. 17 NADI MOHALLA ASFABAD ITARSI TEH
ITARSI (MADHYA PRADESH)
2-B(iv) KALLO S/O LATE PAPU RAMJAN, AGED ABOUT
16 YEARS, OCCUPATION: MINOR THR.
GUARIDAN MOTHER SMT. ASHA KHAN WARD
NO. 17 NADI MOHALLA ASFABAD ITARSI TEH
ITARSI (MADHYA PRADESH)
2-C. SMT. JUBEDA BEE D/O LATE SHEKH SADIK,
AGED ABOUT 45 YEARS, RAMJIPURA BORI
SARAH TEH. HARSUD (MADHYA PRADESH)
2-D. SMT. SNNO BEE D/O LATE SHEKH SADIK, AGED
ABOUT 30 YEARS, MAKRADA NARSINGHPUR
TEH. AND DISTT. NARSINGHPUR (MADHYA
PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENT NO.2 THOUGH SERVED )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Heard on I.A. No.7942/2022, which is an application under Order 22 Rule 4 CPC for substitution of legal representatives of respondent -1 Sukhlal Kahar read with Order 22 Rule 9 CPC and Section 5 of the Limitation Act.
2. Upon due consideration, the I.A. No.7942/2022 is allowed with the direction to learned counsel for the appellants to substitute the legal representatives as mentioned in the application, today itself.
Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 8/4/2022 6:28:30 PM 33. Heard on admission.
4. This second appeal has been filed by the defendants/appellants challenging the judgment and decree dated 19.12.2019 passed by Ist Additional District Judge, Itarsi, District Hoshangabad in Civil appeal No.01/2017 whereby, confirming the judgment and decree dated 27.09.2016 passed by Second Civil Judge Class-II, Itarsi in Civil Suit No.09-A/2012 whereby, suit for eviction on the ground under Section 12(1)(e) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act") was decreed.
5. In short, the facts are that, the plaintiff/respondent -1 instituted a suit for eviction on the grounds available under Section 12(1) of the Act including the ground under Section 12(1)(e) of the Act alleging that the plaintiff and his sons are in need of the suit/tenanted premises for their residence and there is no other alternative accommodation for their residence in the township of Itarsi. On inter-alia allegations the suit was filed.
6. The defendants appeared and filed written statement denying the plaint allegations and contended that the defendant is not in possession of the tenanted premises from the year 1980, but is in possession of the house since the life time of her husband i.e. from the year 1960 on rent of Rs.10/- per month and is paying rent regularly. It is also contended that the plaintiff is not in need of the tenanted premises for himself or for his sons. On inter-alia contentions the suit was prayed to be dismissed.
7. On the basis of pleadings, learned trial court framed as many as 8 issues and by deciding the issue no.5 & 6 held that the plaintiff is in bonafide need of the suit premises for residence and there is no alternative accommodation available in the township of Itarsi. Upon appeal filed by the Signature Not Verified appellants/defendants, learned first appellate Court vide judgment and decree Signed by: PRASHANT BAGJILEWALE Signing time: 8/4/2022 6:28:30 PM 4 dated 19.12.2019, dismissed the appeal and confirmed the judgment and decree dated 27.09.2016 passed by learned trial Court.
8. Learned counsel for the appellants/defendants submits that the learned Courts below have erred in decreeing the suit for eviction on the ground under Section 12(1)(e) of the Act because the plaintiff has not been able to prove his case for eviction on the ground under Section 12(1)(a) of the Act. He further submits that the plaintiff did not approach to the Court with clean hands and suppressed the several material facts from the Court. It is also submitted that the plaintiff has alternative accommodation in the shape of a plot admeasuring 450 sq. ft., therefore, it cannot be said that the plaintiff is in need of the suit premises. Hence, he prays for admission of the second appeal.
9. Heard learned counsel for the appellants and perused the record.
10. As has been stated in the memo of appeal, there is no dispute about relationship of landlord and tenant between the parties. Merely because of the fact that the defendants are in possession since the life time of Shekh Sadik i.e. from the year 1960, it can not be said that the plaintiff has suppressed the material facts disentitling him to decree of eviction. Even if the contention of the appellants/defendants is taken to be true that the plaintiff is having a plot of an area 450 sq. ft., then also it cannot be said that the plaintiff is having suitable alternative accommodation for his residence. In any case, an open plot can not be said to be an alternative accommodation as against the constructed residential building.
11. Learned Courts below after having considered the entire material available on record held that the plaintiff is in need of the suit premises for residence and there is no alternative accommodation available in the township of Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 8/4/2022 6:28:30 PM 5 Itarsi, which is pure finding of fact. This Court has in the case of Kishore Singh vs Satish Kumar Singhvi 2017 (3) JLJ 375 held that the concurrent findings on the question of bonafide requirement under Section 12(1)(e) of the Act, do not raise any substantial question of law.
12. Accordingly, there being no involvement of substantial question of law, the second appeal deserves to be and is hereby dismissed in limine under Order 41 rule 11 CPC.
13. At this stage, learned counsel for the appellants prays for grant of reasonable time to vacate the suit premises.
14. As the judgment and decree in question was passed on 19.12.2019 and the learned counsel for the appellants is not in a position to disclose the fact about the present status of suit premises, therefore, it is observed that if the appellants/defendants are still in possession of the suit premises and the decree of eviction has not been executed so far, then the appellants/defendants are granted one year time to vacate the suit premises on payment of monthly rent to the plaintiff/landlord on the following conditions:
1. The appellants shall vacate the tenanted premises on or before 31.07.2023.
2. The appellants shall not part with the rented premises to anybody and will pay monthly rent regularly. The arrears, if any, as per judgment and decree passed by the learned Courts below shall also be paid within a period of one month from today.
3. The appellants are also directed to file undertaking mentioning the aforesaid conditions, before the executing Court within a period of 30 days from today and if the appellants fail to file undertaking or to comply any other condition mentioned hereinabove, the respondent/landlord shall Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 8/4/2022 6:28:30 PM 6 be free to execute the decree of eviction forthwith.
4. If after filing of the undertaking the appellants do not vacate the rented premises on or before 31.07.2023, they shall be liable for contempt of court.
15. With the aforesaid observations, the second appeal is dismissed. However, without any other as to costs.
(DWARKA DHISH BANSAL) JUDGE pb Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 8/4/2022 6:28:30 PM