Madhya Pradesh High Court
Raj Kumar And Ashok Kumar S/O Moolchand ... vs Radhey Shyam S/O Chintaram Lohia And ... on 3 May, 2006
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. This second appeal has been filed by the plaintiffs against the impugned judgment and decree dated 25.3.1992 passed by the 1st Additional Judge to the Court of District Judge, Tikamgarh in Civil Appeal No. 4-A/91, whereby the judgment and decree dated 12.12.1990 passed by 1st Civil Judge, Class-II, Tikamgarh has been reversed and set aside and the suit of the plaintiffs has been dismissed.
2. The plaintiffs/appellants filed a suit against the defendants/respondents praying therein that their father Moolchand was a tenant of the suit shop owned by Municipality, Tikamgarh and after the death of their father on 13.12.1985, being sons they inherited the tenancy right and by holding over the tenancy right they are tenants of defendant No. 2. The plaintiffs further prayed that defendant No. 1/respondent No. 1 be directed to deliver possession of the suit shop to them.
3. According to the plaint averments the suit shop was taken by Moolchand, who was father of the plaintiffs and there was relationship of landlord and tenant between Moolchand and the Municipality. This relationship is also mentioned and maintained in the record of the Municipality. In the month of April, 1985 defendant No. 1 requested Moolchand to deliver possession of the suit shop for 3-4 months and it was assured by defendant No. 1 that after 3-4 months he would deliver possession to Moolchand. Since Moolchand was an ailing person and on account of illness he was unable to carry on the business properly, eventually on the assurance given by defendant No. 1 that he would vacate the suit shop, he delivered the possession of the suit shop on temporary basis to him. On account of illness Moolchand breathed his last on 13.12.1985, but the defendant No. 1 did not deliver the possession of the suit shop either to Moolchand or to the plaintiffs who are the sons of Moolchand. Hence the instant suit has been filed.
4. The defendant No. 1 refuted the averments made in the plaint and pleaded that he is possessing the suit shop since 1982 as sub-tenant of Moolchand. Neither Moolchand nor the plaintiffs made any demand to deliver possession. Indeed he is depositing rent in the office of the Municipality since 1980. In the special pleas it has also been pleaded that he gave Rs. 10,000/- towards Pagdi in the year 1982 to said Moolchand and took the suit shop as sub-tenant. The shop was in dilapidated condition and necessary repairs were carried out by him. The defendant No. 1 requested Moolchand to get the suit shop endorsed in the name of defendant No. 1 in the record of Municipality as the tenant of Municipality, but Moolchand despite giving assurance did not act upon and ultimately he passed away. It has been further pleaded that on 20.6.1984 an employee of the Municipality arrived at the suit shop when defendant No. 1 was carrying on the business, where he prepared a Panchnama, thereafter Chief Municipal Officer sent notice dated 3.9.1984 to him as well as to Moolchand. On these pleas it has been prayed in the written statement that the suit be dismissed.
5. Defendant No. 2 Municipality did not contest the suit and remained ex-parte.
6. The trial Court after framing the issues and recording the evidence of the parties, decreed the suit of the plaintiffs holding that Moolchand, who was father of the plaintiffs was the tenant and after his death plaintiffs have become tenants of the Municipality. The defendant, No. 1 was directed to deliver possession of the suit shop to the plaintiffs within two months.
7. Feeling aggrieved by the judgment and decree passed by the trial Court, defendant No. 1 preferred an appeal before the first appellate Court, which has been allowed and the suit has been dismissed. Hence this second appeal has been preferred by the plaintiffs.
8. This Court on 3.8.1993 admitted the appeal on the following substantial questions of law:
(1) Whether the findings arrived at by the lower appellate Court are perverse?
(2) Whether the suit of the plaintiffs-appellants was barred by time as held by the lower appellate Court?
9. I have heard Shri Rakesh Jain, learned Counsel appearing for the appellants/plaintiffs and perused the record.
10. After having heard learned Counsel for the appellants/plaintiffs and perusing the record, I am of the view that this appeal deserves to be allowed.
11. Regarding Substantial Question of Law No. (1) On going through the judgment of the first appellate Court it is gathered that the appellate Court has held the defendant No. 1 to be tenant only on the ground that he was paying rent. In receipt Ex.D-2 the name of Moolchand has been mentioned and the name of defendant No. 1 has not been mentioned. Similarly, in receipt Ex.D-2 the name of Moolchand has been mentioned and the name of defendant No. 1 has not been mentioned. In receipt Ex.D-4 though the name of defendant No. 1 has been mentioned, but under which head an amount of Rs. 100/- was paid, this has not been mentioned in this receipt. The receipt Ex.D-6 dated 14.5.87 is again in the name of Moolchand mentioning that Rs. 400/-was obtained towards rent. Similarly in receipts Ex.D-7 and Ex.D-8 the name of Moolchand as tenant has been mentioned. Thus, even if defendant No. 1 was paying rent, it would be deemed that he was praying rent on behalf of tenant Moolchand only and merely by making payment of rent on behalf of Moolchand, would not establish relationship of landlord and tenant between him and the Municipality.
12. Unamended Section 109 of the said Act which was applicable when the suit was filed deals about Other transfers of Municipal property. According to this section a Council cannot transfer any immovable property except in pursuance of a resolution passed in a meeting by a majority of not less than two third of its members and according to the rules. It would be apposite to quote Section 109 which reads thus:
109. Other transfers of Municipal property.- Subject to such exceptions as the State Government may, by general or special order, direct, no Council shall transfer any immovable property except in pursuance of a resolution passed at a meeting by a majority of not less than two thirds of its members and in accordance with rules made under this Act, and no Council shall transfer any property which has been vested in it by the State Government except with the sanction of the State Government.
Provided that nothing in this section shall apply to leases of immovable property for a term not exceeding three years.
13. Similarly unamended Section 110 of the Act speaks about 'Contracts by or on behalf of Municipality' Under this section any contract which is to be carried out by or on behalf of the Municipality it shall be expressed to be made by the Chief Municipal Officer. Thus, it is the Council alone which is competent to enter into a contract and that too in writing. The Municipality is a public body and none except Council is competent to enter into a contract. In this regard decision of this Court Shajuddin and Ors. v. Nagar Palika Parishad, Sheopurkalan and Anr. 1985 JLJ 486 is relied. Thus the case of respondent No. 1/defendant No. 1 stands nowhere. There is no express resolution of the Municipal Council to allot the shop to defendant No. 1 on tenancy basis nor there is any contract executed between the Chief Municipal Officer on behalf of Municipality and defendant No. 1/respondent No. 1 and, therefore, there is no right to occupy the shop by defendant No. 1/respondent No. 1.
14. Apart from what I have held hereinabove, what would be the mode of execution of the contract, this has been said in Section 111 of the Act which was prevailing on the date of filing of the suit. According to this section every contract made by or on behalf of the Council shall be signed by the Chief Municipal Officer personally if it involves the payment of five hundred rupees or more. In other cases the contract shall be signed either by the Chief Municipal Officer or by such other officer as may be authorised under Section 110. Sub-section (2) further provides that every contract requiring personal signature of the Chief Municipal Officer with the common seal of the Council, Since in the present case there is no express contract signed by the Chief Municipal Officer in favour of defendant No. 1 along with the seal of the Council, the case of respondent No. 1/defendant No. 1 cannot be accepted that he is the tenant in the shop of defendant No. 1/Municipality, Tikamgarh.
15. The Division Bench of this Court in Hari Om Verma and Anr. v. State of M.P. and Ors. 1992 (2) VIBHA 184 has held that under Section 109 of the Act a lease of the immovable property of Municipality can be granted by Council or during its supersession by the Administrator. This decision is fully applicable in the present case. Thus in order to become a tenant there should be a contract and since there is no contract of tenancy between him and the Municipality, as per own case of the defendant No. 1, therefore, merely if it is held that he has deposited the rent, would not establish relationship of landlord and tenant. The Supreme Court in the case of Sheodhari Rai and Ors. v. Suraj Prasad Singh and Ors. has held that merely making payment of rent does not establish relationship of landlord and tenant. Thus, even if the stand of the defendant No. 1 that he has deposited the rent is taken into consideration in toto, would in itself is no a ground to hold that he has become tenant of the Municipality (defendant No. 2). Therefore, the finding of lower appellate Court that because defendant No. 1 has deposited rent he has become the tenant of the defendant No. 2 is not contrary to the law.
Substantial question of law No. (1) is answered accordingly.
16. Regarding Substantial Question of Law No. (2):
The appellate Court has dismissed the suit of plaintiffs on the ground that it is barred by time. According to the learned appellate Court since the suit for declaration has been filed Article 58 of the Indian Limitation Act, 1963 would come into play and as the suit was not filed within three years, therefore, same is barred by time. The said finding and the conclusion of the appellate Court cannot be allowed to remain stand for the simple reason that suit has also been filed for possession and the prescribed period of limitation is 12 years. Even, if the case of defendant No. 1 that he was put in possession in the year 1980 is taken into consideration, since the suit was filed on 21.7.1988, it cannot be said to be barred by time and it is within limitation.
Substantial question of law No. (2) is answered accordingly.
17. In the result this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by the first appellate Court is hereby set aside and the judgment and decree passed by the trial Court is hereby restored. Looking to the facts and circumstances, the parties are directed to bear their own costs so far as this appeal is concerned.