Madhya Pradesh High Court
Mangilal And Anr. vs Medh Kshatriya Swarnkar Samaj Kalyan on 6 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:11199
1 SA-863-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
SECOND APPEAL No. 863 of 2004
MANGILAL AND ANR.
Versus
MEDH KSHATRIYA SWARNKAR SAMAJ KALYAN
Appearance:
Shri Pawan Vijaywargiya and Shri Santosh Agrawal - Advocates for
appellants.
Shri K.N. Gupta - Senior Advocate, assisted by Sushri Suhani Dhariwal -
Advocate for respondent.
Reserved on : 01.04.2026
Pronounced on : 06.04.2026
JUDGMENT
This second appeal under Section 100 of CPC has been filed against judgment and decree dated 06/11/2004 passed by Additional District Judge, Sheopur, in Civil Appeal No. 38A/2003, as well as judgment and decree dated 28/08/2003 passed by Civil Judge, Class-I, Sheopur, in Civil Suit No. 111A/2003.
2. Appellants are the defendants who have lost their case from both the Courts below.
3. The facts necessary for disposal of present appeal, in short, are that respondent filed a suit for eviction, as well as for recovery of mesne profits to the tune of Rs. 9,200/-, as well as for further mesne profits @ Rs. 100/- till the possession is delivered. It is the case of plaintiff that plaintiff is the owner Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11199 2 SA-863-2004 of Shop No. 12 situated in Swarnakar Market. The said shop was let out by plaintiff to Tulsiram about 15 to 16 years back on a monthly rent of Rs. 60/-. Plaintiff sent a notice dated 20/06/1996 to Tulsiram for deposit of arrears of rent as well as for vacating the suit premises. After the time limit set out in the notice expired, plaintiff went to the suit shop and found that Tulsiram was not there, whereas defendants were there and they refused to tell anything about Tulsiram. When the whereabouts of Tulsiram were inquired from defendants, then they started picking up a quarrel with plaintiff. It was also pleaded that defendants were found carrying out the business of stitching in the suit shop. Thereafter, plaintiff inquired about the whereabouts of Tulsiram and it came to know that Tulsiram had already expired about 8 years back, and since then, defendants have encroached upon the suit shop.
Accordingly, on 21/09/1998, a notice was sent by plaintiff to defendants through its counsel, and it was mentioned that although defendants are not the tenants, but even then they are carrying out the business in the suit shop without the permission of plaintiffs. In spite of the receipt of notice, defendants did not give any reply, and did not pay the mesne profits for the last 92 months @ Rs. 100/- per month, and even did not hand over the vacant possession of the suit shop. It was further pleaded that defendants have closed the shop for the last seven to eight months. Defendant Nos. 1 and 2 are taxi drivers and they are operating taxis in the city, whereas defendant No. 3 is serving somewhere else. Accordingly, the registered notices were sent at the residential address of defendants, which were received by them on 21/09/1998. However, the notices sent to the address of the suit shop were Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11199 3 SA-863-2004 received back as unserved. Thus, it was pleaded that after the death of Tulsiram, defendants are the encroachers with effect from 01/05/1991 and they are using the suit shop without the consent of plaintiff, and therefore, they are causing financial loss of Rs. 100/- per month to the plaintiff. Accordingly, it was pleaded that since defendants have illegally encroached upon the suit shop, therefore, plaintiff is entitled for mesne profits @ Rs. 100/- from 01/05/1991, i.e., Rs. 9,200/-, and accordingly, a court fee of Rs. 1,084/- was paid for recovery of Rs. 9,200/-. For the purposes of recovery of possession, suit was valued at Rs. 1,200/-, i.e., 12 times of mesne profits of Rs. 100/- per month. It was claimed that the cause of action has arisen after the death of Tulsiram as well as from 21/09/1998 when the notices were served on defendants. Accordingly, it was prayed that a decree for recovery of Rs. 9,200/-, i.e., Rs. 100/- per month from 01/05/1991 till December 1998, as well as for further future mesne profits @ Rs. 100/- per month with 2% interest be awarded. It was also prayed that vacant possession of the suit shop be provided to plaintiff.
4. Defendants filed their written statement and denied the plaint averments. It was denied that they have encroached upon the suit shop. It was their claim that they are the tenants and they have paid rent to plaintiff. It was claimed that Tulsiram was their elder brother who expired in the year 1986 and since then defendants are carrying out the business of stitching and they are depositing the rent. Plaintiff wanted to enhance the rent from Rs. 60/- per month to Rs. 100/-, for which defendants had refused to accede, and accordingly, suit has been filed. In special plea, it was pleaded that in Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11199 4 SA-863-2004 paragraphs two and five of the plaint, plaintiff has treated the defendants as encroachers, therefore, the suit is not maintainable. It was further pleaded that although the plaintiffs have demanded a rent for the last 92 months, but they are only entitled for the rent of the last three years.
5. The trial court, after framing issues and recording evidence, decreed the suit by holding that defendants are not the tenants but they have encroached upon the suit property. It was also held that plaintiffs are entitled for arrears of mesne profits of Rs. 3,600/- and are also entitled for future mesne profits @ Rs. 100/- per month. A decree for possession was also passed against the defendants.
6. Being aggrieved by judgment and decree passed by the Trial Court, defendants preferred an appeal which too has been dismissed.
7. This appeal was admitted on the following substantial questions of law:
"(i) Whether the suit against alleged occupants (defendants) is maintainable without impleading the tenant or his legal representatives, in view of the admitted fact that the suit premises was let out to one Tulsiram?
(ii) In view of the admitted tenancy in favour of Tulsiram, whether the suit could be entertained beyond the provisions of M.P. Accommodation Control Act?"
8. Challenging the judgments and decree passed by the Courts below, it is submitted by counsel for appellants that plaintiff itself had claimed that defendants are encroachers and not the tenants, and therefore, they should have filed a suit for possession and not for eviction. It is further submitted that the plaintiffs have valued the suit @ 12 times of the mesne profits for the purposes of eviction, therefore, admittedly, the suit was filed for eviction Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11199 5 SA-863-2004 under the provisions of the M.P. Accommodation Control Act. Once the case of plaintiff itself is that the landlord-tenant relationship do not exist between the plaintiff and defendants, therefore, suit itself was not maintainable.
9 . Per contra, it is submitted by counsel for respondent that since defendants have admitted in their written statement that they are tenants @ Rs. 60/- per month and they have also paid rent to plaintiff, therefore, once defendants have admitted that they are the tenants, then the Trial Court did not commit any mistake by granting a decree for possession.
10. Heard learned counsel for parties.
11. As already pointed out, plaintiff had filed the suit by describing the defendants as encroachers. It is not the case of plaintiff that defendants were ever inducted as tenants. Even the plaintiff had not claimed any arrears of rent, but they had claimed arrears of mesne profits. There is a basic difference between mesne profits and rent. Rent is payable by the tenant for legally using the suit premises as the same has been let out by the landlord/owner, but mesne profits are damages or compensation paid by a person in wrongful possession of property to the rightful owner. Once the plaintiff itself has claimed that defendants are the encroachers and they are liable to pay mesne profits, and plaintiff itself had claimed that the landlord- tenant relationship does not exist between the parties, then the suit for eviction was not maintainable. However, it is clear from paragraph six of the plaint that the valuation for the purposes of possession was done in accordance with the provisions of M.P. Accommodation Control Act, i.e., 12 times of the mesne profits. As already pointed out, mesne profits are never Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11199 6 SA-863-2004 payable by a tenant. Thus, it is clear that once the defendants were encroachers, then the suit for possession should have been filed and the suit should have been valued at the market price of the property.
12. Although it is submitted by counsel for respondent that respondent is still ready and willing to pay the court fee at the market price of the suit shop, but in the considered opinion of this Court, this contention cannot be accepted at the fag end of this second appeal. The valuation was done consciously by the plaintiff, and it is not its case that even for relief of possession, valuation is to be done @ 12 times of the mesne profits.
13. At this stage, it is submitted by counsel for respondent that the litigant should not suffer on account of the incompetency of its lawyer and, therefore, this Court should find out some via media to give some respite to plaintiff.
14. Although aforesaid submission made by counsel for respondent appears to be very bona fide , but if the rights of defendants are considered, then it would cause great prejudice to them. Defendants had contested the suit by treating it to be a suit under the M.P. Accommodation Control Act, and therefore, in paragraph nine of their written statement, they specifically stated that once the plaintiff has not treated them as tenants and they are being treated as encroachers, therefore, the suit is not maintainable. Thus, it is clear that even otherwise, objection was taken by defendants at the very first instance to the effect that the manner in which the suit has been filed is not maintainable, but still, plaintiff decided to proceed further with the suit without revaluing the suit in accordance with the prayer for possession.
Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:11199 7 SA-863-2004
15. Under these circumstances, once the plaintiff had consciously decided to proceed further with the valuation done by him for the purposes of possession, then it cannot be said that plaintiff would suffer on account of the incompetency of its lawyer. A Court cannot presume that a lawyer is incompetent, and furthermore, counsel engaged by plaintiff was of its own choice. No counsel from legal aid was provided to plaintiff. Once the plaintiff decided to engage a lawyer of his own choice, then now he cannot make a complaint that its lawyer was incompetent. Why a party to the litigation should suffer merely because the opposite party had engaged a lawyer who was not well-conversant with the provisions of law? Under these circumstances, the submission made by counsel for respondent that respondent may be permitted to revalue the suit for possession cannot be accepted because they have missed the bus and, in spite of objection raised by defendants in paragraph nine of their written statement, they did not reconsider the fact as to whether the suit for possession is to be valued on its market value or 12 times of the mesne profits.
16. It is next contended by counsel for respondent that once the defendants had admitted in their written statement that they are tenants, and the Courts below have come to a conclusion that defendants have not paid the rent, therefore, plaintiff is entitled for a decree under Section 12(1)(a) of the M.P. Accommodation Control Act. It is further submitted by counsel for respondent that once an admission has been made by a party, then that is the best evidence and the plaintiff cannot be compelled to lead evidence to prove a fact which was otherwise admitted.
Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:11199 8 SA-863-2004
17. Considered the submission made by counsel for respondent.
18. It is the case of plaintiff that defendants are encroachers, whereas it was the case of defendants that they are tenants. It is a well-established principle of law that plaintiff has to stand on his own legs and he cannot take advantage of the weakness of defendant. The stand of plaintiff was never admitted by defendants and civil case cannot be decided by bypassing the case of plaintiff. It is for the plaintiff either to prove his case or to suffer the consequences. Plaintiff/respondent cannot be allowed to disown its case and rely on the written statement/evidence of tenants/appellants.
19. The Supreme Court in the case of Bharat Singh vs. Bhagirath i, reported in AIR 1966 SC 405 , has held that although admissions are substantive evidence in view of Section 17 and 21 of Evidence Act, but they are not the conclusive proof.
20. The Supreme Court in the case of Nagubai Ammal vs. B. Sharma Rao, reported in (1956) 1 SCC 698 , has held that admission is not a conclusive as to the truth of the matter stated therein but is only a piece of evidence, and weight to be attached to which must depend on the circumstances under which it is made.
21. The Supreme Court in the cases of Balraj Taneja vs. Sunil Madan , reported in (1999) 8 SCC 396 has held as under:
"29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11199 9 SA-863-2004 even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8."
22. The Supreme Court in the case of Asma Lateef vs. Shabbir Ahmad , reported in (2024) 4 SCC 696 , has held as under:
"28. What emerges from a reading of Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] , with which we wholeheartedly concur, is that only on being satisfied that there is no fact which needs to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] also lays down the law that provision of Order 8 Rule 10CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement."
23. Section 17 of Evidence Act defines "admission" which means a statement, whether oral, or documentary, or contained in electronic form, suggestive of any reference as to any fact in issue or relevant fact and which is made by any of the persons, and under the cirucmstances mentioned in subsequent sections. It was the case of plaintiff that defendants are encroachers. If defendants had admitted that they are encroachers, then it would have been treated as an admission requiring no further proof by plaintiff, but defendants never admitted that they are encroachers. Under Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11199 10 SA-863-2004 these circumstances, it was obligatory on the part of the plaintiff to stand on his own legs and to prove that defendants were encroachers, and in that case, as already pointed out, the suit should have been valued on the market value of the property.
24. It is not out of place to mention here that even otherwise, plaintiff has not filed any cross-objection challenging the finding recorded by the Courts below that defendants are encroachers. Furthermore, even otherwise, they could not have filed any cross-objection contrary to what they had pleaded and succeeded before the court below.
25. Considering the fact that not only it was the case of plaintiff that defendants are encroachers, but even the Courts below came to the conclusion that defendants are enrocroachers, then it should have been seen as to whether suit has been filed for possession or not? Valuation of suit done by plaintiff in paragraph six of the plaint was the best guiding factor to ascertain as to whether the suit was filed for possession or for eviction under Section 12 of the M.P. Accommodation Control Act. Since the suit was not properly valued for the purposes of possession, therefore, the Courts below, after having held that that defendants were not tenants but they are encroachers, should not have granted a decree for possession as it has caused serious prejudice to defendants.
26. Accordingly, both the substantial questions of law are answered in favour of defendants/appellants and against the plaintiff.
27. No other argument is advanced by counsel for parties.
28. For the reasons mentioned above, suit filed by plaintiff has to fail, Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:11199 11 SA-863-2004 and accordingly, judgment and decree dated 06/11/2004 passed by Additional District Judge, Sheopur, in Civil Appeal No. 38A/2003, as well as judgment and decree dated 28/08/2003 passed by Civil Judge, Class-I, Sheopur, in Civil Suit No. 111A/2003 are hereby set aside and suit filed by plaintiff is hereby dismissed. However, plaintiff is granted liberty that, if so advised, it can file a fresh suit for possession.
29. With aforesaid observations, appeal is hereby allowed.
(G. S. AHLUWALIA) JUDGE AKS Signature Not Verified Signed by: ALOK KUMAR Signing time: 06-04-2026 06:21:59 PM