Madhya Pradesh High Court
Santosh Kumar Jain vs Shambhulal Krishna Kumar Suhane on 13 March, 1992
Equivalent citations: AIR1993MP46, 1993(0)MPLJ260, AIR 1993 MADHYA PRADESH 46, 1992 MPRCJ 316, (1993) MPLJ 260, (1993) 2 RENCR 1
JUDGMENT Gulab C. Gupta, J.
1. This judgment will also govern the disposal of Second Appeals Nos. 371/87, 372/87 and 389/87 which raise common questions of fact and law for decision of this Court. These are plaintiffs appeals under Section 100, C.P.C. challenging the legality and validity of judgment and decree dated 27-7-1987 passed by Addl. District Judge Kami in Civil Appeals Nos. I9-A/82, 20-A/ 82,18-A/ 82 and 2 J -A/ 82, reversing the judgment and decree passed by the Second Civil Judge Class II, Mudwara in Civil Suits Nos. 171-A/78, 172-A/78, 178-A/78 and 179-A/78 dated 30-4-82 and dismissing the appellant's suit for eviction.
2. Facts covering controversies between the parties and necessary for decision of these appeals are that Sumerchand Jain, the father of the appellants, had let out the suit accommodation, consisting of a shop bearing House No. 27 and godown in the same premises to the defendant by creating two separate tenancies in his favour. The shop was first let out on a rent of Rs. 175/- per month. After sometime the godown was also let out on a monthly rent of Rs. 45/-. Later on, on 11-10-75, the said Shri Sumerchand Jain effected a partition in his family and gave the tenanted shop and godown to present appellants Santosh Kumar and Vinod Kumar who had half and half share in the same. The partition deed was duly registered and is on record as Ex. P-I7. It is therefore alleged that the two plaintiffs became the owners of half and half share of the tenanted premises. Intimation of the partition was duly conveyed to the respondent-tenant who also attorned in their favour and started paying rent to both of them according to their share. The two brothers filed their separate suits on 4-9-78 claiming eviction of the respondent-tenant on the ground that the shop and the godown was bona fide required by them for starting their own business. It was also submitted that a partition wall has to be constructed in the premises so as to properly demarcate the shares of the two brothers and which construction cannot be done without evicting the respondent-tenant. The respondent-tenant, in his written statement admitted that he had taken the tenanted premises on rent of Rs. 175/- and Rs. 45/- per month from Sumerchand Jain. He also admitted that following the partition in the family he had divided the rent and started paying the same in equal share to the two brothers. But he denied that this was the effect of any real partition. According to him, the partition was sham and intended to provide justification for the eviction suit. He also denied that there was any real or genuine need of the shop or godown by the appellant for any purpose, muchless the business. As regards partition and apportionment of rent, he stated in para 2 of his written statement that "It is however admitted that since the partition was the internal affair of the plaintiffs family, he (Shambhulal) did not contest and accepted to pay the half rent to the plaintiff. Even after the partition, the previous terms and conditions of tenancy remained the same." The learned trial Judge on consideration of evidence adduced by the parties held that the appellants were the owners and landlords of the house and needed the same bona fide for starting their own business.
On the aforesaid finding, a decree for eviction was passed. The respondent appealed against the said decree. The learned lower appellate Court reviewed the evidence on record and held that the appellant was not the owner of the House; the partition was effected to clothe him with title only and was neither real nor genuine. On the aforesaid findings the Court also held that the requirement was not bona fide. That is how the appeal was allowed and suit dismissed and the matter is in this Court in the present second appeal.
3. The first important question requiring consideration of this Court is whether the appellant is the owner of the tenanted premises? In Dilbagrai Punjabi v. Sharad Chandra, AIR 1988 SC 1858, it was held that where a landlord claims eviction of his tenant from a non-residential premises on the ground of bona fide requirement of starting a business, it is essential that he also establishes that he is the owner of the disputed premises. This is also the basic requirement of Section 12(l)(f) of the M.P. Accommodation Control Act, 1961. This question also arose before the Supreme Court in Subhash Chandra v. Mohammad Sharif, 1990 Jab LJ 209: (AIR 1990 SC 636), in the context of the right of a tenant to challenge title of his landlord and it was clarified that though the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff, the same cannot be true about a case where the plaintiffs rights are founded on a derivative title. A tenant already in possession can challenge the plaintiffs claim on derivative title showing that the real owner is someone else but this is subject to the rule enunciated under Section 116 of the Evidence Act. This section does not permit the tenant during the continuance of the tenancy, to deny that his landlord had, at the beginning of the tenancy, a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. "A transferee from such a landlord also can claim the benefit but that will be limited to the question of title of the original landlord at the time when the tenant was let in. It was also laid down that as far as the derivative title is concerned, a tenant is entitled to show that the plaintiff has not, as a matter of fact, secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason which renders the transfer to be non-existent in the eye of law. The Court further observed that "these exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy." There can therefore be no dispute with any of the aforesaid principles and hence it may be considered whether the facts on record justify the conclusion that the appellant is not the owner. As noticed earlier, plaint paras 1 and 2 allege that the tenanted premises were let out to the respondent by Sumerchand Jain who wa the owner and the landlord and that the aid Sumerchand effected partition by a regisicred partnership deed dated 11-10-75 transferring title to the present appellants. As far a the title of Sumerchand set out in para 1 is concerned, it is admitted. The partition is claimed to be bogus and solely made to evict the defendant and yet it is stated that it was the internal affair of the plaintiffs family and therefore he did not contest the same and apportioned the rent as agreed with the plaintiffs father." After the attornment as aforesaid, the terms and conditions of the tenancy it is stated, continued to be the same. The notice sent by the appellant to the respondent (Ex. P.30) also alleged that Sumerchand was the owner and the landlord in respect of the house in question. That he effected the alleged partition on 11-10-75 and therefore the tenanted premises were acquired by the two plaintiffs. The reply to this notice (Ex. P-31) does not dispute this part though it disputes the bona fide requirement. Apparently up to the date of filing the written statement, there was no denial of the title of either the appellants or their father. It was only by way of an amendment on 28-9-1979 that the ownership of the appellant was denied and it was submitted that one Radhabai was the owner of the property and she had gifted the same to a temple by the gift dated 10-10-1950. Thus, the respondent's claim that even the appellant's father Sumerchand was not the owner of the tenanted premises and the real owner was Radhabai who had gifted the same to the temple and therefore now the temple was the owner of the tenanted premises. The respondent has also filed Ex. D-9 which is the gift-deed, allegedly executed by Radhabai in favour of Parasnathji Temple. Shambulal as D.W. 2 has deposed that Radhabai was the earlier owner of the tenanted house and after the gift deed, Parasnathji Temple has become the owner. In cross-examination (Para 9) he however admitted that Sumerchand had claimed to be the owner of the house and had given the same to him as a tenant on lease in 1968. He also admitted that he had accepted the said Sumerchand to be the owner and had taken the said house from him. Can the respondent now deny the said title? The decision of the Supreme Court noticed above would not permit him to do so. Section 116 of the Evidence Act would come into operation and act as a bar against him in the matter. Under the circumstances, the respondent could not be permitted to deny the title of Sumerchand. It is unfortunate that the learned lower appellate Court did not consider this aspect of the matter and permitted challenge contrary to the aforesaid law. For this reason, the impugned judgment cannot be accepted and deserves to be set aside.
4. In spite of it, it may be examined whether the challenge is real and bona fide. The entire case of the respondent in this behalf is based on gift deed Ex. D-9. From this gift deed it appears that Radhabai was the daughter of Singhai Kandhilal and had inherited his property worth 79-80 thousand rupees, being the only surviving heir. Out of the property so received, she was gifting away one house to the temple. The gift deed does not mention either the house number or the boundaries of the gifted house and the tenanted premises are the same. Documents Ex. D-2, D-3, D-5 and D-6 would indicate that Radhabai was the recorded owner of at least 8 houses which were in possession of different persons. None of these houses bear the Municipal number 27 which is the number of the tenanted premises. It is therefore not possible to hold that the tenanted premises were ever owned by Radhabai or were ever gifted to the Temple. Shri Khushalchand Jain (D.W. I) who is the Trustee and Treasurer of the said Digamber Jain Mandir has been examined by the respondent and has denied the existence of any gift by Radhabai in favour of the temple. From this evidence it would appear that Digamber Jain Mandir does not claim title over the suit house. Apparently therefore there is no justification whatsoever for holding that Sumerchand was not the owner and Rachabai was the owner of the suit house. Even if the gift deed has to be attached any value, it would only cast some doubt about the title of Sumerchand and nothing more. It would, by itself, not be sufficient to hold that Sumerchand was not the owner. In this connection the judgment of the Supreme Court in Smt. Shanti Sharma v. Smt. Ved Prabha, AIR 1987 SC 2028 deserves notice. This was a case where a lease of the land had been obtained from Delhi Development Authority which was likely to be cancelled because of a dispute between the parties. The Supreme Court considered the meaning of the word "owner" as appearing in the Delhi Rent Control Act and held that the meaning attached to the word "Owner" has to be understood in the proper context, and when it is so considered, it only means that the owner should be something more than the tenant. Under the circumstances, a gift deed which has not been given effect to would not by itself be sufficient to hold that the appellant's father had lost his title.
5. The next important question requiring consideration of this Court is whether the respondent-defendant would be entitled to challenge the title of the appellants? That the appellant's claim of their exclusive title is based on partition does not appear to be in dispute. The question however is whether the respondent is entitled to challenge this partition. If the tenant had not attorned and apportioned the rent as per partition deed, it might have been possible to hold that he is entitled to challenge the title as after attornment and division of rent, the legal position is different. The legal effect there of is that he became the tenant of two landlords in relation to their own share in the tenanted premises. The relationship of landlord and tenant between the parties therefore becomes direct and hence the respondent would be subjected to the same limitations as in relation to title of original landlord. This Court is therefore of the opinion that the respondent was not entitled to challenge the ownership of the appellants, after having acted upon the partition and dividing the tenancy.
6. Even then, it may be considered whether the partition was only for the purpose of this suit and was otherwise bogus. It has come in the evidence that the house in question was originally owned by Kanhaiyalal, father of Sumerchand Jain. Documents Exss. P-2, P-4, P-5, P-6 and P-7 sufficiently establish the same. Thereafter, it came to be owned by Sumerchand Jain. Sumerchand Jain as P.W. 2 has stated that Kanhaiyalal died in 1943 after which the suit house came into his possession. These facts would indicate that the house in question was a joint family house and hence the two plaintiffs would have a share in them from their birth. It is therefore reasonable to hold that Sumerchand had leased out the house as Karta of the family. In this view of the matter, the two plaintiffs would be co-owners and would be able to bring the suit even without the partition, particularly when Sumerchand Jain was not objecting to it. In this view of the matter the partition was legally not required. There is therefore no justification for the submission that the partition was effected to facilitate filing of the suit. Since this was really the main ground for submitting that the partition was bogus, it must be held groundless. Then, the legal validity of the partition cannot be challenged by an outsider. It is well established that only members of the joint family or persons claiming through them can challenge or dispute such a partition. Under the circumstances but for the provisions of Section 12(1)(f)of the Act, this question could not have been enquired into, in this suit. If the legal validity of the partition cannot be challenged by the respondent in a suit for the purpose, can it be allowed to be challenged indirectly and as a collateral issue in the suit. Those who are affected by the partition are happy about it and have taken no step to challenge its legality and validity. In such a situation, question for whose benefit the respondent challenges the legal validity of the partition would also arise. Then, the question of title is not required to be determined in a landlord tenant suit, and yet the provision casts burden on the landlord to prove that he is the owner. But, as held in the Supreme Court in Smt. Shanti Sharma's case (AIR 1987 SC 2028) the word "owner" is not used in a sense of a person having absolute title over the tenanted premises but intends to ensure that the person obtaining eviction would really be able to occupy the tenanted premises which may not be possible if the landlord was not the owner of the tenanted premises. The word "landlord" has been broadly defined and includes an agent of the landlord. In such a situation a person without any ownership would not be relevant for eviction of a tenant. That is why the Supreme Court had held that it is the burden of the landlord to prove that he is the owner in the sense that he would be able to occupy the house after eviction. In such a legal situation, it would be reasonable to hold that though a tenant cannot convert an eviction suit into a suit challenging the title of his landlord, it is the obligation of the landlord to satisfy the Court before obtaining a decree for eviction that he was the owner of the tenanted premises, if this interpretation be correct, the right of respondent tenant to challenge the legal validity of the partition can be upheld but challenge to correctness or otherwise of the partition cannot be permitted. Under the circumstances his objection that the partition deed does not divide property in equal shares or that the partition was done without demand for partition by the sons or that the entire residential portion was allotted to the father, must be held beyond the scope of adjudication in this suit. They are the matters which concern the members of the joint family affected by the partition and if they themselves are not unhapply about it, the respondent has no business to plead for them.
7. The only other circumstance requiring consideration is whether the admission of Sumerchand (PW 2) that even after the partition, the sons are living jointly with him, would establish that partition was not real. The partition deed would indicate that it is the partition of landed property only. The sons may be living with the father either for convenience or for non-availability of any other suitable accommodation but this fact by itself would not make the partition sham and unreal. Then, the partition is effected by a registered document which has its own value and cannot be easily overlooked. Under the circumstances, this Court is unable to accept the finding of the lower appellate Court that the partition was not real.
8. In view of the discussion aforesaid, this Court is of the opinion that the evidence on record fully establishes that the appellants were the owners of the premises. There was therefore no justification for the learned lower appellate Court to reverse the finding recorded by the trial Court.
9. This leads to the consideration of bona fide requirement. The learned trial Judge has found bona fide need fully established but the learned lower appellate Court has set aside the said finding because of the circumstances mentioned in para 21 of the impugned Judgment most of which relate to the partition. Besides the aforesaid cicumstances, the finding against the appellants are that the appellant Santosh Kumar has already joined service and at the present does not require the suit premises for any purpose and that the appellant Vinod Kumar is physically unfit to handle any business. The law does not require the landlord to remain unemployed only to establish that he needs accommodation bona fide. Simply because a landlord gets employment as an interim arrangement, his bona fide need does not become unreal or mala fide. Under the circumstances, the fact that Santosh Kumar had joined service was wholly irrelevant. Similarly, Vinod Kumar being handicapped is also irrelevant. Indeed, a handicapped person finds it difficult to find any employment and hence he has naturally to depend on his own business to earn his living. He cannot be made more handicapped by holding that he cannot do any business, The reasoning of the learned lower appellate Court, in the opinion of this Court, is perverse. The only other circumstances and finding against the appellant is that the suit house was vacated by Premdas and the appellants did not keep the same for their occupation but rented the same out to the respondent and hence their need was not real. It is admitted that the appellants were minor in 1968 when this happened and could not be expected to start their business. The suit was filed in 1978 after about 10 years during which time they have become major and have to start earning their own living. Under the circumstances, the fact that their father let out the premises to the respondents does not mean that their need was not bona fide. This Court had clarified through its several judgments that the need of the landlord in relation to tenanted premises should be need for the present. If the need for the present was real and genuine, it would not become unreal only because in the past it was not felt. In this connection a decision of this Court in Azizunnisha v. Channarilal, 1991 MPLJ 303, deserves notice where in this Court has considered the entire law on the subject and held that the need must be need of the present. It must be real, genuine and reasonable, and should be proved on the basis of objective facts. Apparently the lower appellate Court has not kept these principles in mind and has introduced irrelevant consideration to set aside the Judgment and Decree of the trial Court. For the aforesaid reasons, this Court is not able to sustain the impugned Judgment and Decree. Indeed the opinion of this Court is that the evidence on record fully establishes that the suit-premises are required by the appellants for starting their own business bona fide and that they have no other alternative and suitable accommodation for he said purpose in the city.
10. Since the Court had found sufficient justification for upholding the Judgment and Decree passed by the trial Court, it is not necessary to examine material on record to ascertain whether the need for construction of a partition was real and genuine. Indeed, the Construction of a partition wall would be a necessary consequence of partition and must for that reason be held to be justified.
11. For the aforesaid reasons, the appeals succeed and are allowed by setting aside the Judgments and Decrees passed by Addl. District Judge, Katni. As a necessary consequence the Judgments and Decrees dated 30-8-82 passed by Second Civil Judge Class II Mudwara in Civil Suits Nos. 171-A/78, 172-A/78, 178-A/78 and 179-A/78 are restored, entitling the appellants-plaintiffs to evict the respondent from the suit-premises. Since the respondent is carrying on business in the suit-premises, it is directed that, in case, he gives a written undertaking before the trial Court within one month from today that they will handover vacant possession of the tenanted premises to the appellants by or before 30th June, 1992, the execution of the decrees in so far as their eviction is concerned would not be carried out. In view of the peculiar facts and circumstances of the case, the parties will bear their own costs of this appeal.