Madhya Pradesh High Court
Dinesh Alisa Munshi Lakhere vs Devendra Kumar Jain on 25 November, 2019
Author: Anjuli Palo
Bench: Anjuli Palo
1 SA-1616-2019
The High Court Of Madhya Pradesh
SA-1616-2019
(DINESH ALISA MUNSHI LAKHERE Vs DEVENDRA KUMAR JAIN)
7
Jabalpur, Dated : 25-11-2019
Shri Rohit Jain, counsel for the appellant.
Heard on question of admission.
This appeal has been filed by the appellant/defendant No. 1 being
aggrieved by judgment and decree dated 2.3.2019 passed by First Additional
District Judge, Tikamgarh in Regular Civil Appeal No. 70/2016, which arose
out of judgment and decree dated 24.10.2016 passed by Second Civil Judge
Class I Tikamgarh in Civil Suit No. 78A/2015 whereby the appeal filed by the
appellant has been dismissed.
There is concurrent finding against the present appellant. It further
appears from order-sheets dated 14.3.2016, 18.3.2016, 11.4.2016, 6.5.2016,
29.6.2016, 18.7.2016 and 14.9.2016 that after getting various opportunities to
produce the evidence, the appellant has not appeared before the trial Court to
complete the cross examination even though on 14.9.2016 last opportunity
was given to him but he failed to appear before the Court, therefore, the trial
Court has rightly closed his opportunity to produce the evidence. The
appellant cannot be prejudiced due to his own fault. Consequently, learned
Court below gave concurrent finding and held that respondent Kapurchand
(since deceased) was the owner of the suit property because the original owner Babulal died after leaving his only brother Kapurchand. Kapurchand has the succession right over the suit property as prescribed under Section 8 read with Schedule II of the Hindu Succession Act.
The suit was filed for eviction. The appellant admitted that he was the tenant of late Babulal Potdar and he used the property @ Rs.1200/- per month for commercial purpose. He also admitted in his cross-examination that Babulal died in the year 2004, at that time Kapurchand was his sole successor. He gave notice to him in this regard and also for receiving the rent.
2 SA-1616-2019 All these admissions are sufficient to prove that after the death of Babulal, his brother Kapurchand became the landlord of the suit property, therefore, both the Courts below rightly arrived at the conclusion that relationship of landlord-tenant between Kapurchand and the appellant is duly established.
The appellant stated that Babulal executed a will in favour of Shri Shri 1008 Hanumanji Temple, Ananupura Satyanand Yog Ashram, Moniapatha, Anantpura on 20.11.2004 but he did not file any document in support of his contention nor he called such documents through the Court. Further, Kapurchand gave a notice to him for arrears of rent. The appellant himself admitted in cross-examination Para 11 that since death of Babulal or from 2.11.2004 he had not paid rent to Kapurchand. He explained that he received a notice from Shri Shri 1008 Hanumanji Temple, for the arrears of rent. Such statement cannot be accepted because he has not filed any notice nor he proved that he paid arrears of rent to any other. Although he himself was not available for further cross-examination but he admitted the material facts in his cross-examination available on record. Nothing is required to establish the fact that he is the tenant of Kapurchand and he was defaulter. After the death of Kapurchand, present respondent No. 1 Devendra Kumar Jain is a landlord, he is entitled to claim arrears of rent from him.
The learned Courts below rightly appreciated all the evidence in the right perspective. This Court is not inclined to differ from the finding of the Courts below on the grounds raised by the appellant.
Learned counsel for the appellant submits that the findings of the trial Court are erroneous, which are based on the diary of deceased Babulal. Entries of aforesaid diaries Ex. P-1 to P-9 are approved by the Courts below as secondary evidence. Appellant himself stated in his affidavit dated 26.2.2016 in Para 3 that Babulal kept all the record about the rent etc. in a copy which is filed by the respondents. The appellant has not challenged the order passed by the trial Court under Section 65-B of the Indian Evidence Act within the time prescribed before the appellate Court, therefore, his 3 SA-1616-2019 contention cannot be accepted at this stage.
In view of the aforesaid discussion, this Court does not find any substantial question of law in favour of the appellant, therefore, this appeal cannot be admitted. Accordingly, this appeal is hereby dismissed at motion stage.
(SMT. ANJULI PALO) JUDGE PB Digitally signed by PRADYUMNA BARVE Date: 2019.11.26 13:17:15 +05'30'