Madhya Pradesh High Court

Parvat Singh vs Krishi Upaj Mandi Samiti Thr. on 8 December, 2021

Author: Gurpal Singh Ahluwalia

                              1
        THE HIGH COURT OF MADHYA PRADESH
                 Second Appeal No.329/2021
 Parvat Singh and another Vs. Krishi Upaj Mandi Samiti Guna
                        and another

Gwalior, Dated:08-12-2021

      Shri Sanjay Kumar Mishra, Advocate for appellants.

      This Second Appeal under Section 100 of CPC has been filed

against the judgment and decree dated 29/2/2020 passed by Seventh

Additional District Judge, Guna in Regular Civil Appeal No.52/2016,

thereby affirming the judgment and decree dated 30/4/2016 passed by

Fourth Civil Judge, Class-II, Guna in Regular Civil Suit No.4A/2015,

by which a decree of possession, arrears of rent & mesne profits has

been passed against the appellants.

2.    The appellants have proposed the following substantial

questions of law:-

     "(1)   Whether the suit filed by plaintiffs/respondents

against defendants/appellants is maintainable in the light of section 3 of M.P. Accommodation Control Act 1961 when specifically plaintiffs are the local body constituted under M.P. State Acts ? (2) Whether, learned both the Courts below erred in substantial error of law in decreeing the suit of plaintiffs/respondents without proving the case by them as per section 106 of Transfer of Property Act 1882 ?

(3) Whether plaintiffs/respondents have terminated the lease/tenancy according to section 106 of Transfer of Property Act 1882 ?

(4) Whether learned both the courts below erred in decreeing the suit filed by plaintiffs/respondents when plaintiffs concealed about arrear of rent due upon defendants/appellants ?

or In the facts and circumstances of the case this Hon'ble High Court deems fit to frame any other

THE HIGH COURT OF MADHYA PRADESH Second Appeal No.329/2021 Parvat Singh and another Vs. Krishi Upaj Mandi Samiti Guna and another

substantial question of law, that may kindly be framed."

3. It is submitted by the counsel for the appellants that the

respondents/plaintiffs filed a suit for eviction under Section 12 (1) (a)

of the MP Accommodation Control Act on the ground that the suit

shop was let out to the father of the appellants and after his death, the

appellants are jointly carrying out their business in the suit premises.

The tenancy of the father of the appellants was verbal and on

monthly basis. Earlier the plaintiffs/respondents had filed a suit for

eviction which was on the ground of arrears of rent. The said suit

was dismissed with a finding that the plaintiffs/respondents have

failed to prove that the appellants are in arrears of rent. However, the

appellants were held to be the tenants of the respondents/plaintiffs at

the monthly rent of Rs.168/-. It was pleaded that in spite of that, the

appellants are not making payment of rent and accordingly, a

registered notice was sent thereby terminating the tenancy as well as

for handing over the possession. The said registered notice was

served on the appellants/defendants which was duly replied by them,

but in spite of that neither the vacant possession has been delivered

nor the arrears of rent have been paid. It was further pleaded that the

appellants are regularly utilizing the shop in question. It was further

pleaded that the shop in question is the property of Krishi Upaj

THE HIGH COURT OF MADHYA PRADESH Second Appeal No.329/2021 Parvat Singh and another Vs. Krishi Upaj Mandi Samiti Guna and another

Mandi Samiti, Guna and the appellants are in illegal possession of

shop no.6. Thus, a suit was also filed for recovery of arrears of rent,

for vacant possession as well as for mesne profit at the rate of

Rs.300/- per month till the possession is delivered.

4. The appellants/defendants filed their written statement and

admitted that the plaintiff no.1 is the President and the plaintiff no.2

is the Secretary of Krishi Upaj Mandi Samiti, Guna. It was further

pleaded that the appellants are in possession of shop no.6 being the

tenant of the plaintiffs. It was further admitted that the appellants are

in possession of the suit shop on the monthly rent of Rs.168/-.

However, it was claimed that the suit has been filed in an illegal

manner and the same is not maintainable in the Civil Court. The

burden is on the plaintiffs to prove that the appellants have not paid

the rent. The receipt of registered notice sent by the plaintiffs was

also admitted and it was also pleaded that the appellants/defendants

have duly responded to the said notice. The appellants denied that by

virtue of the notice, their tenancy was terminated. It was further

pleaded that the plaintiffs have no right to get the suit shop no.6

vacated. The suit itself is not maintainable. It was denied that at

present the monthly rent of the shop in question is Rs.300/- per

month. It is further submitted that the demand of arrears of rent from

THE HIGH COURT OF MADHYA PRADESH Second Appeal No.329/2021 Parvat Singh and another Vs. Krishi Upaj Mandi Samiti Guna and another

1/3/1989 is barred by limitation. The arrears upto 30/1/2015 was also

denied. It was further admitted that the suit shop belongs to the

plaintiffs, but denied that the appellants are in illegal possession of

the suit shop no.6.

5. However, it appears that during the pendency of the suit, the

plaintiffs amended the plaint and an alternative prayer was made that

the tenancy of the appellants has been terminated by issuing a notice

and in spite of that the appellants have neither handed over the

possession of the suit shop nor have paid the arrears of rent and

accordingly, it was also prayed that the plaintiffs are entitled to get

the possession of the suit shop under the Transfer of Property Act.

6. After the plaint was amended, the appellants also consequently

amended their written statement and denied that the plaintiffs are

entitled to get a decree of possession under the Transfer of Property

Act. It was further submitted that neither a notice under the Transfer

of Property Act has been given nor the suit was filed under the

Transfer of Property Act. Since the suit was filed under Section 12(1)

(a) of the M.P. Accommodation Control Act and the notice was also

issued under the said Act, therefore, the amendment would change

the nature of the suit. It was further pleaded that the suit has been

filed by Krishi Upaj Mandi Samiti through its President and

THE HIGH COURT OF MADHYA PRADESH Second Appeal No.329/2021 Parvat Singh and another Vs. Krishi Upaj Mandi Samiti Guna and another

Secretary, whereas the suit property is in the ownership of the Krishi

Upaj Mandi Samiti and under Section 3 of the M.P. Accommodation

Control Act, 1961 the suit by or against the Krishi Upaj Mandi Samiti

is not maintainable.

7. The Trial Court after framing the issues and recording evidence

of the parties held that since the respondents/plaintiffs have already

amended their suit and have also prayed a decree for possession

under the Transfer of Property Act, therefore, the suit is maintainable

and it was also held that the appellants are in arrears of rent and

accordingly, it was decreed that the respondents/plaintiffs are entitled

for arrears of rent from 1/5/2001 to February, 2016 and the appellants

shall hand over the vacant possession of the suit shop within a period

of two months from the date of decree and till the possession is

delivered, the respondents shall be entitled for mesene profit @ of

Rs.168/- per month.

8. Being aggrieved by the judgment and decree passed by the

Trial Court, the appellants preferred an appeal which too has been

dismissed by the Appellate Court by the impugned judgment and

decree dated 29/2/2020.

9. Challenging the judgments and decrees passed by the Courts

below, it is submitted by the counsel for the appellants that under

THE HIGH COURT OF MADHYA PRADESH Second Appeal No.329/2021 Parvat Singh and another Vs. Krishi Upaj Mandi Samiti Guna and another

Section 3 of the M.P. Accommodation Control Act, any suit by or

against the local authority is not maintainable. The notice was given

under the M.P. Accommodation Control Act. The Trial Court had

wrongly permitted the plaintiffs to amend their plaint and to convert

the suit into a suit for possession. No notice under Section 106 of the

Transfer of Property Act was given.

10. Heard learned counsel for the appellants.

11. The notice, which was given by the plaintiffs/respondents, is

Ex.P/3. Paragraph 3 of the said notice reads as under:-

3- esjs i{kdkj dks vki i{kdkjx.k ls 1 ekpZ 1989 ls 168¾00 :i;s izfrekl dh nj ls fdjk;k ysuk 'ks"k fudy jgk gSA ;g jkf'k 51576¾00 :i;s ekg vDVwEcj 2014 rd dh gksrh gSA vki i{kdkjx.k le; ij fdjk;k vnk ugha djrs gS bl dkj.k esjs i{kdkj us vki i{kdkjx.k ds fo:) iwoZ esa Hkh cdk;k fdjk;k fnyk;s tkus rFkk nqdku dk fjDr vkf/kiR; fnyk;s tkus ds fy;s okn izLrqr fd;k Fkk tks U;k;ky; us ;g fy[krs gq;s fujLr dj fn;k Fkk fd vki i{kdkjx.k 168¾00 :i;k izfrekfld fdjk;k tek djkrs jgsaxsA blds ckn vki i{kdkjx.k us le; ij ekfld fdjk;k tek ugha djk;k gS bl dkj.k esjk i{kdkj vki i{kdkjx.k dks nqdku Øekad 6 dk fdjk;snkj ugha j[kuk pkgrk gSA vkius U;k;ky; ds fu.kZ; dk ikyu ugha fd;k bl dkj.k vki i{kdkjx.k us esjs i{kdkj dks cdk;k fdjk;k vnk djus esa e0iz0 LFkku fu;a=.k fo/kku dh /kkjk 12¼1½¼,½ dk nqckjk mYya?ku fd;k gS vkSj vkidh fdjk;snkjh lekIr ekU; dh tkrh gS A ;fn vki viuk fdjk;snkjh ekl fdlh vU; frfFk dks lekIr gksuk ekU;

djrs gks rks bl uksfVl ds fuokZg ds 15 fnol i'pkr iM+us okyh oSlh frfFk dh lekfIr ds lkFk vkidh fdjk;snkjh lekIr dh tkrh gSA fdjk;snkjh lekIr gksrs gh vki i{kdkjx.k nqdku Øekad 6 dk fjDr vkf/kiR; esjs i{kdkj dks lkSafi, vkSj fjDr vkf/kiR; feyus rd 300¾00 :i;s

THE HIGH COURT OF MADHYA PRADESH Second Appeal No.329/2021 Parvat Singh and another Vs. Krishi Upaj Mandi Samiti Guna and another

izfrekfld dh nj ls fdjk;k vnk dhft, ,oa mijksDr cdk;k fdjk;k vnk dhft, vU;Fkk vki i{kdkjx.k ds fo:) l{ke U;k;ky; esa okn izLrqr fd;k tkosxk ftlds leLr ifj.kkeksa dk nkf;Ro vki i{kdkjx.k dk gksxkA

12. From the plain reading of the said notice, it appears that

although the notice was issued under M.P. Accommodation Control

Act, but it was specifically mentioned that the tenancy of the

appellants is hereby terminated and the appellants were directed to

hand over the vacant possession of the shop after expiry of 15 days

from the date of receipt of notice. Section 106 of the Transfer of

Property Act reads as under:-

"Section 106. Duration of certain leases in absence of written contract, or local usage.- (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part, of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub- section.

(4). Every notice under sub-section (1) must be in

THE HIGH COURT OF MADHYA PRADESH Second Appeal No.329/2021 Parvat Singh and another Vs. Krishi Upaj Mandi Samiti Guna and another

writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.]

13. Since the tenancy was a monthly tenancy, therefore, a notice

under Section 106 of the Transfer of Property Act for a period of 15

days was mandatory. Further, the suit was filed on 12/2/2015,

whereas the notice was issued on 9/10/2014, which was duly replied

by the appellants/defendants on 28/10/2014. Thus, it is clear that the

suit was filed much after expiry of 15 days from the date of service of

notice. Vide notice issued by the respondents/plaintiffs, the tenancy

of the appellants/defendants was also specifically terminated. Thus,

this Court is of the considered opinion that the mandatory

requirements of Section 106 of the Transfer of Property Act were

duly complied by issuing notice dated 9/10/2014.

14. No other argument is advanced by the counsel for the