Madhya Pradesh High Court

Rajendra Shivhare vs Gopal Krishan (Dead) Thr. Shyam ... on 9 March, 2021

Author: Gurpal Singh Ahluwalia

        THE HIGH COURT OF MADHYA PRADESH 1
                         SA 942/2019
   Rajendra Shivhare vs. Gopalkrishan, adopted son Gyasiram
  (dead) through Legal Representatives Shyam Sunder Sharma
                           and Ors.

Gwalior, Dated :09/03/2021

       Shri RK Soni, counsel for the appellant.

      This Second Appeal under Section 100 of CrPC has been filed

against the judgment and decree dated 18/12/2018 passed by First

Additional District Judge, Shivpuri in Civil Appeal No. 500022/2013,

arising out of judgment and decree dated 18/05/2013 passed by First

Additional Civil Judge, Class-I, Shivpuri in Civil Suit No.1-A /2012.

      The necessary facts for disposal of present appeal in short are

that the respondent/plaintiff filed a suit for eviction as well as

recovery of arrears of rent against the appellant. It was the claim of

the plaintiff that he is the owner of the suit property by virtue of

registered sale deed dated 05/07/2008, having purchased the property

from Ramcharan Lal Mahajan through his power of attorney. It was

also case of the plaintiff that the appellant was already in possession

of the property in dispute in the capacity of a tenant much prior to the

registration of sale deed on monthly rent of Rs.800/- and after

execution of the sale deed, the appellant/ defendant became a tenant

of the plaintiff/respondent. It was further pleaded that neither the rent

was paid by the appellant nor the rent note was executed. It was also

the case of the plaintiff that the appellant is not doing any business in

the tenanted premises. The son of the plaintiff, namely, Purshottam is THE HIGH COURT OF MADHYA PRADESH 2 SA 942/2019 Rajendra Shivhare vs. Gopalkrishan, adopted son Gyasiram (dead) through Legal Representatives Shyam Sunder Sharma and Ors.

an unemployed and for opening his business, no vacant shop is

available in Shivpuri town, therefore, the shop in question is required

for bona fide need for non-residential purpose of his son. It was

further pleaded by the plaintiff that he sent a notice to the

appellant/defendant which was not taken by the appellant/ defendant

and, therefore, the rent is due from 05/07/2008 to 01/03/2011 and

accordingly, arrears of rent of Rs.29,600/- was also prayed.

The appellant filed his written statement and denied that the

plaintiff is the owner of the property in dispute. It was pleaded that

the property belongs to one Gyasiram and the plaintiff has no right to

file the suit and it is incorrect to say that the appellant is not doing any

business and the bona fide need for non-residential purpose was also

denied. It was further pleaded that initially the plaintiff had claimed

himself to be an adopted son of Gyasiram and accordingly, the

plaintiff started claiming ownership of the properties of Gyasiram.

Since one Kamta Prasad was adopted by Gyasiram, therefore, Kamta

Prasad filed a suit against the plaintiff for possession of immovable

propery as well as for declaration of adoption deed executed by

Gyasiram in favour of the plaintiff/ Gopalkrishan as null and void.

Accordingly, the said suit was allowed and the adoption deed

executed in favour of the plaintiff/ Gopalkrishan was declared as null THE HIGH COURT OF MADHYA PRADESH 3 SA 942/2019 Rajendra Shivhare vs. Gopalkrishan, adopted son Gyasiram (dead) through Legal Representatives Shyam Sunder Sharma and Ors.

and void and it was also declared that Kamta Prasad is entitled to take

the possession of properties which were the subject-matter of the said

suit.

The Trial Court, after framing issues and recording the evidence

of the parties, decreed the suit and a decree of eviction was passed

against the appellant. The appellant was also directed to pay

Rs.29,600/- towards the arrears of rent and it was further directed that

till the possession is given, the appellant shall continue to pay

Rs.800/- per month by way of mesne profit.

Being aggrieved by the judgment and decree passed by the Trial

Court, the appellant preferred an appeal, which too has been

dismissed by the Appellate Court.

Challenging the judgment and decree passed by the Courts

below, it is submitted by the Counsel for the appellant that the Courts

below committed a material illegality by relying upon the sale deed

executed by one Anil Choksey in favour of Gopalkrishan because the

property in question was the subject-matter of the suit which was filed

by Kamta Prasad against the plaintiff and in fact, Gyasiram was the

owner of the property in question.

Considered the submissions made by the Counsel for the

appellant.

THE HIGH COURT OF MADHYA PRADESH 4 SA 942/2019 Rajendra Shivhare vs. Gopalkrishan, adopted son Gyasiram (dead) through Legal Representatives Shyam Sunder Sharma and Ors.

The appellant has filed the copy of the judgment and decree

dated 17th February, 1985 passed by Second Additional District Judge,

Gwalior (Linked Court Shivpuri) in Civil Suit No.1-A/1964 by which,

it was held that the plaintiff therein, namely, Kamta Prasad is entitled

for the possession of property as well as the adoption deed dated

30/06/1960 of the defendant therein i.e. Gopalkrishan (plaintiff in the

present suit) was declared as null and void. The judgment and decree

have been placed on record as Ex. D1 and Ex.D2. First Appeal

No.121/1966 filed by Gopalkrishan was also dismissed by this Court

by judgment and decree dated 24-01-1972 Ex.D-3. For the reasons

best known to the appellant, he did not file the copy of schedule of the

property which was the subject matter of Civil Suit No. 1-A/1964

filed by Kamta Prasad against Gopalkrishan

Thus, it is not clear that whether the shop in question was the

subject-matter of Civil Suit No.1-A/1964 or not. Until and unless it is

proved that Gyasiram was the owner the shop in question and the

possession of the same was handed over to Kamta Prasad by virtue of

judgment and decree 17th February, 1965 passed in Civil Suit No.1-

A/1964 by Second Additional District Judge, Gwalior (Linked Court,

Shivpuri), this Court is of the considered opinion that the Courts

below did not commit any mistake by relying upon the registered sale THE HIGH COURT OF MADHYA PRADESH 5 SA 942/2019 Rajendra Shivhare vs. Gopalkrishan, adopted son Gyasiram (dead) through Legal Representatives Shyam Sunder Sharma and Ors.

deed (Ex.P1) dated 5th July, 2008 executed by Anil Choksey through

his Power of Attorney Holder, namely, Ramcharan Lal Mahajan.

Further, the appellant has not claimed that he was the tenant of

Gyasiram. The appellant examined himself as DW1 and in his cross-

examination, he has stated that he has a shop in Katra Mohalla,

Shivpuri which is being run by him in the name and style of Rajendra

Provisional Store. He further admitted that the said shop does not

belong to him. Thereafter, he claimed that he is running the shop on

behalf of Kamta Prasad, who is the adopted son of Gyarsi Khemriya.

On one hand, the appellant/defendant had claimed that he himself is

running the shop and immediately thereafter, he claimed that he is

sitting in the shop on behalf of Kamta Prasad. He further admitted in

his cross-examination that he had not filed any document to show that

the shop in question belong to Kamta Prasad Khemriya. Even Kamta

Prasad Khemriya has not been examined by the appellant.

Under these circumstances, when the appellant has not claimed

himself to be the tenant of Gyasiram or Kamta Prasad and on one

hand, he had claimed that he himself is running the shop, on the other

hand, he immediately claimed that he is sitting in the shop on behalf

of Kamta Prasad and in absence of evidence of Kamta Prasad, this

Court is of the considered opinion the concurrent findings of fact THE HIGH COURT OF MADHYA PRADESH 6 SA 942/2019 Rajendra Shivhare vs. Gopalkrishan, adopted son Gyasiram (dead) through Legal Representatives Shyam Sunder Sharma and Ors.

recorded by the Courts below regarding the ownership of the

plaintiff/Gopalkrishan cannot be said to be perverse.

It is well-established principle of law that this Court while

exercising power under Section 100 of CPC cannot interfere with the

concurrent findings of fact until and unless they are perverse and

contrary to record.

Accordingly, judgment and decree dated 18/12/2018 passed by

First Additional District Judge, Shivpuri in Civil Appeal No.

500022/2013 and judgment and decree dated 18/05/2013 passed by

First Additional Civil Judge, Class-I, Shivpuri in Civil Suit No.1-A of

2012 are hereby affirmed as no substantial question of law arises in

the present appeal.