Madhya Pradesh High Court

Om Prakash Chourasiya vs Smt. Sarita Saxena on 25 April, 2022

Author: Anjuli Palo

                           Object 1




                                               Civil Revision No.204 of 2021

                                      1




         IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                         BEFORE
            HON'BLE SMT. JUSTICE ANJULI PALO
                 ON THE 25th OF APRIL, 2022
                CIVIL REVISION No. 204 of 2021

Between:-
OM PRAKASH CHOURASIYA S/O SHRI RAMLAL CHOURASIYA,
AGED ABOUT 42 YEARS, OCCUPATION: BUSINESS
R/O SIDDHARTH COMPLEX SHOP NO.9
NEAR GHANTA GHAR, MAIHAR TEHSIL MAIHAR
DISTRICT SATNA M.P. (MADHYA PRADESH)
                                                       .....APPLICANT
(MR. AMIT SAHANI - ADVOCATE)

AND

SMT. SARITA SAXENA W/O LATE SHRI AJIT SAXENA
R/O NEAR GHANTA GHAR, MAIHAR TEHSIL MAIHAR
DISTRICT SATNA M.P. (MADHYA PRADESH)
                                                       .....RESPONDENT
(MR. K.C. GHILDIYAL - SENIOR ADVOCATE WITH
MR. ADITYA VEER SINGH - ADVOCATE )
     .




      This revision coming on for final hearing at motion stage this
day, the court passed the following:

                           ORDER

This civil revision has been filed by the tenant/applicant under Section 23 (E) of the Accommodation Control Act, 1961 Civil Revision No.204 of 2021

read with Section 115 of Civil Procedure Code, 1908 being aggrieved by the order dated 05.07.2021 passed by Sub- Divisional Magistrate-cum-Rent Controlling Authority, Maihar District Satna [hereinafter referred to as the "RCA"] in Case No.6-A-90/2014/2014-15 whereby the RCA has directed the applicant to vacate the suit shop within seven days from the date of order.

2. Brief facts of the case are that, the respondent has filed an application under Section 23(A)(B) of M.P. Accommodation Control Act, 1961 [for brevity "1961 Act"] for vacant possession of suit shop from the applicant before the Sub-Divisional Magistrate-cum-Rent Controlling Authority, Maihar District Satna (M.P.), on the grounds raised by her that she is owner of the shop situated at Ward No. 14, House No.146 in part 141 sheet No.22-B at Maihar. The mother-in-law of the respondent, namely, Premwati executed a Will in her favour on 31.01.2005 and on the basis of said Will, the respondent become the owner of the shop. The applicant taken the suit shop on rent from Premwati and was running the business there. In this regard an agreement has been executed in between the applicant and Premwati (mother-in-law of respondent) on 01.07.1997. Since then rent at the rate of Rs.800/- per month is being paid by the applicant. It is further alleged by the respondent that her son has become major and he is Civil Revision No.204 of 2021

unemployed, therefore, she seeks vacant possession of the shop for running the business on behalf of her son. Hence, she filed a case for eviction under section 23-A of M.P. Accommodation Control Act, 1961 before the RCA.

3. The SDO served notice on the applicant who filed reply and denied the averments made therein. After hearing both the parties, vide order dated 05.07.2021 (Annexure A/1), the Court allowed the application of respondent and initiated the proceedings against the applicant by directing him to vacate the disputed shop within three days and also directed the concerned Department to take action to vacate the shop and give possession of the same to respondent within seven days.

4. The applicant challenged the aforesaid findings in this revision on the ground that Section 23-A of the 1961 Act is a special provision. The RCA has grossly erred in exercising the jurisdiction vested in it and thereby committed material illegality and irregularity. It is also alleged by the applicant that the impugned order is contrary to the evidence available on record. The respondent's son has already started another business. The respondent failed to prove the fact that, she being old aged woman, how she has filed the application on the ground of bonafide requirement to do business. The applicant contended that, he was regularly paying all the rent amount to the Civil Revision No.204 of 2021

respondent. With this respect, he has filed a copy of cheque (Annexure A/3). Thereby, he has prayed to set aside the impugned order dated 05.07.2021 passed in Case No.6-A- 90/2014/2014-15 by the Sub-Divisional Magistrate-cum-Rent Controlling Authority, Maihar, District Satna (M.P.).

5. Learned counsel for the applicant has filed written synopsis. His main contention is that, for the period 1994-2024 the lease of suit property was renewed by the Upper Collector (Nazul) in respect to government property and the landlord was a lessee of the State of M.P.; on 01.07.1997, lessee/landlord/Late Permwati inducted him applicant as tenant in the shop on 31.12.2005; it is alleged by respondent that Late Premwati had executed a Will in favour of respondent/Smt.Sarita Saxena; Premwati expired on 15.12.2007; Ajit Saxena (husband of respondent) died on 28.12.2009; proceedings under Section 23A(b) of 1961 Act were filed by the respondent against the applicant before the RCA on 24.10.2011. The RCA on 05.07.2021 allowed the application for eviction.

6. This civil revision has been filed by the applicant on 09.07.2021 contending that the respondent has no document to prove her ownership over the suit property and the fact of ownership was not accepted by the applicant, therefore, the Civil Revision No.204 of 2021

findings of the RCA are perverse. The applicant is not estopped from denying the derivative title of respondent as held in the case of Subhash Chandra Vs. Mohammad Sharif and Others reported as (1990) 1 SCC 252 wherein the Apex Court has observed in Para 7, which reads as under :-

7. It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff. Where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by Section 116 of the Evidence Act. The 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 the title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The 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-existence in the eye of law. By way of an illustration one may Civil Revision No.204 of 2021

refer to a case where the original landlord had the right of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition. The tenant in such a case can attack the derivative title of the transferee - plaintiff but not on the ground that the transferor - landlord who had initially inducted him in possession did not have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost this right. 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

7. Learned counsel for the applicant in support of his

contentions has further placed reliance on the decisions in the

cases of Parwati Bai Vs. Radhika, (2003) 12 SCC 551 to

substantiate his plea that provisions of M.P. Accommodation

Control Act are not applicable. Further, to highlight that entire

proceeding is coram non judice and impugned order is void and

can be challenged in collateral proceedings he has relied on

Balvant N. Viswamitra and others Vs. Yadav Sadashiv Mule

(Dead) Through L.Rs. and others, (2004) 8 SCC 706.

Civil Revision No.204 of 2021

8. The learned counsel for the respondent has strongly

opposed the contentions of the applicant. It is contended by him

that the applicant himself paid rent to the respondent. The

findings of RCA are findings of fact. Thus, the same cannot be

interfered with on re-appreciation of evidence by this Court in

revisional jurisdiction.

9. Heard both the learned counsel for the parties and perused

the record. With this regard it is worth referring to decision of

Apex Court in the case of Tmt. Kasthuri Radhakrishnan &

Ors. Vs. M. Chinniyan & Anr., (2016) 3 SCC 296 wherein

jurisdiction has been explained in paragraphs 33 & 34 of the

judgment, which read as under:-

"33) So far as the issue pertaining to exercise of revisional jurisdiction of the High Court while hearing revision petition arising out of eviction matter is concerned, it remains no more res integra and stands settled by the Constitution Bench of this Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh (2014) 9 SCC 78. Justice R.M. Lodha, the learned Chief Justice speaking for the Bench held in para 43 thus: "43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below.

Civil Revision No.204 of 2021

The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."

34) Similarly, so far as the scope and nature of inquiry, which is required to be undertaken to examine the title of the landlord in eviction matter is concerned, it also remains no more res integra and stands settled in the case of Sheela & Ors. vs. Firm Prahlad Rai Prem Prakash , (2002) 3 SCC 375. Justice R.C.Lahoti (as His Lordship then was) speaking for the Bench held that the concept of ownership in a landlord- tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the Civil Revision No.204 of 2021

premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit."

10. In Subhash Chandra Vs. Mohammad Sharif and others, (1990) 1 SCC 252 it has been held that the doctrine of estopple ordinarily applies where the tenant has been let into possession by the plaintiff. Where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title, for example as an assignee, donee, vendee, heir, etc. the position is little different. A tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by Section 116 of the Evidence Act, which 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 the title of the original landlord at the when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the Civil Revision No.204 of 2021

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. Thus, the ratio laid down in the case law is not applicable in the instant case the applicant himself admitted that the respondent is the landlord so he has paid the rent to her by cheque.

11. The decision in the case of Parwati Bai (supra) which has been relied by the applicant is further not applicable to the instant case because in the said case the ownership of the suit premises had vested in the Municipality. The provisions of M.P. Accommodation Control Act were not applicable as the entitlement to eviction was to be decided under the provisions of Transfer of Property Act which were attracted. The above situation is not present in the instant case. Hence, same is not applicable to the case at hand.

12. In paragraph 9 of the case law of Balvant N. Viswamitra (supra) it has been observed by the Apex Court that a defect of jurisdiction of the Court goes to the root of the matter and strikes at the very authority of the Court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and, therefore, decree or order passed by a court or an authority which is having no jurisdiction, is a nullity. Validity Civil Revision No.204 of 2021

of such decree or order can be challenged at any stage, even in execution or in collateral proceedings. The aforesaid observation is not applicable to this case, as in the instant case the Rent Controlling Authority had the power to pass the impugned order. In the above case sub-tenancy was involved, which is not the case here.

13. Respondent has also cited an order passed in C.R. No.522/2017 (Vinod Awasthi Vs. Smt. Arti Sharma), in which, it is held that:-

"10. Similarly, Division Bench of this Court in the case of Surtyomal Vs. Smt. Chandabai, 2004 (3) MPLJ 438 has held that revisional jurisdiction of High Court under Section 23-E of the Act is narrower than appeal but wider than power of revision given under Section 115 of CPC."

14. After perusal of the record, particularly the reply filed by

applicant before the RCA, it appears that in formal way he has

challenged the title of the respondent. On the other hand, in

Paragraph 3.9 of this revision, the applicant himself alleged that

from time to time he was paying rent to the respondent and there

was no negligence on his part to pay the rent, for which aspect he Civil Revision No.204 of 2021

has filed Annexure A/3. Thus, certainly he is estopped to

challenge the title of the respondent before this Court.

15. Further, he cross-examined the respondent through his

counsel. The respondent admitted that, Premwati who was the

lease holder of the suit property had executed a Will in favour of

the respondent and she further admitted that before 1997 her

father constructed some shops. In the year 1997, Premwati rented

the suit shop to the applicant. In entire cross examination, the

applicant did not challenge that Premwati was the landlord of the

suit property and executed a Will in favour of respondent. Hence,

rights of Late Premwati as landlord was transferred to the

respondent and she became landlord of the suit property.

16. In the case of U.S. Singhal Vs. State of NCT of Delhi and

Another reported as 2021 SCC OnLine Del 4091, the Court

held that:-

"....the tenant is estopped under Section 116 of the Indian Evidence Act, 1872 from so contending because he has already paid rent to the respondent, thereby accepting the respondent as his landlord. Furthermore, the tenant has not stated as to Civil Revision No.204 of 2021

who is the landlord otherwise, if not the respondent who has claimed ownership of the premises on the basis of his deceased mother's will.

17. In the case of Parvati Devi Vs. Mahinder Singh 1996 (1) AD (Del) 819, it was held that:-

"the petitioner to an eviction petition under Section 14(1)(e) of the DRC Act, 1958 as amended need not show that he was the absolute owner in the strict sense and has to show a better and superior title only to the tenant. The petitioner is only required to show his status in respect of tenanted premises is more than that of the tenant and even imperfectness of title of tenanted premises does not come in the way of eviction of tenant in such case.

18. The Hon'ble Supreme Court in the judgment reported in

R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami

and V.P. Temple reported as (2003) 8 SCC 752 AIR 2003 SC

4548 has laid down that :-

".....Being a civil case, the plaintiff cannot be expected to prove is title beyond any reasonable doubt." and the concept of ownership in a landlord-tenant litigation governed by rent control law has to be distinguished from the one in a title suit. Ownership is a relative term, the import whereof depends on the context in which it is used."

Civil Revision No.204 of 2021

19. The principle laid down in the case of Jiwan Lal Vs.

Gurdial Kaur and Ors reported in 1995 SCC OnLine Del 18 :

(1995) 57 DLT 262 reads as under:-

"There is a tendency on the part of tenants to deny ownership in cases under Section 14(l)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. ownership is not to be proved in absolute terms. The respondent does not claim the ownership of the premises. He is only a tenant and according to him was inducted by Kuldip Kaur, daughter of deceased Raghubir Singh. Raghubir Singh held lease of the premises from Kanna Mal Chhanna Mal. Aw 1 Smt.Gurdayal Kaur has stated that the lease of the property was in the name of her husband Raghubir Singh and after his death she has inherited the same. House tax bill Aw 1/2 is in the name of Raghubir Singh. Therefore, I do not find anything to disturb the finding of the Court below on this point.

20. In the case of Sri Ram Pasricha Vs. Jagannath and Others reported in (1976) 4 Supreme Court Cases 184, the Court held in Para 14 as under:-

".....the relation be- tween the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit it estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such."

Civil Revision No.204 of 2021

21. In the case of Bharat Bhushan Vij Vs. Arti Teckchandani

reported in ILR (2008) II Delhi 1343, the Court observed in

paragraphs 3, 4 & 5, which read as under:

"(3) I consider that where a frivolous challenge is made to the title of the landlord contrary to settled legal position just to prolong the proceedings, such a challenge can be altogether ignored by the ARC. When a tenant takes a plea that the landlord, who had filed the eviction petition was not the owner of the premises, the tenant is obliged to disclose to the Court as to who was the owner of the premises and under whom he/she was tenant.....

(4) The concept of ownership in a landlord-tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the Civil Revision No.204 of 2021

premises and to whom he has been paying rent after the death of the original owner.

(5) This Court in Ram Chander v. Ram Pyari 109 (2004) DLT 388 and plashchemicals Company v. Ashit Chadha and Anr. 114 (2004) DLT 408 have laid down the law that it was not for the tenant to challenge the Will of the landlord and any such challenge made by the tenant is a baseless and frivolous challenge. I, therefore, consider that even if the learned Additional Rent controller did not dwell upon this point, such a challenge made by the tenant would not result into non suiting the landlord. Moreover, the evidence led by the landlady in this case makes it clear that she inherited the property, in question, on the basis of Will left by her father in law. There is no other person who has claimed ownership over the property and this objection was raised just for the sake of raising objection."

22. In the light of principles laid down in above cases by the Supreme Court, this Court is not inclined to go in deep to interpret that as to whether relationship between the parties as landlord and tenant of the shop was established or not; because, apparently the applicant kept mum to show that why he paid rent to the respondent by cheque and actually who is the landlord of the suit shop. He admitted that Premwati was the landlord of the property and executed Will in favour of the respondent, therefore, the relationship between the applicant and respondent is proved as they are landlord and tenant.

23. Another ground of challenge by the applicant is that, the respondent failed to prove her bonafide need for her son's Civil Revision No.204 of 2021

business. It is pertinent to mention here that the respondent has right to choose better accommodation for business of her son. The applicant cannot compel the respondent to continue her business in another premises or start her new business in any particular premises, except the suit premises. Because the landlord is the best judge to consider as to which premises is appropriate or beneficial for her own business or for the need of her family members. Number of factors are responsible for the choice of landlord such as distance, area, facing, comfort, convenience, its commercial value etc.

24. In the case of U.S. Singhal (supra) it has also been held that-

"It is settled law that the tenant cannot dictate or instruct a landlord as to how and which property of the latter should be used for which purpose."

25. It is also important to mention that the respondent proved

her need by examining herself and her son before the RCA in the

cross-examination. Their need was found absolutely un-rebbuted

because the applicant himself failed to produce any evidence to

rebut their evidence. He failed to show any alternative

accommodation is available to them or is perfectly suitable for the Civil Revision No.204 of 2021

new business of respondent's son who became major and

unemployed till date.

26. It is further important to mention here that the applicant did

not produce evidence to rebut the testimony of respondent

witnesses. Further, her opportunity to produce evidence was

closed by the RCA.