Sanjeev @ Kailash vs Shyam Manohar
2022 Latest Caselaw 486 MP

                                1

 HIGH COURT OF MADHYA PRADESH AT JABALPUR

               SECOND APPEAL No. 1406/2006

                     Sanjeev alias Kailash
                              Vs.
                   Shyam Manohar & others


Date of Judgment      11/01/2022

Bench Constituted     Single Bench

Order delivered by    Hon'ble Shri Justice Sanjay Dwivedi

Whether approved No
for reporting

Name of counsel for For appellant: Ashish Shroti, Advocate
parties             For Resp. No.1: Shri Imtiyaz Hussain,
                    Advocate.
                    None for other respondents.

Reserved on: 06.01.2022
Delivered on: 11.01.2022

                       JUDGMENT

This appeal has been filed under Section 100 of the Code

of Civil Procedure by the appellant/defendant against the

judgment and decree dated 14.08.2006 passed in Civil Appeal

No. 32-A/2006 arising out of the judgment and decree dated

24.12.2003 passed in Civil Suit No. 21-A/1997 whereby the

appellate court has set aside the judgment and decree

granted under Section 12(1)(a) of the M.P. Accommodation

Control Act, 1961 (hereinafter referred to as 'the Act of 1961'),

but, decreed the suit on the ground of Section 12(1)(c) of the

Act of 1961.

2. The facts in brief are that the respondent No.1/Plaintiff

filed a suit against the appellant/defendant and also against

respondent Nos. 2 and 3 seeking decree of ejectment on the

grounds that they were his tenants and not paid rent since

October, 1994 and, therefore, they were in arrears of rent

since October, 1994 to 1997 and further that they illegally

constructed the toilet without consent of the

respondent/plaintiff. The suit was registered as Civil Suit No.

21-A/1997 in the Court of Civil Judge Class II Seoni Malwa.

3. The plaintiff claimed himself to be the landlord of the

house No. 4 situated at Ward No. 8, Seoni Malwa in which

father of the appellant namely Mangilal used to reside as a

tenant for last more than 20 years on a rent of Rs. 50/- per

month. Mangilal died in 1994 and after his death, appellant

and respondent Nos. 2 and 3 became the tenant of the said

house in question.

4. Written statement was filed by the appellant/defendant

disputing the title of the plaintiff over the house in question

and claiming that earlier one Smt. Leela Bai also claimed

ownership over the said house and gave notice to the father of

the appellant on 02.06.1972, but, his father refused to pay

rent to Smt. Leela Bai and thereafter she did not file any suit

and not initiated any further proceeding against the father of

the appellant or against other defendants and as such they

claimed that they acquired the title in respect of the suit

house by virtue of adverse possession and, therefore, the suit

filed by the plaintiff was barred by limitation.

5. The trial court, after recording evidence of the parties,

decreed the suit on 24.12.2003 on the ground of arrears of

rent of Rs. 1500/-.

6. The appeal was preferred by the appellant against the

said judgment and decree and also deposited the arrears of

rent. During the pendency of appeal, the appellant filed

applications under Order 41 Rule 27 of CPC for taking

additional documents on record, under Order 41 Rule 25 of

CPC read with Section 151 of CPC for framing of additional

issues, under Order 1 Rule 10 of CPC and under Order 41

Rule 20 of CPC saying that Smt. Saroj Bai is the daughter of

original tenant Mangilal and, therefore, she is also a

necessary party. The appellant also filed an application under

Section 35 of the Stamp Act on the ground that the document

i.e. sale deed, on the basis of which the respondent No. 1 is

claiming ownership over the suits house, was not a registered

document, therefore, as per the provisions of the Act the said

document be impounded.

7. The appellate court, while deciding the appeal,

considered all the IAs and decided the same. The appellate

court finally allowed the appeal in part setting aside the

judgment and decree passed on the ground of Section 12(1)(a)

of the Act of 1961, but decreed the suit granting decree of

Section 12(1)(c) of the Act of 1961 directing ejectment of the

appellant/defendant from the suit house and denied his title

as he failed to prove that the plaintiff was not the owner and

landlord of the suit house.

8. The second appeal has been preferred by the appellant

and the same has been admitted by the High Court on the

following substantial question of law:

"Whether without establishing the relationship of landlord and tenant, the decree under Section 12(1)(c) of the M.P.

Accommodation Control Act, 1961 can be granted?"

Learned counsel for the appellant argued the appeal,

raised several grounds and also submitted that the

substantial question of law was not properly framed.

In view of the submission made by the learned counsel

for the parties and the material available on record, the

substantial question of law, which is required to be framed

and answered here would be:

"Whether the judgment and decree passed on the ground of Section 12(1)(c) of the Act of 1061 is perverse or the Appellant Court has not properly appreciated the stand taken by the defendant disputing the landlordship and ownership over the suit premises of the plaintiff and as such finding given by the Appellate Court is perverse?"

9. Learned counsel for the appellant has submitted that

the Appellate Court has committed illegality while rejecting

the application filed under Order 41 Rule 27 of CPC and not

taking document on record, which was a document of title,

only on the ground that the said document was not a

registered document, therefore, it was not admissible in

evidence, however, as per the learned counsel for the

appellant the said document can be used for collateral

purpose and can be taken as an evidence just to prove that

the defendants were in possession of the suit house not as

tenants but as owners of the suit house. Learned counsel for

the appellant, in support of his contention, has placed

reliance upon a decision of Supreme Court reported in

(2010) 5 SCC 401-S Kaladevi vs. V.R. Somasundaram and

others in which the Supreme Court has observed that

unregistered sale deed tendered not as evidence of completed

sale but as proof of oral agreement of sale, can be received in

evidence by making endorsement that it was received only as

evidence of oral agreement of sale. He has submitted that if

the said document had been taken on record or taken as

evidence, the situation would have been different.

10. Learned counsel for the appellant has further submitted

that both the courts below have relied upon a document

Ex.P/1 i.e. document of Municipal Council, which was only a

sheet of assessment of property tax in which it is shown that

the plaintiff was the owner and Mangilal, father of the present

appellant/defendant, was the tenant in the suit premises. He

has submitted that the said document is not the document of

title and from the said document itself it is clear that there

were several corrections made from time to time showing

other persons to be the owners of the suit house and as such

relying upon the said document treating plaintiff to be the

landlord is not proper. He has further urged that application

under Order 1 Rule 10 of CPC was filed by one Saroj Bai

claiming herself to be a necessary party as the suit property

was her parental property and she was also a share holder in

the same and, therefore, without making her to be a party,

the suit was not maintainable. To substantiate his

contention, learned counsel for the appellant has placed

reliance in the case of (2006) 2 SCC 724-Mohinder Prasad

Jain vs. Manohar Lal Jain in which it has been held that

without prior consent of other co-owners suit for eviction

against tenant by one of the co-owner is not maintainable. He

has submitted that it clearly indicates that the suit was not

maintainable only on behalf of one co-owner because the

other co-owners had not given their prior consent. However,

the application submitted by Saroj Bai under Order 1 Rule 10

of CPC was not filed claiming herself to be a co-owner of the

property, yet another application was filed by the

appellant/defendant under Order 1 Rule 10 of CPC saying

that earlier one Leelabai issued notice claiming herself to be

the landlord of the suit property and the said notice was

replied by the original tenant Mangilal and also denied the

ownership of Leela Bai. According to the appellant/defendant,

it can be gathered that there was dispute between co-owners

in respect of the title over the suit property and if only one co-

owner files a suit for eviction against the tenant, the said suit

is not maintainable.

11. Learned counsel for the appellant has submitted that it

is not a case in which defendants have denied the title of the

plaintiff without any foundation, but, they have some basis

and documents showing that the suit house was purchased

by Mangilal by virtue of an agreement to sale, although the

said sale deed could not be executed, but, later on they used

to reside in the suit premises as owners and, therefore, the

plaintiff could not produce any rent receipt or any document

showing that at any point of time rent was paid by the

defendant to the plaintiff. Learned counsel has submitted that

both the courts below have failed to appreciate the fact that in

absence of any document of title in favour of plaintiff and not

proving his case to be the owner of the property, when his

ownership has been seriously disputed, the decree on the

ground of Section 12(1)(c) of the Act of 1961 cannot be

passed.

12. Per contra, learned counsel for the respondent/plaintiff

has opposed the submission made by the learned counsel for

the appellant and submitted that the present case is a case of

concurrent finding of fact as both the courts below on the

basis of evidence adduced by the parties found the plaintiff to

be the landlord and owner of the suit property and rightly

passed the decree on the ground of Section 12(1)(c) and,

therefore, as per the settled position of law, in a second

appeal, the High Court exercising jurisdiction under Section

100 of CPC cannot interfere in the concurrent finding of fact,

unless it is proved to be perverse. He has submitted that

finding of both the courts below holding plaintiff to be the

landlord and owner of the property even by erroneous finding

cannot be disturbed by the High Court in second appeal and,

therefore, the appeal does not involve any substantial

question of law and the question of law on the basis of which

the appeal is being heard and decided does not give this

Court any right to interfere in the concurrent finding of fact

given by both the courts below. Learned counsel has relied

upon the statement of witnesses recorded during the course

of trial and submitted that the said witnesses have very

categorically stated before the trial court that they have seen

the defendant paying rent to the plaintiff. He has submitted

that the evidence of the witnesses of the plaintiff has not been

properly rebutted by the defendant and, therefore, the finding

holding the plaintiff to be the landlord cannot be said to be a

perverse finding and, therefore, the same cannot be interfered

with.

13. I have heard the rival contention of the learned counsel

for both the parties and perused the record. So far as the

submission made by the learned counsel for the appellant

that the document, which was said to be a document of title

made in favour of the defendant and the observation made by

the appellate court while rejecting the application filed under

Order 41 Rule 27 of CPC is concerned, the said document is

an agreement dated 13.10.1968 written by one Kamlabai in

favour of the father of the appellant/defendant Mangilal, but,

this document is not a sale deed and is not a registered

document, therefore, the court has not taken note of the said

document and rejected the said application. If the statement

of defendant Kailash-DW-1 is seen, it clearly reveals that he

did not disclosed about the document executed somewhere in

the year 1968 even to his counsel before filing the written

statement and he has also stated that during the course of

recording his statement, first time he disclosed the said fact

to the court. His statement was recorded on 23.06.2003. It

clearly indicates that even after knowing about the fact that

his father purchased the suit house in the year 1968 from

Kamlabai he did not disclose the said fact while contesting

the suit of eviction and also did not disclose the said fact even

to his counsel, which makes the said document, which is an

Ikrarnama of 1968, suspicious. In his statement, this witness

has also stated that he did not pay the tax of the suit house,

which makes it clear that he was not residing in the suit

house as an owner of the suit house otherwise he might be

paying the tax of the suit house or might be knowing who was

paying the tax on his behalf. On the contrary, if the statement

of plaintiff's witnesses namely Umesh Narayan-PW-7 is seen,

he has very categorically stated in the court that father of the

defendant used to pay rent of the suit house and he had seen

Mangilal paying rent to the plaintiff and the said witness has

stated that after 1980 he left the said area and started living

in some other area.

14. Learned counsel for the respondent has submitted that

the statement of the plaintiff's witness has not been rebutted

even in cross-examination and even no question has been

asked in the cross-examination that the said witness was

saying lie and or not seen Mangilal paying rent to plaintiff. He

has further submitted that PW-5-Shantibai Yadav has also

stated in her statement that Mangilal used to pay rent to the

mother of the plaintiff and was residing in the suit house as a

tenant. She has also stated that she was informed by the

family members of the plaintiff that Mangilal was their tenant.

15. Considering the statements of the witnesses and the fact

that the documents on which both the courts below have

placed reliance, the defendant has not placed any material or

even has not cared to call the officers of the Municipal

Council to substantiate as to on what basis the entries were

made in the property assessment register. Thus, it is clear

that the finding of both the courts below in respect of the

ownership of the plaintiff is a finding of fact. There is

sufficient material available on record orally or documentary

to draw a conclusion that the plaintiff was the landlord and

owner of the suit house and as such the said finding is not

perverse, although learned counsel for the respondent has

rightly submitted that the appellant at the most can say that

the finding is erroneous, but, that is not enough for appellant

the to convince the Court for setting aside the said finding

exercising jurisdiction under Section 100 of CPC. So far as

application submitted under Order 1 Rule 10 CPC is

concerned, none of the co-owners or family members of

plaintiff side has moved any such application indicating that

no prior consent was taken from them for filing a suit against

the defendant, but, one application under Order 1 Rule 10 of

CPC was filed by the daughter of Mangilal, sister of present

defendant, and another application was by the defendant

saying that since Leelabai had earlier issued notice to

Mangilal and, therefore, it indicates that there were some

dispute with regard to ownership over the suit house among

co-owners, however, this is not enough to infer that there was

some dispute between the co-owners and no prior consent

from the co-owners was taken by the plaintiff before filing the

suit. Unless any co-owner comes forward and objects about

filing the suit on the ground that the same has been filed

without their prior consent, this Court, at the stage of second

appeal, cannot say that the suit is not maintainable on such

ground. Accordingly, the plea raised by the learned counsel

for the appellant is without any substance and, therefore, the

same is rejected.

16. In view of the discussion made hereinabove, this Court

is of the opinion that in view of the settled principle of law

since it is a concurrent finding of fact that the plaintiff is the

owner and landlord of the suit premises and the defendant

without any foundation and bona-fide reason disputed his

landlordship and ownership, therefore, the decree under

Section 12(1)(c) of the Act of 1961 has rightly been passed by

the courts below. The substantial question of law on which

this appeal was admitted is accordingly answered.

17. Even otherwise Considering the above, since the

findings given by both the Courts below are concurrent

findings of facts and during the course of arguments, the

learned counsel for the appellant has failed to establish

any perversity in the judgment and decree passed by both

the Courts below and considering the law laid down by

the Supreme Court consistently holding that the

jurisdiction of this Court to interfere with the finding of

fact under Section 100 of the Code of Civil Procedure is

very limited until the finding is either perverse or based

on no evidence, this Court cannot interfere with the

concurrent finding of fact. [See: Prakash Kumar v. State

of Gujrat-(2004) 5 SCC 140, Thiagarajan v. Sri

Venugopalaswamy B. Koil-(2004) 5 SCC 762, Harjeet

Singh and another vs. Amrik Singh and another-(2005)

12 SCC 270, Sugani (mst.) v. Rameshwar Das-(2006) 11

SCC 587, Gurdev Kaur vs. Kaki (2007) 1 SCC 546,

Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC

264, Gurvachan Kaur and others vs. Salikram (Dead)

Through Lrs.-(2010) 15 SCC 530, Damodar Lal vs. Sohan

Devi and others-(2016) 3 SCC 78 and State of Madhya

Pradesh vs. Sabal Singh (Dead) by legal representatives

and others-(2019) 10 SCC 595 and the judgment passed by

the Gwalior Bench of this Court on 26.03.2019 in Second

Appeal No. 1899/2017-Dr. Manikant Shah vs.Smt.Pushpa

Devi].

18. In view of the above, the appeal is without any

substance and is hereby dismissed.

(Sanjay Dwivedi) Judge

Raghvendra

Digitally signed by

RAGHVE RAGHVENDRA SHARAN SHUKLA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH,

NDRA ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002,

SHARAN st=Madhya Pradesh, 2.5.4.20=0b4ca33e82678112 c8b8779ae1f77dd53c66b97e 56d85ed6193d6ff614e6a268,

SHUKLA cn=RAGHVENDRA SHARAN SHUKLA Date: 2022.01.13 10:44:49 +05'30'