Smt. Madhu Verma vs Nilesh Agrawal
2022 Latest Caselaw 8828 MP

                                                      1
                                   IN THE HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                      BEFORE
                                    HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                               ON THE 4th OF JULY, 2022

                                          SECOND APPEAL No. 559 of 2021

                              Between:-
                              SMT. MADHU VERMA W/O SHRI VIJAY VERMA,
                              AGED   ABOUT   54   YEARS, OCCUPATION:
                              BUSINESS R/O 66-A, GAYATRI NAGAR,
                              ADHARTAL, JABALPUR, SHOP NO.6, GANESH
                              MARKET, ADHARTAL, JABALPUR M.P DISTT.
                              (MADHYA PRADESH)

                                                                                .....APPELLANT
                              (BY SHRI R.P. KHARE, ADVOCATE)

                              AND

                      1.      NILESH AGRAWAL S/O DR. SUBHAS AGRAWAL,
                              AGED ABOUT 34 YEARS, R/O 1396, ADARTAL,
                              OPPOSITE ADHARTAL P.S.ADHARTAL JABALPR
                              M.P DISTT. (MADHYA PRADESH)

                      2.      NEERAJ AGRAWAL S/O DR.       SUBHASH
                              AGRAWAL, AGED ABOUT 32 YEARS, R/O 1396,
                              ADHARTAL, OPPOSITE ADHARTAL POLICE
                              STATION ADHARTAL JABALPUR (MADHYA
                              PRADESH)

                      3.      RAJEEV SHARMA S/O SHRI K.G.SHARMA, AGED
                              ABOUT 54 YEARS, R/O NEAR 112, J.P. HEALTH
                              CLUB, ADHARTAL JABALPUR AND SHOP NO. 4,
                              GANESH MARKET ADHARTAL JABALPUR
                              (MADHYA PRADESH)

                                                                             .....RESPONDENTS

(BY MS. C.V. RAO, ADVOCATE FOR RESPONDENTS 1& 2)

Th is appeal coming on for hearing this day, t h e court passed the following:

Signature
 SAN      Not                                          ORDER
Verified

Digitally signed by
                            Heard on question of admission.
RASHMI RONALD
VICTOR
Date: 2022.07.05
18:01:47 IST

2. This second appeal has been filed by sub-tenant/defendant No.2 challenging the judgment and decree dated 01/03/2021 passed by the District Judge, Jabalpur in RCA No.14/2017, whereby confirming the judgment and decree dated 04/01/2017 passed by learned 13th Civil Judge, Class-II, Jabalpur in Civil Suit no.93-A/2015, whereby suit for eviction filed by respondents 1 & 2 has been decreed on the ground under Section 12(1)(b) of the M.P. Accommodation Control Act, 1961 (in short 'the Act').

3. In short the facts of the case are that the respondents 1 & 2/plaintiffs instituted a suit for eviction on the grounds available under Section 12(1) (a) (b)

(f) (g) & (h) of the Act, claiming themselves to be owner and landlord of the

suit accommodation. With regard to the ground of sub-tenancy, it was alleged that the defendant No.1/Rajeev Sharma (Verma) was inducted as tenant in the Shop No.6 but after collapse of the Shop of the possession of appellant/defendant No.2/Smt. Madhu Verma who was in possession of Shop No.23, the defendant No.1/Rajeev Sharma (Verma) who was tenant in the Shop No.6 had let out it to the defendant No.2/Smt. Madhu Verma without prior permission of the respondents/plaintiffs. Accordingly, the plaintiffs prayed for decree in their favour.

4. Despite service of notice, the defendant No.1/Rajeev Sharma (Verma) did not appear and was proceeded ex-parte.

5. Upon notice, the defendant No.2/Smt. Madhua Verma appeared and filed written statement, denying the plaint allegation and claimed herself direct tenant of plaintiffs/respondents and contended that she is not sub-tenant of defendant No.1/Rajeev Sharma (Verma). She contended that, she was tenant in Shop No.23 and after its collapse, the plaintiffs let out the Shop No.6 to her. Accordingly, she prayed for dismissal of the suit.

6. Learned trial Court after framing the issues, recorded evidence of the parties and after going through the entire evidence available on record held that the defendant No.1/Rajeev Sharma (Verma) was tenant in the disputed Shop No.6 which was sub-let to the defendant No.2/Smt. Madhu Verma and decreed the suit accordingly on the ground under Section 12(1)(b) of the Act vide its judgment and decree dated 04/01/2017. Upon appeal before District Judge, the same was affirmed vide its judgment and decree dated 01/03/2021. As such there is concurrent findings with regard to sub-tenancy by learned two Courts below.

7. Learned counsel for the appellant/defendant No.2-Smt. Madhu Verma submits that the learned Courts below have gravely erred in decreeing the suit because the plaintiffs have failed to establish that defendant No.1/Rajeev Sharma (Verma) was tenant in the Shop No.6 and negative burden to prove this fact has been placed on the appellant/defendant No.2/sub-tenant. He submits that as the plaintiffs have failed to prove the original tenancy with defendant No.1/Rajeev Sharma (Verma), therefore, there was no question of sub-tenancy made by defendant No.1/Rajeev Sharma (Verma) in favour of defendant No.2/Madhu Verma. Accordingly, he prays for admission of the appeal.

8. Learned counsel for respondents 1 & 2/landlord who is appearing on caveat submits that there is no illegality in the judgment and decree passed by

the learned Courts below decreeing the suit on the ground of sub-tenancy under Section 12(1)(b) of the Act.

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

10. Bare perusal of the judgment and decree passed by the learned Courts below, it is clear that originally the appellant/Smt.Madhu Verma was

tenant in the Shop No.23 and after it collapse, she came in possession of Shop No.6, which originally was in possession of defendant No.1/Rajeev Sharma (Verma) and the defendant No.2 has totally failed in establishing the agreement of tenancy with regard to Shop No.6 with the landlord/respondents 1& 2.

11. Learned both the Courts below have passed the judgment in detail after considering oral and documentary evidence led by the parties. It is well settled that re-appreciation of oral evidence is not permissible in the second appeal. In the case of M. Meeramytheen and others Vs. K. Parameswaran, (2010) 15 SCC 359 and V. Sumatiben Manganlal Manani Vs. Uttamchand Kashiprasad Shah, (2011) 7 SCC 328, the Hon'ble Apex Court has held that the question of sub-tenacy is a finding of fact and no interference is permissible in the second appeal.

12. In view of this, the learned Courts below have not committed any mistake in decreeing the suit. Accordingly, the present second appeal deserves to be and is hereby dismissed in limine under Order 41 Rule 11 of CPC.

13. At this stage, learned counsel for the appellant prays for granting one year time to vacate the Shop No.6 in question.

14. Learned counsel for respondents 1 & 2 has no objection in granting one year time to vacate the disputed shop. Accordingly, one year time is granted to the appellant/defendant No.2 to vacate the Shop No.6 in question on the following conditions:-

(i) The appellant/defendant No.2 shall vacate the suit shop on or before 30.06.2023.

(ii) The appellant/defendant No.2 shall regularly pay rent to the respondents/plaintiffs and shall also clear all the dues, if any, including the costs of the litigation, if any, imposed by learned Courts below.

(iii) The appellant/defendant No.2 shall not part with the suit property to anybody and shall not change nature of the suit shop.

(iv) The appellant/defendant No.2 shall furnish an undertaking with regard to the aforesaid conditions within a period of 3 weeks from today before learned Court below/Executing Court.

(v) If the appellant/defendant No.2 fails to comply with any of the aforesaid conditions, the respondents/plaintiffs shall be free to execute the decree forthwith.

(vi) If after filing of the undertaking, the appellant/defendant No.2 does not vacate the premises on or before 30.06.2023 and creates any obstruction, she shall be liable for contempt of order of this Court.

15. With the aforesaid observations, this Second Appeal is dismissed and disposed off. No orders as to costs.

(DWARKA DHISH BANSAL) JUDGE RS