Madhya Pradesh High Court
Smt.Santoshi Sharma vs Sitaram Rusia (Dead) Through ... on 8 July, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 8th OF JULY, 2022
SECOND APPEAL No. 429 of 2022
Between:-
1. SMT. SANTOSHI SHARMA W/O LATE JAGDISH
SHARMA, AGED ABOUT 65 YEARS,
OCCUPATION: HOUSEWIFE INFRONT OF
P.O.NAUGAON, TEH.NAUGAON (MADHYA
PRADESH)
2. VIMAL KUMAR SHARMA S/O LATE JAGDISH
SHARMA, AGED ABOUT 47 YEARS,
OCCUPATION: BUSINESS R/O IN FRONT OF
POST OFFICE NAUGAON, TEHSIL- NAUGAON,
DISTRICT- CHHATARPUR (MADHYA PRADESH)
3. KAMAL KUMAR SHARMA S/O LATE JAGDISH
SHARMA , AGED ABOUT 42 YEARS,
OCCUPATION: BUSINESS R/O IN FRONT OF
POST OFFICE NAUGAON, TEHSIL- NAUGAON,
DISTRICT- CHHATARPUR (MADHYA PRADESH)
4. KU. SONU D/O LATE JAGDISH SHARMA , AGED
ABOUT 35 YEARS, OCCUPATION: NILL R/O IN
FRONT OF POST OFFICE NAUGAON, TEHSIL-
NAUGAON, DISTRICT- CHHATARPUR (MADHYA
PRADESH)
5. SMT. BABITA D/O LATE JAGDISH SHARMA ,
AGED ABOUT 45 YEARS, OCCUPATION: NILL
R/O IN FRONT OF POST OFFICE NAUGAON,
TEHSIL- NAUGAON, DISTRICT- CHHATARPUR
(MADHYA PRADESH)
6. KAVITA SHARMA D/O LATE JAGDISH SHARMA ,
AGED ABOUT 40 YEARS, OCCUPATION: NILL
R/O IN FRONT OF POST OFFICE NAUGAON,
TEHSIL- NAUGAON, DISTRICT- CHHATARPUR
(MADHYA PRADESH)
.....APPELLANTS
Signature Not
SAN
Verified (BY SHRI GAURAV SHARMA-ADVOCATE)
Digitally signed by
KUMARI PALLAVI AND
SINHA
Date: 2022.07.12
17:10:17 IST
2
1. SITARAM RUSIA (DEAD) THROUGH L.RS.
1(a) KAUSHAL KISHOR RUSIA S/O RAGHUVEER
DAYAL RUSIA, AGED ABOUT 77 YEARS,
OCCUPATION: NIL VILLAGE NAUGAON,
TEH.NAUGAON (MADHYA PRADESH)
MAHESH KUMAR RUSIA S/O LATE SITARAM
1(b) RUSIA, AGED ABOUT 68 YEARS, OCCUPATION:
NILL R/O VILLAGE NAUGAON, TEHSIL-
NAUGAON, DISTRICT- CHHATARPUR, M.P.
(MADHYA PRADESH)
1(c) SURESH KUMAR RUSIA S/O LATE SITARAM
RUSIA, AGED ABOUT 65 YEARS, OCCUPATION:
NILL R/O VILLAGE NAUGAON, TEHSIL-
NAUGAON, DISTRICT- CHHATARPUR, M.P.
(MADHYA PRADESH)
1(d) RAJEEV RUSIA S/O LATE SITARAM RUSIA,
AGED ABOUT 43 YEARS, OCCUPATION: NILL
R/O VILLAGE NAUGAON, TEHSIL- NAUGAON,
DISTRICT- CHHATARPUR, M.P. (MADHYA
PRADESH)
1(e) SMT. GEETA RUSIA D/O LATE SITARAM RUSIA
OCCUPATION: NILL R/O VILLAGE NAUGAON,
TEHSIL- NAUGAON, DISTRICT- CHHATARPUR,
M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANOOP KUMAR SAXENA-ADVOCATE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This second appeal has been filed by the defendants/appellants/tenants
challenging the judgment & decree dated 29.11.2021 passed by learned 1st
District Judge, Naugaon, District Chhatarpur in Civil Appeal No. 10/2012
confirming the judgment & decree dated 08.02.2012 passed by learned 1st Civil
Judge, Class-1, Naugaon District-Chhatarpur in Civil Suit No. 29-A/10 whereby
suit for eviction filed by the respondents/plaintiffs has been decreed on the
ground under S. 12(1) (n) of the M.P. Accommodation Control Act, 1961
(hereinafter called ‘the Act’).
2. In short, facts of the case are that the plaintiffs’ ancestor i.e.
original plaintiff-Sitaram Rusia had instituted a suit for eviction and arrears of
rent with regard to plot in question with the allegations that the original
defendant-Jagdish (dead) (now represented by present appellants) is his tenant
of the plot on rent of Rs. 50/- per month, which has not been paid by him
despite making demand by issuing the registered notice. It is alleged that the
plot in question is bonafidely required for the construction of house for the
purpose of starting business by his family members.
3. It is alleged that the plaintiff is entitled for arrears of rent of 33
months amounting Rs.1,650/-. The plaintiff also alleged that no agreement has
been executed by plaintiff in favour of the defendant-Jagdish. On the aforesaid
interalia allegations, the suit was instituted.
4. The defendant-Jagdish appeared and filed written statement denying
the plaint allegations and contended that he took the entire plot on rent for Rs.
100/- per month and half of the plot was taken back by plaintiff-Sitaram in the
year 2002 with the agreement to sell the remaining half of the plot to defendant
for consideration of Rs. 1,30,000/- and received an amount of Rs. 70,000/- in
advance on 20.08.2002. The plaintiff has not clarified, as to who is in need of
the accommodation for starting business. It is also contended that the defendant
is in possession as owner and the plaintiff has no right to seek eviction. On
interalia contentions, the suit was prayed to be dismissed.
5. After framing issues learned trial Court recorded evidence led by the
parties and vide judgment & decree dated 08.02.2012 found that the plaintiff is
tenant over the plot in question on rent of Rs. 50/- per month w.e.f. from the
year 2003 and the plaintiff is in need of the plot for construction of the house
for starting business by his family members and held that the suit for eviction on
the ground under S. 12 (1)(a) of the Act is not maintainable being premature and
decreed the suit on the ground under S. 12(1)(n) of the Act. Upon appeal filed
by defendants, first appellate Court vide its judgment and decree dated
29.11.2021 confirmed the decree of eviction passed by trial Court.
6. Learned counsel for the appellant submits that, as the suit filed by
plaintiff was premature being filed before expiry of period of two months,
therefore, learned Courts below have erred in decreeing the suit. He further
submits that the plaintiff could not get eviction of the plot in question for
construction of house specially for starting business and he submits that the
word ‘house’ mentioned in the ground under S. 12(1)(n) of the Act
should be construed as the ‘house’ only for the purpose of residence and
not for business. Accordingly, he prays for admission of the second appeal.
7. Learned counsel for the respondents submits that merely because of
the fact that the suit on the ground under S. 12 (1)(a) of the Act was premature,
cannot be a ground to dismiss the entire suit, which was also on other ground.
He submits that the learned Courts have rightly granted decree of eviction on
the ground under S. 12(1)(n) of the Act and in support of his submissions he
placed reliance on the judgment of this Court in the case of Jagdish Prasad Vs.
Gurubux Singh reported in AIR 1992 MP 128 and prayed for dismissal of the
appeal.
8. Heard learned counsel for the parties and perused the record.
9. Apparently, the plaintiff instituted the suit for eviction on the ground
under S. 12-(1)(a) & (n) of the Act but it was filed even prior to expiry of two
months’ period given in the notice, hence the learned Courts below have
although found the defendants to be in arrears of rent but have not granted
decree of eviction on the ground under S. 12(1)(a) of the Act. As the suit is also
on the ground under S. 12(1) (n) of the Act, therefore, it cannot be said that the
entire suit was not maintainable being premature. Accordingly, there is no force
in the submission of the learned counsel for the appellant that the entire suit is
premature. However, the learned Courts rightly refused to pass decree of
eviction under S. 12(1)(a) of the Act.
10. As regards ground of eviction under S. 12(1)(n) is concerned, this
Court in the case of Jagdish Prasad (supra) has considered the meaning of
“house†in detail and held as under:-
“7.The question still surviving for consideration would be
whether tin-shed for making furniture proposed to be
constructed by the plaintiff-landlord can be said to be house
within the meaning of clause (n) of section 12(1) of the Act.
According to Chambers Twentieth Century Dictionary 1976
Edition, 1980 reprint ‘house’ means a building for
dwelling in, a building in general, a dwelling-place; an inn, a
public house. According to Aiyar's Judicial Dictionary 9th
Edition word ‘House’ inter alia would in its ordinary
sense, include any building, irrespective of its user. Further it
may be stated generally that the word ‘house’ is a
structure of a permanent character. Again the weight of
judicial opinion is conclusively in favour of the view that the
word ‘house’ extends to a building which is used for
business and should not be restricted to a mere dwelling house.
The dictionary refers to meaning in Corpus Juris Secundum
(Vol. 41, page 364) wherein it is said that in a legal sense, the
word ‘house’ is more comprehensive, but it is not limited
to a structure designed for human habitation, and may mean a
building or shed intended or used as a habitation or shelter for
animals of any kind (Emphasis supplied). The observations in
Prabhudayal v. Savitri Devi (supra) in para 4 of the judgment:
“The reason appears to be to encourage new constructions
for increasing residential accommodation.â€
is in the nature of obiter and in view of the dictionary meaning
as aforesaid the meaning of the word ‘house’ cannot be
read in restrictive sense so as to mean a building for dwelling
in. It would also cover tin-shed proposed to be constructed by
the plaintiff-appellant provided it is a permanent structure.
11. In view of the aforesaid pronouncement of this Court, it cannot be
said that the learned Courts below have committed any illegality in passing of
the decree of eviction under S. 12(1)(n) of the Act. As such, the appeal having
no substantial question of law deserves to be and is hereby dismissed.
12. At this stage, learned counsel for the appellants/defendants prays
for time to vacate the suit plot. In the interest of justice and looking to the
period of tenancy, one year time for vacating the suit plot is granted on the
following conditions:-
(i) The appellants/defendants shall vacate the suit plot on or before
30.06.2023.
(ii) The appellants/defendants 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 appellants/defendants shall not part with the suit property to
anybody and shall not change nature of the suit plot.
(iv) The appellants/defendants 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 defendants/appellants fail 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 defendants/appellants do not
vacate the plot on or before 30.06.2023 and create any obstruction, they shall
be liable for contempt of order of this Court.
13. With the aforesaid observations, this second appeal is dismissed
and disposed off. No order as to costs.
(DWARKA DHISH BANSAL)
JUDGE
Pallavi
