Mahendra Kumar Lanjewar vs Smt. Shakuntala Devi
2022 Latest Caselaw 8612 MP

                                                     1
                                IN THE HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                              ON THE 29th OF JUNE, 2022

                                         SECOND APPEAL No. 1114 of 2021

                             Between:-
                             MAHENDRA KUMAR LANJEWAR S/O DADULAL
                             LANJEWAR , AGED ABOUT 56 YEARS,
                             OCCUPATION: BUSINESS WARD NO.8 GANDHI
                             CHOWK OLD COLLAGE BUILDING WARASEONI
                             DISTT. BALAGHAT (MADHYA PRADESH)

                                                                          .....APPELLANT
                             (BY SHRI VIVEK BADERIYA, ADVOCATE )

                             AND

                        1.   SMT. SHAKUNTALA DEVI W/O DHANENDRA
                             KUMAR KASAL, AGED ABOUT 68 YEARS,
                             OCCUPATION: THR. POWER OF ATTORNEY
                             HOLDER DHANENDRA KUMAR KASAL S/O
                             NUPCHAND KASAL A/A 75 WARD NO.13 JAINJ
                             MOHALLA WARASEONI TAHSIL WARASEONI
                             DISTT. BALAGHAT (MADHYA PRADESH)

                        2.   SANDHYA KASAL D/O DHANENDRA KASAL,
                             AGED ABOUT 60 YEARS, OCCUPATION: NOT
                             MENTION     WARD   NO.  13,  MOHALLA
                             WARASEIONI,   TEH.  WARASEONI, DISTT.
                             BALAGHAT (MADHYA PRADESH)

                        3.   SANJAY KASAL S/O DHANENDRA KASAL , AGED
                             ABOUT 58 YEARS, OCCUPATION: NOT MENTION
                             WARD NO. 13, MOHALLA WARASEIONI, TEH.
                             WARASEONI, DISTT. BALAGHAT (MADHYA
                             PRADESH)

                        4.   SAPNA D/O DHANENDRA KASAL, AGED ABOUT
                             55 YEARS, OCCUPATION: NOT MENTION WARD
                             NO.   13,  MOHALLA WARASEIONI,     TEH.
                             WARASEONI, DISTT. BALAGHAT (MADHYA
                             PRADESH)
Signature
 SAN      Not
Verified
                        5.   SEEMA D/O DHANENDRA KASAL , AGED ABOUT
Digitally signed by S        52 YEARS, OCCUPATION: NOT MENTION WARD
HUSHMAT                      NO.   13,  MOHALLA WARASEIONI,     TEH.
HUSSAIN
Date: 2022.06.29
18:32:43 IST
                                     2
        WARASEONI,       DISTT.    BALAGHAT       (MADHYA
        PRADESH)

                                                                .....RESPONDENTS
        (BY MRS. AMRIT KAUR RUPRAH, ADVOCATE )

      This appeal coming on for admission this day, th e court passed the
following:
                                     ORDER

Heard.

This second appeal has been filed by the appellant/defendant against the judgment and decree dated 03.07.2021 passed by the Second District Judge, Waraseoni, District-Balaghat in Civil Appeal No.500228/2015 confirming the judgment and decree dated 14.08.2015 passed by the Second Civil Judge,

Class-I, Waraseoni, District-Balaghat in Civil Suit No.39-A/2013, whereby civil suit filed by the respondents/plaintiffs was decreed on the ground of sub- tenancy under Section 12(1)(b) of the Madhya Pradesh Accommodation Control Act, 1961 (for short "The Rent Act").

At the outset, learned counsel for the respondents submits that in compliance of the decree of eviction, respondents/plaintiffs have received possession of the shop in question in execution proceedings, which fact has not been disputed by the learned counsel for the appellant.

The facts of the case in short are that the suit for eviction was filed by the respondents/plaintiffs with the allegations that Kishorilal was original tenant in the suit shop and he sub-let the suit shop in question to the present appellant/defendant. It is further alleged that the shop in question is in dilapidated condition and that the defendant had not paid rent regularly and has been defaulter. With the aforesaid allegations, suit was filed for eviction.

The defendant/appellant filed written statement denying the relationship of

landlord and tenant and he alleged that he is not the sub-tenant in the said shop but has acquired title by the adverse possession being in possession for more than 12 years. With the aforesaid contentions the suit was prayed to be dismissed.

Learned trial Court after having considered the evidence available on record held that plaintiffs are the owner and landlord of the suit shop/premises in question and the premises in question was given on rent in the year 1987 to Kishorilal, who sub-let the shop to defendant/appellant Mahendra Kumar Lanjewar without prior permission of the plaintiffs\respondents. Learned trial Court has also recorded a finding that the premises in question is in a dilapidated condition and the defendant has not acquired title by adverse possession. At the same time, learned trial Court has also held that the plaintiffs/respondents are entitled for receiving Rs.1,000/- per month as mesne profit/compensation with effect from 15.04.2013. Upon appeal filed by the appellant/defendant, the Appellate Court has confirmed the judgment and decree passed by learned trial Court.

Learned counsel for the appellant/defendant submits that in the light of the order dated 21.06.2011 passed in the previous civil suit, the present suit was not maintainable because the plaintiffs/landlord did not pay the compensation and cost of the suit as per directions contained in the order dated 21.06.2011.

He further submits that the respondents/plaintiffs/landlord are not the owner of the shop in question but it belongs to the State Government and for want of impleadment of State Government, the suit is not maintainable. He further submits that he being in possession of the suit shop for more than 12 years has acquired title by adverse possession. He further submits that the aforesaid aspect has not been considered properly by the learned Courts below.

Accordingly, he prays for admission of the appeal.

Learned counsel for the respondents/plaintiffs submits that there are concurrent finding of Courts below with regard to creation of sub-tenancy by the original tenant Kishorilal in favour of the appellant/defendant/Mahendra Kumar and the same being finding of fact, there is no scope for interference in this second appeal.

Heard learned counsel for the parties and perused the record. Learned trial Court after having considered the material available on record held that the defendant/appellant is sub-tenant, who was inducted by original tenant Kishorilal and in paragraph nos.11 to 13, learned trial Court considered the oral and documentary evidence including the statement given by defendant/appellant Mahendra Kumar, who has not been able to establish the capacity in which he entered into the premises. It is well settled principle of law that the question of sub-tenancy is a question of fact and it does not raise any substantial question of law as has been held by Hon'ble the Apex Court 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.

In view of the aforesaid, no substantial question of law arises for determination in this second appeal and the learned Courts below have not committed any mistake in decreeing the suit, therefore, the present second appeal is dismissed, however, without any order as to costs.

Learned counsel for the respondents/plaintiffs/landlord submits that in view of the fact that they have already received the possession of the suit shop and there is no material on record to show that the landlord complied with the

order dated 21.06.2011 passed in previous suit, therefore, she submits that she will not press the execution for further dues before the Executing Court with regard to the money decree, if any, due against the appellant/defendant/sub- tenant.

With the aforesaid observations, the second appeal is dismissed and disposed off.

C.C. as per rules.

(DWARKA DHISH BANSAL) JUDGE sh