Madhya Pradesh High Court
Sushila Devi Gupta (Died) Lrs ... vs Prakash Chandra on 3 April, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 3 rd OF APRIL, 2023
SECOND APPEAL No. 61 of 2023
BETWEEN:-
1. SUSHILA DEVI GUPTA (DIED) THROUGH LRS.:
GOVIND PRASAD GUPTA S/O LATE SHRI ANANT
1-A LAL GUPTA, AGED ABOUT 55 YEARS,
1-B RAJESH KUMAR GUPTA S/O LATE SHRI ANANT
LAL GUPTA, AGED ABOUT 45 YEARS,
1-C PRASHANT GUPTA S/O LATE SHRI ANANT LAL
GUPTA, AGED ABOUT 40 YEARS,
1-D MEENA GUPTA D/O LATE SHRI ANANT LAL
GUPTA, AGED ABOUT 45 YEARS,
ALL R/O BILAIYA TALAIYA, GURUNANAK WARD,
KATNI, DISTRICT KATNI (MADHYA PRADESH)
2. KAILASH CHANDRA GUPTA S/O LATE SHRI
ANANT LAL GUPTA (DIED) THROUGH LRS.:
SMT. KIRAN, WD/O LATE SHRI KAILASH
2.A CHANDRA GUPTA, AGED ABOUT 65 YEARS,
2.B SHARAD S/O LATE SHRI KAILASH CHANDRA
GUPTA, AGED ABOUT 40 YEARS,
2.C SHEETAL S/O LATE SHRI KAILASH CHANDRA
GUPTA, AGED ABOUT 47 YEARS,
2.D RANI D/O LATE KAILASH CHANDRA GUPTA,
AGED ABOUT 45 YEARS,
2.E RAKHI D/O LATE SHRI KAILASH CHANDRA
GUPTA, AGED ABOUT 38 YEARS,
2.F SHILPI D/O LATE SHRI KAILASH CHANDRA
GUPTA, AGED ABOUT 35 YEARS,
ALL R/O BEHIND MORNING STAR PUBLIC
SCHOOL, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 4/5/2023
3:12:20 PM
2
3. SURESH CHANDRA S/O SHRI PHOOLCHANDRA
CHIRROLIYA, AGED ABOUT 72 YEARS, R/O
JHULELAL MANDIR GALI, GURUNANAK WARD,
KATNI, TEHSIL AND DISTRICT KATNI (MADHYA
PRADESH)
4. RAMESH CHANDRA S/O SHRI PHOOLCHADRA
CHIROOLIYA, AGED ABOUT 71 YEARS, R/O
SHANTI NAGAR COLONY, BEHIND KHETRIYA BUS
STAND DAMOHNAKA, DISTRICT JABALPUR
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI A.K. JAIN, ADVOCATE)
AND
PRAKASH CHANDRA S/O SHRI KESHRI PRASAD
BILAIYA, AGED ABOUT 70 YEARS, R/O GURUNANAK
WARD, BILAIYYA TALAIYA, INSIDE RAM JANKI
MANDIR AREA HOUSES KATNI TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI NILESH KOTECHA, ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the
appellants/defendants/tenants challenging the judgment and decree dated
18.11.2022 passed by 4th District Judge, Katni in Civil Appeal No.121/2019,
affirming the judgment and decree dated 31.10.2019 passed by 5th Civil Judge
Class-I, Katni in Civil Suit No.39-A/2014, whereby suit for eviction filed on the
grounds available under Section 12(1)(c)&(h) of the Madhya Pradesh
Accommodation Control Act, 1961 (in short "the Act"), has been decreed only
on the ground under Section 12(1)(c) of the Act.
2. Learned counsel appearing for the appellants/tenants submits that the
learned Courts below have erred in decreeing the suit on the ground of denial of
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 4/5/2023
3:12:20 PM
title under Section 12(1)(c) of the Act, whereas the appellants are not tenant of
the plaintiff and by referring para 12 of the written statement he submits that suit
accommodation was taken on rent from its owner and landlord Thakur Shri
Ram Janki Public and Charitable Trust, Gurunanak Ward, Katni. In support of
this plea, the counsel for appellants have relied upon Gazette notification
(Ex.D/1) and Hibanama (Ex.D/2) and submits that the original owner of the
property Babulal Bilaiyya applied for registration of Public Trust and had gifted
the property to the Trust, therefore, plaintiff is not entitled for the decree,
however, there is no document of registration of Public Trust available on
record. He further submits that the plaintiff in his evidence has not uttered even
a single word about denial of title by the defendants. In support of his
submissions, counsel for the appellants placed reliance on the decision of
Supreme Court in the case of Devasahayam (Dead) by LRs. Vs. P.
Savithramma and others (2005) 7 SCC 653 (Para 27). Accordingly, he prays
for admission of the second appeal.
3. Learned counsel appearing for the respondents supports the impugned
judgment and decree and prays for dismissal of the appeal.
4. Heard learned counsel for the parties and perused the record.
5. The plaintiff in para 1 of the plaint claimed himself to be owner and
landlord of the premises in question and in para 2, it is alleged that suit
accommodation was taken by ascendant of the defendants namely
Phoolchandra. These two facts in relation to the tenancy have been clearly
denied in para 1&2 of the written statement.
6. Learned Courts below after taking into consideration the oral and
documentary evidence especially the rent receipts submitted by defendants
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Signed by: RASHMI
RONALD VICTOR
Signing time: 4/5/2023
3:12:20 PM
(Ex.D/3 to Ex.D/55), have come to the conclusion that the defendants are
tenants in the suit accommodation which was taken by their father and father-in-
law Late Phoolchandra and the rent was also paid by him/defendants to Babulal
Bilaiyya and Kesari Prasad Bilaiyya, the father of plaintiff- Prakash Chandra
Bilaiyya.
7. The Supreme Court in the case of Devasahayam (supra) has taken into
consideration its earlier decision in the case of Sheela and others Vs. Firm
Prahlad Rai Prem Prakash (2002) 3 SCC 375, in para 16 of which the
Supreme Court has held as under:-
"16. After the creation of the tenancy if the title of landlord is
transferred or devolves upon a third person the tenant is not
estopped from denying such title. However, if the tenant having been
apprised of the transfer, assignment or devolution of rights
acknowledges the title of transferee either expressly or by paying
rent to him, the rule of estoppel once again comes into operation for
it is unjust to allow the tenant to approbate and reprobate and so
long as the tenant enjoys everything which his lease purports to
grant, how does it concern him what the title of the lessor is? (See :
Tej Bhan Madan v. II ADJ [(1988) 3 SCC 137] .) A denial of title
which falls foul of the rule of estoppel contained in Section 116 of
the Evidence Act is considered in law a malicious act on the part of
the tenant as it is detrimental to the interest of the landlord and
does no good to the lessee himself. However, it has to be borne in
mind that since the consequences of applying the rule of
determination by forfeiture of tenancy as a result of denial of
landlord's title or disclaimer of tenancy by tenant are very serious,
the denial or disclaimer must be in clear and unequivocal terms.
(See : Majati Subbarao v. P.V.K. Krishna Rao [(1989) 4 SCC 732] ,
Kundan Mal v. Gurudutta [(1989) 1 SCC 552] and Raja Mohammad
Amir Ahmad Khan [1988 Supp SCC 710] .) We may quote with
advantage the law as stated by a Division Bench of the Calcutta
High Court in Hatimullah v. Mohd. Abju Choudhury [AIR 1928 Cal
312 : 32 CWN 391] . It was held:
The principle of forfeiture by disclaimer is that where the tenant
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Signed by: RASHMI
RONALD VICTOR
Signing time: 4/5/2023
3:12:20 PM
denies the landlord's title to recover rent from him bona fide on the
ground of seeking information of such title or having such title
established in a court of law in order to protect himself, he is not to
be charged with disclaiming the landlord's title. But where the
disclaimer is done not with this object but with an express
repudiation of the tenancy under the landlord, it would operate as
forfeiture."
8. From the aforesaid legal position settled by the Supreme Court it is
clear that after making payment of rent by the defendants/tenants to the
landlord, they are not free to challenge the title of their landlord. As such, in the
light of findings recorded by learned Courts below in respect of payment of
rent by defendants' ancestor to the plaintiff's ancestors, in my considered
opinion, learned Courts below have not committed any illegality in passing the
impugned judgment and decree and the second appeal having no substantial
question of law fails and is hereby dismissed.
9. At this stage learned counsel for the appellants/tenants submits that
appellants are ready to vacate the suit accommodation and they may be granted
reasonable time for the said purpose, which has not been opposed by counsel
appearing for the respondent.
10. In view of the prayer made on behalf of the appellants for granting
time to vacate the suit accommodation, in the interest of justice, one year's time
for vacating the suit accommodation is granted on the following conditions:-
(i) The appellants/tenants shall vacate the suit accommodation on or
before 31.03.2024.
(ii) The appellants/tenants shall regularly pay rent to the
respondent/landlord and shall also clear all the dues, if any, including the cost of
the litigation, if any, imposed by the learned Court below.
(iii) The appellants/tenants shall not part with the suit accommodation to
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 4/5/2023
3:12:20 PM
anybody and shall not change nature of the accommodation.
(iv) The appellants/tenants shall furnish an undertaking with regard to the
aforesaid conditions within a period of three weeks before the learned executing
Court.
(v) If the appellants/tenants fail to comply with any of the aforesaid
conditions, the respondent/landlord shall be free to execute the decree of
eviction forthwith.
(vi) If after filing of the undertaking, the appellants/tenants do not vacate
the suit accommodation on or before 31.03.2024 and create any obstruction,
they shall be liable to pay mesne profit of Rs.500/- (Rs. Five Hundred) per day,
so also contempt of order of this Court.
11. Declining interference and with the aforesaid observations, this
second appeal is dismissed and disposed off.
12. Interim application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
RS
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 4/5/2023
3:12:20 PM
