Vipin Shukla vs Roop Singh S/O Rajju Singh Ji ...
2023 Latest Caselaw 6852 MP

                                        -1-


     IN THE      HIGH COURT             OF MADHYA PRADESH
                              AT I N D O R E
                                   BEFORE
                HON'BLE SHRI JUSTICE VIVEK RUSIA

                      SECOND APPEAL No. 2772 of 2022

BETWEEN:-
VIPIN SHUKLA S/O SHRI DIJENDRA PRASAD SHUKLA,
AGED ABOUT 59 YEARS, OCCUPATION: BUSINESS 70
L.I.G. COLONY, DISTRICT INDORE (MADHYA PRADESH)
                                                          .....APPELLANT
(BY SHRI JAGDISH BAHETI-ADVOCATE)


AND
     ROOP SINGH S/O RAJJU SINGH JI DECEASED
     THROUGH LRS
     VISHWAS    S/O    LATE   SHRI   VIRENDRA   SINGH
     BUNDELA MINOR
     VAISHALI   S/O    LATE   SHRI   VIRENDRA   SINGH
     BUNDELA, MINOR
1.
     DEVANSH    S/O    LATE   SHRI   VIRENDRA   SINGH
     BUNDELA, MINOR
     THROUGH GUARDIAN AND NEXT FRIEND BHARAT
     SINGH S/O SHANKAR SINGH CHAUHAN ALL R/O
     SOMNATH KI NAI CHAWL, PATNIPURA, DISTRICT
     INDORE (MADHYA PRADESH)
     MANAGER     M.P.  CO-OPERATIVE           HOUSING
2. ASSOCIATION REGISTERED BHOPAL AREA INDORE
     (MADHYA PRADESH)
     RECOVERY OFFICER AND ADDITIONAL TEHSILDAR
     CO-OPERATIVE      SOCIETIES     INDORE   CURRENT
3.
     ADDRESS: MOTI TABELA, COLLECTOR OFFICE,
     INDORE (M.P.)

                                                        .....RESPONDENTS
                                             -2-



        This appeal coming on for hearing this day, the court passed the
following:

        Heard and Reserved on                 :      10.04.2023

        Judgment Pronounced on                :      27.04.2023

                                      JUDGMENT

The plaintiff/appellant has filed this Second Appeal being aggrieved by judgment and decree dated 28.11.2016 whereby Civil Suit No. 47A/2015 has been dismissed by VII Civil Judge Class-II, Indore and also by judgment and decree dated 22.09.2022 whereby RCA No. 37/2017 has been dismissed by XXVII District Judge, Indore.

The facts of the case are in short as under:-

1- The plaintiff filed the suit to get the decree of declaration of title and permanent injunction against the defendants stating that defendant No. 1 Late Roopsingh is the owner of house No. 332, situated at Jagjeevan Ram Nagar, Indore in which there is a shop which was rented to him on 12.09.1990 at the rate Rs.300/- per month (now Rs.500/- per month). During the currency of a lease, Defendant No. 1 mortgaged the house with Defendant No. 2 to get a loan.

2- According to the plaintiff Defendant No. 3 obtained a decree for recovery of the loan against Defendant No.1 which is not binding on him. Defendant No. 3 issued a notice on 03.04.2017 calling upon the plaintiff to vacate the house within 15 days for which defendant No. 3 had no right. Since the mortgage and notice dated 03.07.2017 are not binding on the plaintiff, therefore, defendant No.3 be restrained to evict the plaintiff from the shop in question by way of the permanent injunction.

3- Defendant No. 2 had filed a written statement by submitting that it is a society registered under the M.P. Co-operative Society Registration Act, 1960 (hereinafter referred to as 'Act, 1960') which is a State level society and aims

and objects of the society is to give house loan to its members. Defendant No. 1 through Gandi Basti Grah Nirman Sahakari Sanstha Maryadit, Indore mortgaged the plot No. 332 in the year 1989 and took a loan of Rs.50,000/- which he did not pay and became a debt due under Section 41 of the Act, 1960. The dispute was raised before the Deputy Registrar in which the decree of Rs.1,45,578.05 had been passed on 21.12.1998. In pursuant to the said decree, the execution proceeding bearing case No. 270 is pending since 1999. A notice has been issued to debt of Rs.4,79,276,.44/- failing which vacant of the mortgaged house be handed over. There is collusion between the plaintiff and defendant No. 1 and in order to defeat the decree the present suit has been filed with malafide intention.

4- Learned Civil Court has framed 4 issues for adjudication which are as under:-

     dza-                         okn iz'u                               fu"d"kZ
     1-      D;k oknh txthoujke uxj bankSj esa fLFkr
             izfroknh ds edku iSdh ,d nqdku uacj 3 esa                 ^^izekf.kr**
             izfroknh dk fdjk;snkj gksdj fof/kor dkfct gS \
     2-      D;k izfroknh dza- 2 o 3 }kjk voS/kkfud dk;Zokgh        ^^izekf.kr ugha**
             djrs gq;s nkfo;k LFkku ls csn[ky djus dk iz;kl
             fd;k tk jgk gSa \
     3-      lgk;rk ,oa O;; \                                ^^pj.k dza- 26 ds vuqlkj
                                                             fujkd`r**
     4-      D;k ;g okn bl U;k;ky; ds {ks=kf/kdkj esa gS \                ^^ugha**


5-          After evaluation of the evidence that came on record, the learned Civil

Judge has held that the plaintiff is a tenant of shop No. 3 owned by defendant No. 1 but failed to prove that defendants 2 and 3 are trying to evict him by not following the due process of law and accordingly vide judgment dated 28.11.2016 dismissed the suit.

6- The plaintiff/appellant preferred the Regular Civil Appeal on the grounds that for the purpose of recovery of the loan, the dispute was wrongly entertained under Section 64 of the M.P. Cooperative Society Act 1960.

Defendant No. 2 took an objection that by virtue of Section 80(3), no Court can question the judgment and decree, orders, decision and award passed under the Act, 1960. Vide judgment dated 22.09.2022, the First Appellate Court has dismissed the appeal and upheld the judgment and decree. Hence, this Second Appeal has been filed.

I have heard Shri Jagdish Baheti, learned counsel for the appellant/plaintiff.

7- Shri Baheti learned counsel for the appellant submitted that once the tenancy is created, the tenant could be evicted only after following due process of law as prescribed under the provisions of the Rent Control laws and cannot be evicted by using the provision of any other statute enactment for recovery of loan as held by the Apex Court Vishal N. Kalsaria Vs. Bank of India, reported in (2016) 3 SCC 762 and Bajrang Shyamsunder Agarwal Vs Central Bank of India, (2019) 9 SCC 94. It is further submitted that First Appellate Court as well as the trial Court failed to appreciate the provision of Section 80 of the M.P. Cooperative Society Act as the present case does not fall under Section 82. If defendants No. 2 and 3 want vacant possession of the house, they need to file suit for eviction under the provision of the M.P. Accommodation Control Act as the tenancy was created before the mortgaging entire house with the defendants .

8- That the plaintiff is a tenant of only one shop situated in the entire house No. 332 which was mortgaged with the defendant Nos. 2 and 3. Defendant No. 2 raised a dispute in which a decree had been passed against defendant No. 1 and thereafter a notice dated 03.04.2007 was issued to the plaintiff. Defendant No. 1 did not challenge the said decree in the civil suit, and he remained ex- parte in this suit also. The first Appellate Court has observed that there appears to be a collusion between the plaintiff and defendant No. 1 and a suit has been filed to protect from the recovery.

9- In the present case, the appellant/plaintiff came up with a plea that he is a tenant from 12.09.1990 and in support of it an unregistered agreement was filed and exhibited as Exb. P-1. The original of exhibit P-1 was not supposed to be in possession of the plaintiff and it should have been handed over to defendant No. 2. In cross-examination, the plaintiff admits that no such rent receipts were issued by defendant No.1 and he has not filed any land payment receipt. He also admits that no such date is written in exhibit P-1. Defendant No. 1 remained ex-parte which creates doubt that he was in collusion with the plaintiff. In the case of Bajrang Shyamsunder Agarwal Vs Central Bank of India (supra), the Apex Court held that the operation of the Rent Act cannot be extended to a 'tenant in sufferance' when the property was a mortgage. Defendant No. 1 never disclosed the factum of tenancy to Defendant No. 2.

10- In para 24.3 of the judgment passed in the case of Bajrang Shyamsunder Agarwal (supra), the Apex Court held that in any case, if any of the tenants claim that he is entitled to possession of a secured asset for a term of more than a year, it has to be supported by the execution of a registered instrument. It is further observed that in the absence of a registered instrument, if the tenant relies on an unregistered instrument or an oral agreement accompanied by delivery of possession, such tenant is not entitled to possession of the secured asset for more than the period prescribed under Section 107 of the T.P. Act. Therefore, in view of the above, I do not find any substantial question of law involved in this appeal as well as perversity in the judgment passed by the Civil Court and Appellate Court. Hence, the scope of interference in concurrent findings is very limited.

Accordingly, the Second Appeal is dismissed.

(VIVEK RUSIA) JUDGE vindesh

Digitally signed by VINDESH RAIKWAR Date: 2023.04.27 17:15:44 +05'30'