Madhya Pradesh High Court
Narayan Singh vs Rameshwardas Vilaiya on 7 February, 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 7 th OF FEBRUARY, 2023
SECOND APPEAL No. 2841 of 2022
BETWEEN:-
1. NARAYAN SINGH S/O SHRI NAMALUM, AGED
ABOUT 70 YEARS, R/O WARD NO. 31, IN FRONT OF
NEW HOUSING BOARD COLONY PS SHAHDOL,
TEHSIL SOHAGPUR DISTRICT SHAHDOL
(MADHYA PRADESH)
2. RAJEEV SINGH S/O SHRI NARAYAN SINGH, AGED
ABOUT 44 YEARS, R/O WARD NO.31, INFRONT OF
NEW HOUSING BOARD COLONY, POLICE
STATION SHAHDOL, TEHSIL SOHAGPUR,
DISTRICT SHAHDOL (MADHYA PRADESH)
3. RAHUL SINGH S/O SHRI NARAYAN SINGH, AGED
ABOUT 41 YEARS, R/O WARD NO.31, INFRONT OF
NEW HOUSING BOARD COLONY, POLICE
STATION SHAHDOL, TEHSIL SOHAGPUR,
DISTRICT SHAHDOL (MADHYA PRADESH)
4. RAGINI SINGH D/O SHRI NARAYAN SINGH, AGED
ABOUT 37 YEARS, R/O WARD NO.31, INFRONT OF
NEW HOUSING BOARD COLONY, POLICE
STATION SHAHDOL, TEHSIL SOHAGPUR,
DISTRICT SHAHDOL (MADHYA PRADESH)
5. RAJINI SINGH D/O SHRI NARAYAN SINGH, AGED
ABOUT 35 YEARS, R/O WARD NO.31, INFRONT OF
NEW HOUSING BOARD COLONY, POLICE
STATION SHAHDOL, TEHSIL SOHAGPUR,
DISTRICT SHAHDOL (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI SANJAY AGRAWAL, LEARNED SENIOR ADVOCATE ALONG
WITH SHRI SHEERSH AGRAWAL, ADVOCATE)
AND
RAMESHWARDAS VILAIYA S/O SHRI BHAGWANDAS
VILAIYA, AGED ABOUT 77 YEARS, R/O NEW GANDHI
CHOWK, WARD NO. 19, SHAHDOL, TEHSIL SOHAGPUR,
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/9/2023
6:15:00 PM
2
DISTRICT SHAHDOL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI P.C. PALIWAL, ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by defendants/tenants challenging the
judgment and decree dated 23.11.2022 passed by 3rd District Judge, Shahdol in
RCA No.66/2018, reversing the judgment and decree dated 16.08.2018 passed
by 3rd Civil Judge Class-II, Shahdol in Civil Suit No.115-A/2014, whereby
learned trial Court dismissed the suit for eviction of shop in question on the
ground under Section 12(1)(b)&(c) of the Madhya Pradesh Accommodation
Control Act, 1961, (in short 'the Act'), which in appeal has been decreed by
learned first appellate Court.
2. In the present case admitted facts are that, original defendant- Smt. Vidhya
Singh was inducted as tenant by the plaintiff- Rameshwardas Bilaiya in the year
1982 on the basis of oral contract of tenancy and undisputedly, the defendant
has paid rent to the plaintiff upto June 2007. In the year 2007, the defendant-
Smt. Vidhya Singh herself applied for grant of lease, which was granted for the
period w.e.f. 01/07/2007 to 31/07/2010, however, under the order of
Commissioner, this lease was cancelled vide order dated 15/06/2009.
3. In view of the aforesaid, the plaintiff alleged that due to denial of title by the
defendant, the plaintiff is entitled for decree of eviction on the ground under
Section 12(1)(c) of the Act. He further alleged that the defendant has sub let the
shop in question to Sanjay Bajaj, therefore, on this ground also he is entitled for
decree of eviction.
4. The learned counsel for the appellants/defendants submits that because the
defendant was in possession of the suit shop and upon inspection made by
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/9/2023
6:15:00 PM
Nazul Department, she came to know that the suit property does not belong to
the plaintiff and just with a view to protect her possession, she applied for lease
and the same was also granted by the Nazul Department but infact she has never
denied ownership of the plaintiff. He also submits that there is no sub-tenancy
proved by the plaintiff and he submits that the learned first appellate Court has
erred in granting decree of eviction on the ground under Section 12(1)(b)&(c)
of the Act, which was rightly refused by learned trial Court. Learned counsel for
the appellants in support of his submissions placed reliance on the decisions in
the case of Sheela and others Vs. Firm Prahlad Rai Prem Prakash (2002)
3 SCC 375; Bajranglal Verma Vs. Gyaso Bai and others 2004 (4) MPLJ
192; Balveer Singh Vs. Kishanlal AIR 1988 MP 227; Ramesh Chand
Agrawal Vs. Gopalkrishna Upadhyay 1997 (1) MPLJ 459 and interim
order dated. 01.05.2020 passed in Faheem Ahmad Vs. Rameshwardas
Bilaiya S.A. No.507/2018 at Jabalpur.
5. Learned counsel for the respondent supports the impugned judgment and
decree of eviction passed by learned first appellate Court and prays for
dismissal of the appeal.
6. Heard learned counsel for the parties and perused the record.
7. In view of the admitted relationship of landlord and tenant between the parties
and in view of the factum of payment of rent by defendant to the plaintiff upto
the month of June 2007, even if, the suit property belonged to Nazul
Department, there was no occasion available for the defendant to deny title of
the plaintiff, which from bare perusal of the written statement, was not only
denied but the defendant had also got the lease of the suit property in her
favour, which upon filing appeal by the landlord/plaintiff was cancelled vide
order dtd. 15.06.2009.
8. In this regard, the relevant paragraph 16 of the decision in the case of Sheela
& others (supra) is reproduced as under:
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/9/2023
6:15:00 PM
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 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 Vs. II Additional District Judge and
Ors. (1988) 3 SCC 137]. A denial of title which falls foul of the rule of
estoppel contained in Section 116 of 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 Vs. P.V.K. Krishna Rao (deceased) by
Lrs. (1989) 4 SCC 732, Kundan Mal Vs. Gurudutta (1989) 1 SCC
552 and Raja Mohammad Amir Ahmad Khan, (supra). We may quote
with advantage the law as stated by a Division Bench of Calcutta High
Court in Hatimullah and Ors. Vs. Mahamad Abju Choudhury, AIR
1928 Calcutta 312. It was held:
“The principle of forfeiture by disclaimer is that where the
tenant 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".
9. In view of the aforesaid, after considering overall conduct of the defendant,
in my considered opinion, learned first appellate Court has not committed any
illegality in granting decree of eviction on the ground under Section 12(1)(b) &
(c) of the Act.
10. At this stage, in the light of pendency of identical Second Appeal no.
507/2018, learned counsel for the appellants/defendants prays that appellants
may be granted two years time to vacate the suit shop, which has not been
opposed by the counsel appearing on behalf of the respondent.
11. In view of the prayer made on behalf of the appellants for granting time to
vacate the tenanted premises/shop, in the interest of justice and looking to the
period and nature of tenancy, about two years time for vacating the suit shop is
granted on the following conditions:-
(i) The appellants/defendants shall vacate the suit shop on or before 31.01.2025.
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/9/2023
6:15:00 PM
(ii) The appellants/defendants shall regularly pay rent to the respondent/landlord
and shall also clear all the dues, if any, including the costs of the litigation, if
any, imposed by the learned Courts below.
(iii) The appellants/defendants shall not part with the suit shop to anybody and
shall not change nature of the suit shop.
(iv) The appellants/defendants shall furnish an undertaking with regard to the
aforesaid conditions within a period of three weeks before the learned Court
below/Executing Court.
(v) If the appellants/defendants fail to comply with any of the aforesaid
conditions, the respondent/plaintiff shall be free to execute the decree forthwith.
(vi) If after filing of the undertaking, the appellants/defendants do not vacate the
suit shop on or before 31.01.2025 and create any obstruction, they shall be
liable to pay mesne profits of Rs.500/- per day, so also contempt of order of
this Court.
12. With the aforesaid observation, this second appeal is hereby dismissed and
disposed off. No order as to costs. Interim application(s), if any, shall stand
dismissed.
(DWARKA DHISH BANSAL)
JUDGE
RS
Signature Not Verified
Signed by: RASHMI
RONALD VICTOR
Signing time: 2/9/2023
6:15:00 PM
