Madhya Pradesh High Court
Rafiuddin vs Bharat Singh Rathore on 12 October, 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 12th OF OCTOBER, 2023
SECOND APPEAL No.957 of 2023
Between:-
AJIMUDDIN S/O SHRI BASIRUDDIN, AGED
ABOUT 65 YEARS, OCCUPATION: BUSINESS
R/O 520, SATHIYA SARAFA, JAWAHARGANJ
WARD, JABALPUR (MADHYA PRADESH)
.....APPELLANT
(SHRI RAKESH PANDEY, ADVOCATE)
AND
BHARAT SINGH RATHORE S/O LT. SHRI
SHANKARLAL RATHORE, AGED ABOUT 55
YEARS, OCCUPATION: BUSINESS R/O JANDI
TALIYA VEER DURGA DAS NAGAR TILAK
WARD JABALPUR (MADHYA PRADESH)
BHAGAT SINGH RATHORE S/O NOT
MENTION, AGED ABOUT 51 YEARS,
OCCUPATION: BUSINESS R/O JANDI TALIYA
VEER DURGA DAS NAGAR TILAK WARD
JABALPUR (MADHYA PRADESH)
RAFIUDDIN S/O BASIRUDDIN, AGED ABOUT 62
YEARS, R/O KAMRUDDIN AND SONS
KAMANIYA GATE SARAFA JABALPUR
(MADHYA PRADESH)
BALIUDDIN S/O KAMRUDDIN, AGED ABOUT
59 YEARS, R/O KAMRUDDIN AND SONS
KAMANIYA GATE SARAFA JABALPUR
(MADHYA PRADESH)
HAKIMUDDIN S/O BASIRUDDIN, AGED ABOUT
56 YEARS, R/O KAMRUDDIN AND SONS
2
KAMANIYA GATE SARAFA JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI J.L. SONI, ADVOCATE)
SECOND APPEAL No.1070 of 2023
Between:-
RAFIUDDIN S/O SHRI BASIRUDDIN, AGED
ABOUT 65 YEARS, OCCUPATION: BUSINESS
R/O 520, SARAFA JAWAHARGANJ WARD,
JABALPUR (MADHYA PRADESH)
..... APPELLANT
(BY SHRI SUNIL CHOUBEY, ADVOCATE)
AND
BHARAT SINGH RATHORE S/O LAT SHRI
SHANKARLAL RATHORE, AGED ABOUT 55
YEARS, OCCUPATION: BUSINESS R/O JANDI
TALIYA VEER DURGA DAS NAGAR TILAK
WARD JABALPUR (MADHYA PRADESH)
BHAGAT SINGH RATHORE S/O SHRI SHANKARLAL
RATHORE, AGED ABOUT 51 YEARS, R/O JANDI
TALIYA VEER DURGA DAS NAGAR TILAK WARD
JABALPUR (MADHYA PRADESH)
BALIUDDIN S/O KAMRUDDIN, AGED ABOUT 59
YEARS, R/O KAMRUDDIN AND SONS KAMANIYA
GATE SARAFA JABALPUR (MADHYA PRADESH)
HAKIMUDDIN S/O BASRUDDIN, AGED ABOUT 56
YEARS, R/O KAMRUDDIN AND SONS KAMANIYA
GATE SARAFA JABALPUR (MADHYA PRADESH)
AZIMUDDIN S/O BASIUDDIN, AGED ABOUT 52
YEARS, R/O KAMRUDDIN AND SONS KAMANIYA
GATE SARAFA JABALPUR (MADHYA PRADESH)
3
.....RESPONDENTS
(BY SHRI J.L. SONI, ADVOCATE)
...................................................................................................................................................................
These appeals coming on for admission this day, Court passed the
following:
ORDER
There being common question involved in both the S.A. Nos.
957/2023 and 1070/2023, which have arisen out of common judgment
and decree passed by learned Courts below, this order shall dispose off
both the second appeals.
2. This second appeal has been preferred by defendant 4 Ajimuddin
challenging the judgment and decree dtd. 11.03.2023 passed by 3rd
District Judge, Jabalpur in RCA No. 600006/2013 and 278/2022
affirming the judgment and decree dtd. 07.01.2013 passed by 7 th Civil
Judge Class-I, Jabalpur in Civil Suit No.215A/2009 whereby respondents
1-2/plaintiffs' suit for eviction filed on the grounds under Section 12(1)(a)
& (f) of the M.P. Accommodation Control Act, 1961 (in short 'the Act')
has been decreed only on the ground under Section 12(1)(f) of the Act
holding the plaintiffs' need to be bonafide.
3. In short the facts are that the plaintiffs claiming themselves to be
exclusive owner and landlord on the basis of family partition effected on
16.09.1997 instituted the suit for eviction on the grounds under Section
12(a) & (f) of the Act with the allegations that the defendants being tenant
in the suit shop are carrying out their business of selling shoes in the
name and style "Rafiuddin Kamruddin and sons", which was given on
rent by plaintiffs' grandfather Damrilal. It is alleged that the rented shop
is required for the business of plaintiffs and for son of plaintiff 1 and
there is no alternative accommodation available in the township of
Jabalpur and despite making demand, the defendants have not paid rent.
With the aforesaid allegations, the suit was filed.
4. The defendants appeared before learned trial Court and filed
written statement. In para 1 of the written statement, the defendants
contended that they are not aware about ownership of the plaintiffs but it
was admitted by them that the shop in question was given on rent by
Damrilal and Shankarlal to father of the defendant 2 namely Kamruddin
and after death of Kamruddin, his legal heirs are tenant in the shop. It is
also contended that after death of landlord Damrilal, the tenant
Kamruddin became tenant of Shankarlal, Omkar Prasad and Pratap Singh
and they were paid rent by Kamruddin. With these averments, the
defendants contended that all the legal heirs of landlord Damrilal as well
as of tenant Kamruddin are necessary party to the suit and in their
absence, the suit is liable to be dismissed.
5. After recording evidence, learned trial Court vide its judgment and
decree dtd. 07.01.2013 held that the plaintiffs are owner and landlord and
the defendants are tenant in the shop on rent of Rs. 90/- per month and the
rented shop is required for business of the plaintiffs as well as of plaintiff
1's son Ankit Rathore and there is no alternative accommodation
available in the township of Jabalpur. Accordingly decreed the suit,
however, only on the ground of bonafide requirement under Section 12(1)
(f) of the Act. Upon filing two separate appeals by defendants 1 & 4
Rafiuddin and Ajimuddin, learned first appellate Court has affirmed the
judgment and decree of trial Court vide its judgment and decree dtd.
11.03.2023.
6. Learned counsel(s) for the appellants submit that the shop in
question was given on rent by Damrilal to Kamruddin and after death of
Damrilal, the defendants were paying rent to the sons of Damrilal namely
Omkar Prasad, Pratap Singh and Shankarlal admitting them to be
landlord but the plaintiffs who have come to the Court on the basis of
family partition, have failed to prove it and without sufficient evidence
learned Courts below have wrongly found the partition to be proved. He
submits that Omkar Prasad, Pratap Singh and other legal representatives
of Shankarlal are necessary parties to the suit. He further submits that
because Kamruddin was proprietor of the firm "Rafiuddin Kamruddin
and sons", therefore, after death of Kamruddin, legal heirs of Kamruddin
were required to be made as party to the suit. He further submits that in
absence of proof of partition, the plaintiffs do not get any right to file the
suit and for the purpose of Section 12(1)(f) of the Act, the plaintiffs are
required to prove their ownership, which on the basis of alleged unproven
partition cannot be said to be proved. He submits that learned Courts
below have without taking into consideration the aforesaid aspect of the
matter, erred in decreeing the suit.
7. Learned counsel for the respondents 1-2/plaintiffs supports the
impugned judgment and decree passed by learned Courts below and prays
for dismissal of the second appeal and submits that learned Courts below
have not committed any illegality in holding the plaintiffs to be exclusive
owner on the basis of partition effected in the family and have also not
committed any illegality in passing decree of eviction on the ground of
bonafide requirement under Section 12(1)(f) of the Act.
8. Heard learned counsel for the parties and perused the record.
9. Induction of Kamruddin as tenant by Damrilal is not in dispute and
it is also not in dispute that after death of Damrilal, the original tenant
Kamruddin as well as the defendants were paying rent to sons of Damrial
namely Omkar Prasad, Pratap Singh and Shankarlal. It is undisputed fact
that the plaintiffs Bharat Singh and Bhagat Singh are sons of Shankarlal,
who died in the year 1990. Learned Courts below have upon due
consideration of the material available on record, found the plaintiffs to
be exclusive owners of the shop in question and in view of the fact that
the defendants were paying rent to father of the plaintiffs namely
Shankarlal, therefore, after death of Shankarlal, the plaintiffs are not only
owners of the property but are also landlord. As such, even if the case of
the appellants is taken to be true that the family partition pleaded by
plaintiffs, is not proved, then in view of the fact that the plaintiffs are sons
of landlord Shankarlal, they can be considered to be co- owners of the
shop in question and it is well settled that even a co-owner can bring the
suit for bonafide requirement of the tenanted shop. Fact remains that no
co-owner has raised any objection in the suit.
10. So far as the argument raised on behalf of the counsel for the
appellant(s) that all the landlords i.e. Omkar Prasad, Pratap Singh or their
legal representatives as well as the legal representatives of original tenant
Kamruddin have not been made parties, is concerned, in my considered
opinion in the light of decisions of Supreme Court in the case of India
Umbrella Manufacturing Co. and Others vs. Bhagabandei Agarwalla
(Dead) by LRs. Savitri Agarwalla (Smt.) and others (2004) 3 SCC 178
(para 6) and Ashok Chintaman Juker and Others vs. Kishore Pandurang
Mantri and Another (2001) 5 SCC 1, they are not necessary parties in the
present suit.
11. Learned Courts below upon due consideration of the material
available on record have held that the plaintiffs are in need of the shop for
bonafide requirement for themselves and for the son of plaintiff 1 and
there is no other alternative accommodation available in the township of
Jabalpur.
12. In the case of Kishore Singh vs. Satish Kumar Singhvi 2017(3)
JLJ 375 a coordinate Bench of this Court has relied upon the decision of
Supreme Court in the case of Ragavendra Kumar vs. Firm Prem
Machinary and Company AIR 2000 SC 534, and held that the findings
recorded on the question of bonafide requirement do not give rise to any
substantial question of law.
13. As such in my considered opinion, there is no substantial question
of law involved in the second appeal, hence the same deserves to be and
is hereby dismissed.
14. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
Pallavi
Digitally signed by KUMARI PALLAVI SINHA
Date: 2023.10.13 16:19:52 +05'30'
