Madhya Pradesh High Court
Jawahar Sen vs Smt.Santosh Chadda on 3 April, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 3rd OF APRIL, 2024
SECOND APPEAL No. 1375 of 2007
BETWEEN:-
1. JAWAHAR SEN S/O LATE SHRI DURGA
PRASAD SEN, AGED ABOUT 47 YEARS, REWA
HAIR CUTTING SAILOON BHARGAV
BUILDING.818,JAWAHARGANJ JBP (MADHYA
PRADESH)
2. RAJENDRA PRASAD SEN, AGED ABOUT 44
YEARS, REWA HAIR CUTTING SAILOON
BHARGAV BUILDING.818,JAWAHARGANJ JBP
(MADHYA PRADESH)
3. ANAND KUMAR SEN, AGED ABOUT 36 YEARS,
REWA HAIR CUTTING SILOON BHARGAV
BUILDING.818,JAWAHARGANJ JBP (MADHYA
PRADESH)
.........APPELLANTS
(BY MS. SANJANA SAHNI - ADVOCATE)
AND
1. SMT. SANTOSH CHADDA (DEAD) THR. LRS
ASHOK KUMAR CHADDA S/O LATE SHRI
LEKHRAJ CHADDA, AGED ABOUT 64
YEARS, R/O 1789, HANUMANTAL
JABALPUR (MADHYA PRADESH)
2. SMT. NEENA CHADDA W/O LATE SHRI
SATISH CHADDA, AGED ABOUT 41 YEARS,
1
1789,HANUMANTAL JABALPUR (MADHYA
PRADESH)
3. SMT PALAK NANDA, W/O GAURAV NANDA,
D/O LATE SATISH KUMAR CHADDA, AGED
ABOUT 19 YEARS, R/O NANDA BHAWAN
DAULI BABA SATNA (MADHYA PRADESH)
4. DILIP KUMAR CHADDA, S/O LATE SHRI
LEKHRAJ CHADDA, AGED ABOUT 40
YEARS, R/O 1789, HANUMANTAL
JABALPUR (MADHYA PRADESH)
5. SUNIL KUMAR CHADDA S/O, AGED ABOUT
36 YEARS, R/O 1789, HANUMANTAL
JABALPUR (MADHYA PRADESH)
..... RESPONDENTS
(BY SHRI RADHESHYAM TIWARI - ADVOCATE)
------------------------------------------------------------------------------------------------
This second appeal coming on for hearing this day, the court
passed the following:
JUDGMENT
This second appeal has been preferred by the appellants/
defendants challenging judgment and decree dtd.05.07.2007 passed by
Fourth Additional District Judge, Jabalpur in civil appeal No.17-
A/2007 affirming the judgment and decree dtd.13.02.2007 passed by
Fourteenth Civil Judge Class-II, Jabalpur in civil suit No.24-A/2003
whereby trial court decreed the suit for eviction on the grounds under
Section 12(1)(a),(c)&(f) of the M.P. Accommodation Control Act,
1961 (in short 'the Act') and in appeal filed by the
appellants/defendants, first appellate court has modified the judgment
and decree and maintained the decree of eviction on the grounds under
Section 12(1)(a)&(c) of the Act only.
2. Facts in short are that the plaintiffs/respondents had instituted a
suit for eviction and arrears of rent on the grounds available under
Section 12(1)(a),(c)&(f) of the Act claiming themselves to be owner
and landlord of the tenanted premises situated on ground floor of the
house No.818 admeasuring 307 sq.ft. on the premise of purchase of
house vide registered sale deed dtd.30.03.2001 (Ex.P-1) from Mahesh
Kumar Bhargava, Vijay Kumar Bhargava and Dr. Ashok Kumar
Bhargava with the allegations that the plaintiffs are in possession of first
floor of the house whereas the defendants are in possession of the entire
area of ground floor i.e. 307 sq.ft. in the capacity of tenants in which
they are carrying out their business of hair cutting. It is alleged that in
the tenanted shop father of defendants namely Durga Prasad Sen was
tenant on rent of Rs.315/- per month and after his death the defendants
became tenants in the shop. It is alleged that after sale of the house by
Bhargavas to the plaintiffs, they became owner of it and defendants and
Durga Prasad became their tenants. It is alleged that the disputed shop
was given to the defendants' father for non-residential purpose and after
purchase of the house the plaintiffs orally informed to the defendants
about their ownership and despite making several demands the
defendants did not pay rent to the plaintiffs, then the plaintiffs by
issuing notice on 08.01.2003 demanded rent of the period from
31.03.2001 to 31.12.2002 but the defendants did not pay any rent and by
sending false reply denied from ownership of the plaintiffs. It is alleged
that the plaintiffs are in need of the suit accommodation for need of
plaintiff 3 for starting business of readymade garments and for that
purpose there is no other alternative accommodation available in the
township. With the aforesaid allegations, the suit was filed.
3. The defendants appeared and filed written statement denying the
plaint averments and contended that plaintiffs or their predecessor-in-
title namely Mahesh Kumar Bhargava, Vijay Kumar Bhargava and Dr.
Ashok Kumar Bhargava are/were not owner of the house, hence they had
no right to transfer the house, therefore, the sale deed executed in favour
of plaintiffs is null, void and ineffective. It is alleged that the
defendants' father Durga Prasad Sen had entered into an agreement of
sale on 17.04.1998 to purchase the suit property from Parmeshwari Devi
Indra Kumar Bhargava Trust and thereafter another agreement was
executed on 18.02.2000 for sale of the house in question, therefore,
Durga Prasad Sen and defendants are in possession of the shop as owner
and are not liable to pay rent to the plaintiffs. Further, denying bonafide
requirement of plaintiff 3, as well as relationship of landlord and tenant,
the suit was prayed to be dismissed.
4. On the basis of pleadings of the parties trial court framed as many
as 10 issues and recorded evidence of the parties. In support of plaint
averments, the plaintiffs examined Dilip Kumar Chaddha (PW-1), Ashok
Kumar Chaddha (PW-2) and Mahesh Kumar Bhargava (PW-3)
(uncrossed) and produced documentary evidence (Ex.P/1 to P/24).
Similarly, the defendants examined Jawahar Sen (DW-1) and produced
documentary evidence (Ex.D/1-C and D/2-C).
5. It is pertinent to mention here that in present case the defendants/
alleged tenants are asserting ownership of house in Parmeshwari Devi
Indra Kumar Bhargava Trust and the plaintiffs are alleging the suit
property belonging to Mahesh Kumar Bhargava, Vijay Kumar Bhargava
and Dr. Ashok Kumar Bhargava, from whom the plaintiffs have
purchased the house and in respect of title dispute First Appeal
No.924/2005 is also pending before this Court against dismissal of suit
filed by Parmeshwari Devi Indra Kumar Bhargava Trust. As the present
second appeal is arising out of eviction suit filed on the grounds
available under the Special Act i.e. M.P. Accommodation Control Act,
1961, therefore, despite pendency of the aforesaid first appeal, this
second appeal is being decided, because in the present case question of
relationship of landlord and tenant among the parties is required to be
seen and adjudicated.
6. This second appeal was admitted by this Court on 27.02.2008 for
final hearing on the following substantial questions of law :
1. Whether learned two Courts below erred in substantial error
of law by holding the plaintiffs/respondents to be the
landlords of appellants by ignoring and misinterpreting Ex.
P-15 and Ex.P-16 mentioning no.135/4 of Dwarka Prasad ?
2. If Dwarka Prasad was the owner of no.135/4, whether same
could be sold by Vijay Kumar, Ashok Kumar and Mahesh
Kumar to plaintiffs vide registered sale deed Ex.P-1 ? If no,
whether learned two Courts below rightly came to hold that
the plaintiffs are landlords of defendants/appellants by virtue
of sale deed Ex.P-1 ?"
7. Learned counsel for the appellants/defendants submits that
although by way of judgment and decree dtd. 14.09.2005 passed in civil
suit no.17-A/2004, suit filed by Parmeshwari Devi Indra Kumar
Bhargava Trust, has been dismissed negativing the case of Parmeshwari
Devi Indra Kumar Bhargava Trust, against which First Appeal
No.924/2005 is pending, but that itself cannot be a ground to pass a
decree in favour of the plaintiffs until and unless the plaintiffs are able
to prove relationship of landlord and tenant among the plaintiffs and
defendants or with their predecessors-in-title i.e. Mahesh Kumar
Bhargava, Vijay Kumar Bhargava and Dr. Ashok Kumar Bhargava.
8. Learned counsel by inviting attention of this Court to the findings
recorded by trial court and first appellate court on the issue no.2,
submits that trial court has recorded finding of relationship on the basis
of ownership of the plaintiffs derived by them on the basis of registered
sale deed dtd.30.03.2001 (Ex.P/1) whereas it is an admitted fact that
father of defendants namely Durga Prasad Sen or the defendants never
paid any rent to the plaintiffs and the plaintiffs have also failed to prove
that the defendants or their father Durga Prasad Sen had ever paid any
rent to predecessors-in-title of the plaintiffs namely Mahesh Kumar
Bhargava, Vijay Kumar Bhargava and Dr. Ashok Kumar Bhargava.
Learned counsel submits that courts below by misinterpreting the
documents (Ex.P-15 and P-16) have committed illegality in holding the
plaintiffs to be owner of the suit property also. By placing reliance on
the decision in the case of Tribhuvanshankar vs. Amrutlal (2014) 2 SCC
788 (para 31) learned counsel submits that in absence of any
relationship of landlord and tenant among the parties, no decree of
eviction could have been passed and the findings recorded by courts
below in absence of any oral or documentary evidence, are not
sustainable. With these submissions learned counsel prayed for allowing
the second appeal and for dismissal of the suit in its entirety.
9. Learned counsel appearing for the respondents/plaintiffs supports
the judgment and decree passed by courts below and prays for dismissal
of second appeal with the further contentions that while deciding the
issues 1-2, courts below have concurrently held the plaintiffs to be
owner and landlord of the suit accommodation and the finding in respect
of relationship of landlord and tenant recorded by courts below being a
pure finding of fact, is not liable to be interfered with in the limited
scope of Section 100 CPC. By inviting attention of this court to
paragraphs 17, 18 and 20 of defendants' witness Jawahar Sen (DW-1)
learned counsel submits that the defendant-Jawahar Sen has not given
specific statement about his status in the suit shop and admittedly Durga
Prasad Sen being inducted as tenant in the shop, the courts below have
not committed any illegality in holding the relationship of landlord and
tenant proved and in decreeing the suit. In support of his submissions he
placed reliance on the decisions of Hon'ble Supreme Court in the case
of Keshar Bai vs. Chhunulal (2014) 11 SCC 438 and Firojuddin and Anr.
vs. Babu Singh (2012) 3 SCC 319. With these submissions learned
counsel prays for dismissal of the second appeal.
10. Heard learned counsel for the parties and perused the record.
Substantial Question of Law No.1 & 2:
11. Undisputedly the defendants are in possession of the suit
accommodation since the time of their father Durga Prasad Sen, who
was admittedly tenant in the suit accommodation. The defendants
claimed that their father was tenant in the suit accommodation of
Parmeshwari Devi Indrakumar Bhargava Trust and now on the basis of
agreement of sale, they are in possession of the suit accommodation as
owner. On the other hand the plaintiffs claimed that they purchased the
suit property from Mahesh Kumar Bhargava, Vijay Kumar Bhargava and
Dr. Ashok Kumar Bhargava vide registered sale deed dtd. 30.03.2001
(Ex. P/1) and Durga Prasad Sen being tenant of Mahesh Kumar
Bhargava, Vijay Kumar Bhargava and Dr. Ashok Kumar Bhargava, the
plaintiffs have become owner and landlord of the suit accommodation on
the premise of sale deed (Ex.P/1).
12. From perusal of entire record, it is clear that there is no
documentary evidence available on record regarding relationship of
landlord and tenant among Durga Prasad Sen or defendants and Mahesh
Kumar Bhargava, Vijay Kumar Bhargava and Dr. Ashok Kumar
Bhargava nor there is any receipt of rent paid by Durga Prasad Sen or
defendants to Mahesh Kumar Bhargava, Vijay Kumar Bhargava and Dr.
Ashok Kumar Bhargava. It is also an undisputed fact on record that after
purchase of the suit property by the plaintiffs, Durga Prasad Sen or
defendants never paid any rent to the plaintiffs.
13. With a view to prove alleged relationship of landlord and tenant
among the plaintiffs or their predecessors-in-title with Durga Prasad Sen
and defendants, the plaintiffs tried to examine Mahesh Kumar Bhargava
(PW-3) (from whom the plaintiffs have purchased the suit property), but
for the reasons best known to the plaintiffs, despite filing affidavit of
chief examination under Order 18 Rule 4 CPC, Mahesh Kumar Bhargava
(PW-3) did not appear for cross-examination by the defendants.
14. Except unreliable oral evidence of the plaintiffs and the registered
sale deed (Ex.P/1) executed by Mahesh Kumar Bhargava, Vijay Kumar
Bhargava and Dr. Ashok Kumar Bhargava in favour of the plaintiffs, no
other document has been placed on record of the Court to prove the
factum of relationship of landlord and tenant amongst the plaintiffs and
defendants. Perusal of entire statement of defendant-Jawahar Sen (DW-
1) also shows that even by making effective cross examination on him,
the plaintiffs have not been able to bring on record any admission on the
part of the defendants regarding relationship of landlord and tenant
amongst the plaintiffs and defendants.
15. Although while deciding the issue No.2 courts below have held
that there is relationship of landlord and tenant among the plaintiffs and
defendants, but that finding has been recorded by courts below only on
the premise that the plaintiffs have purchased the suit property by way
of registered sale deed (Ex.P/1). In my considered opinion, in absence of
any other material/admissible evidence, the findings of Courts below on
issue no. 2, are not sustainable and in absence of any other supportive
evidence, mere sale deed cannot be made basis for recording finding on
the question of relationship of landlord and tenant. Further, the
documents Ex.P-15 & Ex.P-16 being the mutation entries of the names
of Bhargavas, have no relevance about relationship of landlord & tenant.
16. In view of aforesaid factual scenario, the decisions relied upon by
learned Counsel for the respondents in the case of Keshar Bai (supra)
and Firojuddin (supra) are not applicable to the instant case and are
distinguishable on facts.
17. In the case of Tribhuvanshankar (supra) the Hon'ble Supreme
Court has held as under :
"30. On a seemly analysis of the principle stated in the aforesaid authorities, it is quite
vivid that there is a difference in exercise of jurisdiction when the civil court deals
with a lis relating to eviction brought before it under the provisions of Transfer of
Property Act and under any special enactment pertaining to eviction on specified
grounds. Needless to say, this court has cautiously added that if alternative relief is
permissible within the ambit of the Act, the position would be different. That apart,
the Court can decide the issue of title if a tenant disputes the same and the only
purpose is to see whether the denial of title of the landlord by the tenant is bona fide
in the circumstances of the case. We respectfully concur with the aforesaid view and
we have no hesitation in holding that the dictum laid down in Bhagwati Prasad (supra)
and Bishwanath Agarwalla (supra) are distinguishable, for in the said cases the suits
were filed under the Transfer of Property Act where the equitable relief under Order
VII Rule 7 could be granted.
31. At this juncture, we are obliged to state that it would depend upon the Scheme of
the Act whether an alternative relief is permissible under the Act. In Rajendra Tiwari's
case the learned Judges, taking into consideration the width of the definition of the
"landlord" and "tenant" under the Bihar Buildings (Lease, Rent and Eviction) Control
Act, 1982, had expressed the opinion. The dictionary clause under the Act, with which
we are concerned herein, uses similar expression. Thus, a limited enquiry pertaining
to the status of the parties, i.e., relationship of landlord and tenant could have been un-
dertaken. Once a finding was recorded that there was no relationship of landlord and
tenant under the Scheme of the Act, there was no necessity to enter into an enquiry
with regard to the title of the plaintiff based on the sale deed or the title of the defend-
ant as put forth by way of assertion of long possession. Similarly, the learned appellate
Judge while upholding the finding of the learned trial Judge that there was no relation-
ship of landlord and tenant between the parties, there was no warrant to reappreciate
the evidence to overturn any other conclusion. The High Court is justified to the ex-
tent that no equitable relief could be granted in a suit instituted under the Act. But, it
has committed an illegality by affirming the judgment and decree passed by the
learned trial Judge because by such affirmation the defendant becomes the owner of
the premises by acquisition of title by prescription. When such an enquiry could not
have been entered upon and no finding could have been recorded and, in fact, the
High Court has correctly not dwelled upon it, the impugned judgment to that extent is
vulnerable and accordingly we set aside the said affirmation."
18. In view of the aforesaid discussion and legal position settled by
Hon'ble Supreme Court in the case of Tribhuvanshankar ( supra), in my
considered opinion the judgment and decree of eviction passed by courts
below on the grounds available under Section 12(1)(a)&(c) of the Act
are not sustainable and are hereby set aside. Accordingly substantial
question of law no. 1 & 2 are decided in favour of the appellants/
defendants and against the respondents/plaintiffs holding thereby that no
relationship of landlord and tenant is there amongst the plaintiffs and
defendants.
19. Resultantly, suit filed by the respondents/plaintiffs stands
dismissed. However, the plaintiffs are at liberty to file suit for
possession on the basis of their ownership against the defendants or any
other person in possession of the suit accommodation.
20. Parties shall bear their own cost.
21. Pending application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
ss
Date: 2024.04.06 12:00:36 +05'30'
