Madhya Pradesh High Court
Shri Amarnath Vishwakarma vs Shri Munnilal Koshta on 6 August, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1 SA-1480-2009
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 6 th OF AUGUST, 2024
SECOND APPEAL No. 1480 of 2009
SHRI AMARNATH VISHWAKARMA
Versus
SHRI MUNNILAL KOSHTA
Appearance:
Shri Dhanraj Singh Choudhary- Advocate for the appellant.
Shri R.K. Verma- Senior Advocate with Ms. Priyanka Verma,
Advocate for the respondents.
ORDER
On 15.04.2024, both the parties were heard on merit of the case. On
17.03.2010, this appeal was admitted on the following substantial questions
of law:-
1. Whether the lower appellate Court had committed an error of
law in reversing the judgment of the Trial Court?
2. Whether the finding recorded by the First Appellate Court
that there is no landlord-tenant relationship between the
appellant and the respondent is a perverse finding?
3. Whether the appellant was entitled to file separate
applications before the Rent Controller Authority and also the
present suit?
2. It is submitted by the appellant/plaintiffs tenant that he had filed
a suit for injunction to prevent respondent/defendant/landlord from evicting
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him from the suit shop in House No.338 situated at Garha Ward Jabalpur.
Defendant - Munnilal was owner of the suit shop and the tenancy was in
favour of the plaintiff at Rs. 70/- per month as reflected in C.S. No.276-
A/2001 (Amarnath Vs Munnilal) judgment and decree dated 24.12.2004. It is
also argued that in Para No.2 of the trial Court, judgment dated 26.12.2004,
the tenancy was an admitted fact. During penency of the suit, defendant
forcefully evicted the plaintiff, therefore, the trial Court in the judgment
dated 24.12.2004 in Para 21(A) directed for restoration of the possession to
the plaintiff/tenant Amarnath.
3. First appeal of the defendant was allowed. However,
meanwhile, due to decree of restoration of possession on 24.12.2004 by the
trial Court in favour of the plaintiff and since that portion of the decree
regarding restoration of possession was not stayed, the possession of the suit
shop was received by the plaintiff. Previously, plaintiff carried out bicycle
puncture and repairs of business from a temporary shop but in the
intervening period, when the plaintiff/tenant was evicted from the tenant
premises, the defendant had constructed a pakka shop, which was handed
over to the plaintiff as per the direction of the trial Court in the judgment
dated 24.12.2004. Therefore, it is urged that finding of the trial Court is
correct regarding tenant landlord relationship, while the finding of the
learned First Appellate Court is against the admitted fact.
4. On the other hand, learned counsel for the respondent submitted
that respondent was the owner of the suit shop and there was no tenancy in
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favour of plaintiff. According to defendant Munnalal, he had rented out the
suit shop to one Bhola Koshta but before year 1994 cycle shop was being
carried out by plaintiff without his permission by plaintiff. After the year
1994 as the shop was in dilapidated condition, it fell down. Meanwhile,
plaintiff obtained a shop of Laxmi Narayan Kori situated in Siddh Nagar
Poorwa, which was numbered as 1061/2010 at Tripuri Chowk Garha.
Plaintiff has paid Rs. 6,000/- as advance money and pays Rs.200/- per month
rent. Bhola Ram Koshta handed over the possession of the suit shop to him
in the year 1994. The First Appellate Court corrected the error because if
plaintiff is to be believed then at the time of starting of tenancy, he must be
of 13-14 years of age and a minor could not have been inducted as a tenant.
The tenant had on his own vacated the suit shop and had gone away to his
hometown and now he has a new shop situated at Garha Jabalpur itself.
5. In June, 1995, there was no suit shop. Defendant has not
removed the articles of the plaintiff. Plaintiff made unnecessary complaint
against him in police Station Garha and offence under Section 448 of IPC
was registered but he was acquitted by the Court. Thereafter, he constructed
a pakka shop, which he wants to keep for his personal use.
6. As a counter argument, counsel for the appellant submitted that
plaintiff used to help his father Sitaram in shop and after his death, he
continued as a tenant.
7 Finding on substantial questions No.1 and 2:-
8. This Court has perused the record of both the Courts including
4 SA-1480-2009
pleadings, documents and oral evidence. Learned counsel for the respondent
relies on the judgment of Hon'ble Supreme Court in the case of Krishnaveni
vs. M.A. Shagul Hameed and Anr. in Civil Appeal No......2024 judgment
dated 15.02.2024 whereby the Hon'ble Supreme Court has held as follows:-
"Para 6(5)
I am of the view that as rightly contended by the learned counsel appearing for
the revision petitioners, the case on hand is squarely covered by the decision of
the Hon'ble Supreme Court reported in (2015) 5 SCC 622 (Mathai Mathai vs.
Joseph Mary Alias Mary Kutty Joseph and Ors. Following a privy council
decision, the Hon'ble Supreme Court held in categorical terms that a contract to
which a minor is a party is void ab initio. In this case, admittedly, the plaintiff
Krishnaveni was not represented by her natural guardian. A copy of the said
agreement has been enclosed in the typed set of papers. Even the stamp
documents have been purchased only in the name of Krishnaveni. Her mother
Gowri who was a special power agent for filing the suit had deposed that
Krishnaveni was a minor on the date when the suit agreement was entered into.
6. Therefore, this Court has to necessarily hold that such a suit agreement is
void. Such a void agreement cannot be enforced. In this view of the matter, the
order impugned in this Civil Revision Petition is set aside. The Civil Revision
Petition stands allowed. No costs. Consequently, connected miscellaneous
petition is closed."
7. There is no dispute on the contention raised by the defendants in the suit that
the appellant was a minor at the time of the said agreement dated 03.09.2007.
Therefore, such contract with a minor, was rightly found to be a void contract by
the High Court. For such conclusion, the High Court relied on the ratio in
Mathai Mathai vs. Joseph Mary Alias Marykutty Joseph (2015) 5 SCC 622. In
this judgment, the Court opined that a 15 year old could not have entered into a
valid contract in her own name and she ought to be represented either by her
natural guardian or a guardian appointed by the Court in order to lend legal
validity to the contract in question. The conclusion drawn by the High Court is
also supported by the Privy Council's decision in Mohori Bibee vs. Dharmodas
Ghose, ILR (1903) 30 Cal 539.
8. Mr. B Balaji, learned counsel for the appellant, submits at this juncture, that a
contract in favour of a minor is enforceable and is not void. He further submits
that the II Additional Subordinate Judge (28.04.2017) has rightly placed
reliance on Raghava Chariar vs. Srinivasa Raghavachariar,(1916) 40 Madras
308 and Thakur Das vs. Mt. Pulti, AIR 1924 Lah. 611, to hold that every
contract with a minor is not necessarily void, and a contract for a minor's benefit
is enforceable and the validity of such a contract can be considered during trial.
The appellant's argument deserves to be negated in light of the decision in
5 SA-1480-2009
Mathai Mathai (supra), wherein this Court has held:
"18. ... Many courts have held that a minor can be a mortgagee as it is
transfer of property in the interest of the minor. We feel that this is an
erroneous application of the law keeping in mind the decision of the
Privy Council in Mohori Bibee case [Mohori Bibee v. Dharmodas
Ghose, (1902-03) 30 IA 114 : ILR (1903) 30 Cal 539].
19. As per the Contract Act, 1872 it is clearly stated that for an
agreement to become a contract, the parties must be competent to
contract, wherein age of majority is a condition for competency. A
deed of mortgage is a contract and we cannot hold that a mortgage in
the name of a minor is valid, simply because it is in the interest of the
minor unless she is represented by her natural guardian or guardian
appointed by the court. The law cannot be read differently for a minor
who is a mortgagor and a minor who is a mortgagee as there are rights
and liabilities in respect of the immovable property would flow out of
such a contract on both of them. Therefore, this Court has to hold that
the mortgage deed, Ext. A-1 is void ab initio in law and the appellant
cannot claim any rights under it. Accordingly, the first part of first
point is answered against the appellant."
In the case of Santosh Hazari Vs. Purushottam Tiwari (deceased) by
LRs. [2001] 3SCC 179 Hon'ble Supreme Court has held as follow:-
"A perusal of the judgment of the trial Court shows that it has
extensively dealt with the oral and documentary evidence adduced by
the parties for deciding the issues on which the parties went to trial. It
also found that in support of his plea of adverse possession on the
disputed land, the defendant did not produce any documentary
evidence while the oral evidence adduced by the defendant was
conflicting in nature and hence unworthy of reliance. The first
appellate Court has, in a very cryptic manner, reversed the finding on
question of possession and dispossession as alleged by the plaintiff as
also on the question of adverse possession as pleaded by the defendant.
The appellate Court has jurisdiction to reverse or affirm the findings of
the trial Court. First appeal is a valuable right of the parties and unless
restricted by law, the whole case is therein open for rehearing both on
questions of fact and law. The judgment of the appellate Court must,
therefore, reflect its conscious application of mind, and record findings
supported by reasons, on all the issues arising along with the
contentions put forth, and pressed by the parties for decision of the
appellate Court. The task of an appellate Court affirming the findings
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of the trial Court is an easier one. The appellate Court agreeing with
the view of the trial Court need not restate the effect of the evidence or
reiterate the reasons given by the trial Court; expression of general
agreement with reasons given by the Court, decision of which is under
appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs.
Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however,
like to sound a note of caution. Expression of general agreement with
the findings recorded in the judgment under appeal should not be a
device or camouflage adopted by the appellate Court for shirking the
duty cast on it. While writing a judgment of reversal the appellate
Court must remain conscious of two principles. Firstly, the findings of
fact based on conflicting evidence arrived at by the trial Court must
weigh with the appellate Court, more so when the findings are based
on oral evidence recorded by the same presiding Judge who authors
the judgment. This certainly does not mean that when an appeal lies on
facts, the appellate Court is not competent to reverse a finding of fact
arrived at by the trial Judge. As a matter of law if the appraisal of the
evidence by the trial Court suffers from a material irregularity or is
based on inadmissible evidence or on conjectures and surmises, the
appellate Court is entitled to interfere with the finding of fact (See
Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC). The
rule is __ and it is nothing more than a rule of practice - that when
there is conflict of oral evidence of the parties on any matter in issue
and the decision hinges upon the credibility of witnesses, then unless
there is some special feature about the evidence of a particular witness
which has escaped the trial Judges notice or there is a sufficient
balance of improbability to displace his opinion as to where the
credibility lies, the appellate Court should not interfere with the finding
of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo
Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120).
Secondly, while reversing a finding of fact the appellate Court must
come into close quarters with the reasoning assigned by the trial Court
and then assign its own reasons for arriving at a different finding. This
would satisfy the Court hearing a further appeal that the first appellate
Court had discharged the duty expected of it. We need only remind the
first appellate Courts of the additional obligation cast on them by the
scheme of the present Section 100 substituted in the Code. The first
appellate Court continues, as before, to be a final Court of facts; pure
findings of fact remain immune from challenge before the High Court
in second appeal. Now the first appellate Court is also a final Court of
law in the sense that its decision on a question of law even if erroneous
may not be vulnerable before the High Court in second appeal because
the jurisdiction of the High Court has now ceased to be available to
correct the errors of law or the erroneous findings of the first appellate
Court even on questions of law unless such question of law be a
substantial one."
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9. On perusal of the record, it is seen that the learned First
Appellate Court in its judgment dated 06.10.2009 has considered all points
and as the First Appellate Court has arrived at the conclusion, this Court on
perusal of the record of both the Courts evidence and judgments is also of the
view that there was no rent agreement or tenancy created between plaintiff
and defendant. There is no proof of any sort, on which it can be assumed that
there was a tenancy between plaintiff-Amarnath Vishwakarma and
defendant-Munnilal Koshta regarding the suit shop. Bholaram had vacated
the suit shop and handed over the possession of the suit shop to the
defendant, which is reflected from the statement of the Plaintiff Witness
No.2-Sitaram Vishwakarma in paragraph 2 of cross-examination where he
has admitted that he has vacated the suit shop. The fact of sub-tenancy is also
confirmed from Exhibit-P/3 document filed by plaintiff which is between
Bhola Koshta and Amarnath Vishwakarma (Plaintiff). In fact, what was there
between plaintiff and tenant of the defendant Bholaram was in the nature of
sub-tenancy. Regarding the arguments of the learned counsel for the
plaintiff that in Para No.2 of the judgment of the trial Court, which has
recorded a finding that tenancy was admitted between plaintiff and defendant
is not the real case. In fact, whole paragraph No.1 of written statement has to
be read and on going through the written statement of the defendant in Para
No.1, instead of disputed, there seems to be typographical error and has been
mentioned as undisputed, in hindi, it is nirvivadit, whereas it is vivadit
because on complete reading of the Para No.1 of written statement, tenancy
has been clearly denied between plaintiff and defendant. Therefore, this
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Court is of considered view that no interference can be made in the judgment
of 1st appellate Court on perusal of the evidence of both the parties and the
judgment of the learned First Appellate Court. Accordingly, the findings on
substantial question No.1 is answered in negative and finding on substantial
question No.2 is also answered in negative and it is held that finding given in
respect of relationship of land and tenant is correct. As far as finding in
respect of substantial question No.3 is concerned it is held that since findings
recorded regarding substantial questions No.1 & 2 have been decided in
favour of respondent/defendant, therefore, no finding needs to be given on
substantial question No.3 whether the appellant/plaintiff could have filed
proceedings before the Rent Controlling Authority as well as suit as the same
issue is no longer material and not required to be answered.
Therefore, appeal is dismissed and the judgment of the learned First
Appellate Court is confirmed.
(AVANINDRA KUMAR SINGH)
JUDGE
K.S.
