Madhya Pradesh High Court
Smt.Jyoti Sharma vs Vishnu Goyal on 7 August, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
-( 1 )- S.A. No. 657 of 2009
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
SECOND APPEAL NO. 657 of 2009
BETWEEN:-
SMT. JYOTI SHARMA
.....APPELLANT/PLAINTIFF
(SHRI N.K. GUPTA , SENIOR ADVOCATE WITH SHRI B.D. JAIN,
ADVOCATE FOR THE APPELLANT)
VS.
VISHNU GOYAL AND ANR.
.....RESPONDENTS/DEFENDANTS
(SHRI R.D. JAIN, SENIOR ADVOCATE WITH SHRI SAMEER KUMAR
SHRIVASTAVA - ADVOCATE FOR THE RESPONDENT).
Whether approved for reporting :- Yes
Reserved for judgment on : 25/07/2024
_____________________________________________________
This appeal coming on for pronouncement of judgment on this day,
the court passed the following:
Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 07-08-2024
04:18:58 PM
-( 2 )- S.A. No. 657 of 2009
JUDGMENT
(Passed on 07/08/2024)
1. This Second appeal under Section 100 of Civil
Procedure Code (for brevity, CPC) has been filed by the
appellant/plaintiff against the impugned judgment and
decree dated 13/10/2009 passed by Court of XIII Additional
District Judge, Gwalior in Civil Appeal No. 13-A/2009
arising out of Judgment and decree dated 30/04/2007 passed
by 5 t h Civil Judge, Class - 1, District Gwalior in Civil Suit
No. 26-A/2007.
2. The necessary facts for disposal of the present appeal,
in short, are that appellant (hereinafter referred to as the
plaintiff ) filed a suit for eviction u/s 12(1)(a)(c) & (f) of
M.P. Accommodation Control Act, 1961 (for brevity, "Act")
and arrears of rent against the respondents (hereinafter
referred to as the defendants) narrating therein that the
plaintiff owns a house situated at Hanuman Chouraha,
Lashkar, Gwalior bearing Municipal House No. 45/26. The
said house has been owned by the plaintiff by virtue of a
Will dated 12.05.99 executed by her father-in-law, Shri
Ramjidas Sharma. Tenanted shop is situated at ground floor
of aforesaid house wherein, father of defendants, Late Shri
Kishanlal has been inducted as tenant on 09.11.53 by father-
in-law of plaintiff. After demise of Late Shri Kishanlal,
defendants have become tenant in the shop at the rate of Rs.
300/- per month. The defendants have paid the rent
promptly till December, 1999, thereafter, they have been
constant defaulter even after repeated request since January,
2000. So, the arrears of rent for 22 months i.e till the date
of filing a suit (October, 2001) is Rs. 6,600/-.
3. It has further been pleaded in the plaint that the
husband of plaintiff has already been running a shop of
sweets, namkeen, gajak etc. adjoining to eastern side of
tenanted premises and the same shop has been given to the
minor sons of plaintiff through a Will dated 12.05.99.
Husband of plaintiff alongwith his father since his lifetime
has been running the business of sweets, namkeen, gajak
etc. Plaintiff is also willing to start the same above
mentioned business of sweets, namkeen, gajak etc. with the
aid of her husband, and, for this very business, plaintiff
requires the tenanted shop bonafide as she is not available
with any non-residential accommodation within the
municipal limits. Plaintiff has further pleaded about the
convenience, suitability and feasibility of the tenanted shop
for her business in paragraph 6 of plaint. Plaintiff has also
pleaded about non-suitability of an another available
accommodation owned by her husband in context of its'
present usage.
4. It has further been pleaded by the plaintiff that the
denial of her title by defendants makes out a case under
Section 12(1)(c) of M.P. Accommodation Control Act, 1961.
Therefore, plaintiff sent a registered notice dated
29.08.2001 to defendants demanding arrears of rent and
requested to evict the tenanted shop. Same has been
received by defendants, but of no avail. Hence, plaintiff
filed the present suit.
5. The defendant No. 1 has submitted his written
statement and denied the relation of landlord and tenant
between him and plaintiff in respect to tenanted shop. It is
averred that the Will dated 12.05.99 itself mentions about
prior ownership of Sualal who died in January 1984.
Ramjidas was not the son of Sualal, but, he was the son of
Madhavlal. So, Ramjidas was merely a rent collector on the
instructions of Sualal. Moreover, Ramjidas did not have any
right to execute the Will dated 12.05.1999 as heirs of Sualal
were also alive at the time of his death. Sualal did not
execute any Will, if produced, then it would be a forged
one.
6. It has further been pleaded by the defendants that they
have already paid the rent to husband of plaintiff upto
30.11.2001. It is also averred that many times rent has been
enhanced under the threat of eviction. However, husband of
plaintiff never issued the rent receipts. Since, rent is
already paid upto 30.11.2001, so, any arrears from January
2000 onwards are denied.
7. It has further been pleaded that the requirement of
plaintiff is malafide simply for the purpose of eviction.
Otherwise also, plaintiff is a house wife and, she is not
interested in starting the business with the help of her
husband. Plaintiff also lacks experience. Plaintiff and her
husband are also having alternative accommodation.
Defendants have also denied the amended plea of plaintiff
with regard to non-availability of any alternative
accommodation in toto. Defendants have further denied the
plaintiff averment in respect of convenience, suitability and
feasibility of tenanted shop for starting the business.
8. It has further been pleaded by the defendants that they
have challenged the derivative title of plaintiff which would
not entitle plaintiff for eviction decree under Section 12(1)
(c) of M.P. Accommodation Control Act, 1961.
9. The defendants have also taken the special pleas that if
plaintiff proves her ownership then defendants agree to hold
her their landlord. Defendants are depositing the rent in the
Court reserving their rights under Section 13(2) & 13(3) of
M.P. Accommodation Control Act, 1961. Hence, defendants
have prayed for dismissal of suit.
10. The defendant No. 2 has remained ex-parte through out
the matter and therefore, he has been proceeded ex-parte.
11. After hearing the parties, the learned trial court has
dismissed the suit in toto vide judgment and decree dated
30.04.2007. Thereafter, plaintiff preferred the First Appeal
wherein learned first appellate court has remanded the
matter for re-adjudication of all the issues. Defendant no. 1
preferred an appeal against remand order before this Court
wherein findings of learned first appellate Court were set
aside and case was remanded to learned first appellate
Court for re-adjudication. Thereafter, an application under
Section 24 of C.P.C. was moved by defendant which has
been decided by the High Court. Learned first appellate
Court dismissed the suit vide impugned judgment & decree.
Hence, this second appeal.
12. Learned counsel for the appellant/plaintiff submits that
the judgment & decree dated 13.10.2009 is contrary to law.
The learned Courts below have though discussed the extent
of degree of proving the ownership in requirement based
eviction suit, but have still failed to understand it
conceptually. That is to say, in view of specific pleading of
plaintiff with regard to acquisition of title by virtue of Will
dated 12.05.1999 from Ramjidas, then, learned Courts
below ought not to have required the plaintiff to prove the
title of Ramjidas as the present suit is an eviction suit and
not a title suit.
13. It has further been submitted that the learned Courts
below have overlooked the admission of defendant No.1 in
respect to ownership of Ramjidas and Rent Note Ex.P-5 and
so, erred in pronouncing the impugned judgment & decree.
14. It has further been submitted that the defendants have
denied the title of Ramjidas also, however, learned Courts
below ought to have held them estopped under Section 116
of Evidence Act.
15. It has further been submitted that the learned Courts
below have committed an error by letting the defendants to
challenge the Will dated 12.05.1999 executed in favour of
plaintiff.
16. It has further been submitted that the learned Courts
below have, otherwise also, wrongly applied the principle
of attornment and thus, erred in passing the impugned
judgment & decree. It is a trite law that attornment of
tenancy is desirable but not a necessity.
17. It has further been submitted that both the learned
court below has lost its sight over the provisions of Section
63, Indian Succession Act, 1925 and Section 68, Indian
Evidence Act, 1872. Undisputedly, plaintiff has successfully
proven the Will dated 12.05.1999 in accordance to the
aforesaid provisions,
18. It has further been submitted that the learned Court
below has also erred in holding that the attesting witness
PW-2 has been an interesting witness being a relative, and
therefore, his testimony would not suffice.
19. It has further been submitted that the learned appellate
Court has also committed an error by comparing the
signatures of Ramjidas on its own.
20. It has further been submitted that the learned appellate
Court did not bother to adjudicate the bonafide need of
plaintiff.
21. It has further been submitted that the learned appellate
Court has also mislead itself while adjudicating the ground
of eviction under Section 12(1)(c) of M.P. Accommodation
Control Act, 1961. It is crystal clear that defendants have
not only challenged the title of plaintiff, but also alleged
the Will dated 12.05.1999 to be forged and executed by
Ramjidas who was not competent to execute the same. So,
explicitly, defendants have challenged the admitted title of
Ramjidas which entities the plaintiff for a decree of
eviction U/s 12(1)(c).
22. It has further been submitted that the learned trial
Court has otherwise also erred in considering the impact of
Section 109 of Transfer of Property Act, 1882, whereby, it
is provided that in case of a valid transfer, transferee shall
possess all the rights.
23. On the other hand, learned counsel for the
respondent/defendant supported the impugned judgment and
decree passed by the court below and prayed for dismissal
of the instant appeal being bereft of merit and substance.
24. Heard parties on I.A. No. 1496/2019, an application under
section XLI Rule 27 of CPC filed by the appellant.
25. By filing this application, the appellant prays to admit the
judgment of probate court passed in case No. 08/2015 in respect to
the Will allegedly executed by Ramjidas on 12/05/1999.
26. The respondent has filed its reply vide document No.
3452/2023 and vehemently opposed the application and argued that
relationship of the landlord between appellant and the respondent has
not been found established by both the courts below and, therefore,
the suit was dismissed. It is further argued that the ground of Will was
raised before learned trial court as well as learned first appellate court,
but that ground has been rejected. Now, after obtaining the probate on
the basis of the same Will, in which, the respondents were not made
party, the appellant is trying to fulfill the lacunae which cannot be
allowed. It is further argued that no ground is available to the
appellant under Order XLI Rule 27 of CPC for taking additional
evidence on record, therefore, the application be dismissed.
27. Order 41 Rule 27, of the Civil Procedure Code of 1908
specifies the conditions under which the court may permit parties to
the appeal to present evidence at the appellate stage.
These conditions are:
1. If the trial court that rendered the decree refused to accept
evidence that should have been accepted, or;
2. If the appellant is successful in proving that the evidence in
question was not known to him, or;
3. If the party appealing is able to prove that, despite his best efforts,
he was unable to produce the evidence when the trial court issued
the decree being appealed;
4. If an appellate court requires a document be produced or a witness
be questioned in order to reach a decision, or;
5. If the appellate court requests the production of any documents or
the cross-examination of any witnesses for any other substantial
cause.
28. The perusal of the record indicates that the appellant /plaintiff
claimed her ownership over the disputed shop on the basis of Will
allegedly executed by Ramjidas, however, learned trial court as well
as learned first appellate court have disbelieved execution of said Will
on various grounds. Once execution of the Will was disbelieved by
two competent courts, the petition for probate has been filed during
pendency of appeal. The appellant has failed to show any ground
why the petition for getting probate was not filed during the trial. The
appellant has also failed to show that the trial court that rendered
the decree refused to accept aforesaid evidence that should have
been accepted or the evidence in question was not known to him or
despite his best efforts, he was unable to produce the evidence when
the trial court issued the decree being appealed. The counsel for
appellant vehemently argued that the probate which is judgement in
rem, must be accepted as an additional evidence. However, above
argument is not acceptable in the light of the fact that this evidence
was created just to fulfill the lacuna after dismissal of suit by two
competent courts because the will was not found to be proved on
various grounds. It is a trite law that additional evidence can not be
accepted to fulfill the lacuna. the judgment of probate court
reflects that nowhere in the entire judgment there is
discussion about the findings given by the learned courts
below. It was the duty of the appellant herein to inform the
probate court that the will has already been scrutinized by
two courts and the same has not been found to be genuine.
Moreover, the evidence which is being filed along with the
application is a created evidence which never existed either
before learned trial court nor before learned lower appellate
court. Therefore, such created evidence cannot be admitted
in evidence in any manner. Further, this provision does not
apply, when on the basis of evidence on record, the appellate court
can pronounce a satisfactory judgment. The matter of taking
additional evidence on record is entirely within the discretion of the
court and is to be used sparingly. Such a discretion is only a judicial
discretion circumscribed by the limitation specified in the Rule
itself. The appellate court should not, ordinarily allow new
evidence to be adduced in order to enable a party to raise a new
point in appeal. Similarly, where a party on whom the onus of
proving a certain point lies fails to discharge the onus, he is not
entitled to a fresh opportunity to produce evidence, as the court can,
in such a case, pronounce judgment against him and does not
require any additional evidence to enable it to pronounce judgment.
29. In view of above, I.A. No. 1496/2019 is hereby
dismissed.
30. Heard learned counsel for the rival parties on merits
and perused the material available on record.
31. This second appeal has been admitted on the
following substantial questions of law:
"(i) Whether, learned appellate Court has
wrongly discarded the Will dated 05.12.99 on
the basis of non-examination of second
attesting witness even though it was
successfully proven by one attesting witness?
(ii) Whether, defendant / tenant can challenge
the execution Will dated 05.12.99 by Ramjidas
in favour of plaintiff although title of Ramjidas
was admitted by tenant?
(iii) Whether, a landlord is required to prove
admitted title of his predecessor in requirement
based eviction suit?
(iv) Whether, PW-2 an attesting witness to Will
dated 05.12.99 could be held as an interesting
witness merely due to his relation with
Ramjidas specifically in absence of any legal
prohibition / bar ?
(v) Whether, learned appellate Court has acted
contrary to law by comparing the signatures of
Ramjidas on its own motion under Section 73
of Evidence Act, 1872?
(vi) Whether, challenging the admitted title by
defendant against the principle of estoppel
under Section 116 of Evidence Act, 1872 shall
not entitle the plaintiff/landlord for eviction
decree under Section 12(1)(c) of M.P.
Accommodation Control Act, 1961?
(vii) Whether, learned appellate Court was not
under legal obligation to give finding upon
bonafide need of plaintiff especially when
plaintiff is proven to be owner thereof under
Section 12(1)(f) of M.P. Accommodation
Control Act, 1961?"
32. The perusal of judgments of learned courts below
indicate that the will was disbelieved not only on the
ground of non examination of second attesting witness but
on the basis of various other reasons. In the case in hand
the execution of will has been found to be suspicious on
various other grounds and plaintiff has failed to remove the
suspicious circumstances surrounding the execution of will.
Learned courts below have disbelieved the testimony of
PW-2 and such finding is based on appreciation of evidence
and as per settled law finding recorded on the basis of
appreciation of evidence even if perverse cannot be set
aside in second appeal as the same are pure finding of fact.
Disbelieving a particular witness is a pure finding of fact
which is not open for interference in an appeal filed under
Section 100 of CPC. Therefore,these substantial questions
of law which are wrongly framed as they are question of
facts, are answered against the appellant.
33. The reading of aforesaid substantial questions of
law indicates that question no.2 framed by this court
is totally contradictory with question no.6. As per
question no.2 the tenant has admitted the title of
Ramjidas and therefore once having admitted the title,
no challenge can be made to the will executed by
Ramjidas. However, question no.6 is framed in such a
manner with shows that the defendant is not accepting
the title of Ramjidas and therefore the tenant should be
evicted. Findings on both the questions are being given
as below.
SQL No.-2
34. In this case the plaintiff claimed herself as the owner
of the suit house on the basis of alleged execution of will
by late Ramjidas. However, as discussed above, the plaintiff
has failed to prove execution of will.
35. So far as question of attornment is concerned, the plaintiff has
filed rent receipt Ex. P/5 as documentary evidence to prove the
payment of rent by defendant-tenant from 01/10/1999 to
31/12/1999. However, this receipt does not have the signature of
landlord or the person who had received the rent. Ex. P/5 indicates
that respondent /defendant has signed on the back side of the receipt
on 30/03/1999, therefore, this receipt does not prove that after
execution of the alleged Will, the plaintiff has received the rent
from the respondent/defendant.
36. The plaintiff (PW/1) in her statement stated that no notice was
given to the respondent/defendant before the date of Ex. P/5
indicating that she had become the owner of the disputed shop on
the basis of Will (Ex. P/1). The plaintiff at para 18 has also stated
that she had never demanded rent from the defendant. The plaintiff
has failed to file any receipt which was issued by her. In her
statement at para 18, she has stated that she has never demanded
rent from defendant. Even after perusal of Ex. P/5, it reveals that
name of Kishanlal is written as tenant on it. The record further
reveals that the plaintiff has admitted at para 37 of her statement
that after the death of her father-in-law Ramjidas, and before giving
rent receipt Ex.P-5 to defendant, she never sent any notice to the
defendants indicating that her father-in-law had died after executing
any Will in her favour.
37. The plaintiff (PW/1) at para 31 has also stated that after the
death of father-in-law her husband had received rent from the
defendants and she has never signed any receipt. The statement of
plaintiff (PW/1) further reveals that before the death of Ramjdas he
was getting the rent and after his death Madan Mohan Sharma was
receiving the rent from the defendants. She has also admitted that
though the rent receipt Ex.P-5 was given in her presence but she has
not signed the receipt.
38. There is no pleadings in the plaint that Madan Mohan Sharma
was receiving the rent on behalf of his wife/ plaintiff. There is
nothing on record to show that Madan Mohan Sharma has ever
informed to the defendants that he was receiving the rent on behalf
of his wife/plaintiff. PW/3 - Madan Mohan Sharma in his cross
examination at para 17 stated that after the death of his father, he
received rent from the defendant- Vishnu. He has admitted that he
has never given any receipt to the defendants with the signature of
his wife in the capacity of the landlord. This witness PW-3 has
further admitted that after the death of his father Ramjidas, he has
not sent any notice to the defendants indicating that plaintiff on the
basis of Will has become the owner of the disputed shop. In view of
the aforesaid evidence, learned Courts below have not erred in
holding that the plaintiff has failed to prove that after the death of
Ramjidas there was attornment of tenancy in favour of plaintiff by
defendant.
39. As discussed above, there had never been any
attornment of the tenancy by the tenant-defendant in
favour of plaintiff. Neither the plaintiff has received the
rent, not any receipt signed by plaintiff as landlord has
been given to tenant. Therefore, the plaintiff is totally a
third party for tenant. As per plaintiff only after the death
of Ramjidas which took place on 07.08.1999, it was
husband of plaintiff namely Madan Mohan Sharma who
was receiving the rent and therefore Madan Mohan Sharma
would be landlord for the tenant as per Section 2 (b) of
Act of 1961. Once Madan Mohan Sharma became landlord,
then if a suit is filed by person who is neither natural
successor of Ramjidas nor a landlord, then in that
circumstance, the tenant can challenge the will allegedly
executed by Ramjidas in favour of plaintiff. Since the
plaintiff has based her claim on the basis of will and the
suit has been filed under Section 12 (1) (f) of the Act of
1961 also, therefore, the plaintiff is required to prove her
ownership and not just land lordship. Therefore, the tenant
has every right to challenge the derivative title of the
person filing the suit. In these circumstance, the
defendant/tenant is having right to challenge the will filed
by plaintiff because the will which has been filed by
plaintiff is required to be proved by her in order to fall
under the definition of owner as per Section 12 (1) (f) of
the Act of 1961.
40. Hon'ble Apex Court in Sheela and others versus firm
Prahlad Rai 2002 (2) JLJ 312 (SC) (para 11 to 18) --
arising out of State of Madhya Pradesh considered the
entire law on the question of granting decree on the ground
of disclaimer of title when the tenant challenges the
derivative title. Apex Court held that a tenant calling upon
landlord to prove his ownership or putting the landlord to
prove his title so as to protect his tenancy without this
owing his character of possession of tenant cannot be said
to be disclaimer of title. In the case at hand also, the
present respondent never disclaimed himself to be tenant
and has always admitted his tenancy and has only asked
the plaintiff to prove his derivative title in order to protect
his tenancy and therefore no ground under Section 12 (1)
(c) of the Act is made out.
41. In the case of Chandramohan Versus Sengottaiyan
(Dead) by LR's and others (2000) 1 SCC 451 (para 16 to
18)- the Hon'ble Apex Court held that the tenant is having
right to challenged the derivative title of landlord if the suit
is filed by the person who is not the natural successor of
the original owner. On challenging the derivative title it
cannot be held that there has been disclaimer of title and
no decree for disclaimer of title can be passed on such
challenged.
42. In the case of Bajranglal Verms Vs. Smt. Gyaso Bai
and others 2005 (1) JLJ 173 para 10 to 15 -- this Court
held that if a suit is filed by a person who is not the
successor of original owner and is claiming derivative
title then the tenant is having right to challenge the
derivative title of the plaintiff. Further, once the plaintiff
do not renounces his status as tenant, no decree under
Section 12 (1) (c) can be granted.
43. In the case of Manisha Lalwani Versus Dr. D.V.
Paul 2007 (2) MPLJ 52 para 31 & 32 -- this Court held
that when in the written statement the tenant admitted his
tenancy and a suit is filed by a person on the basis of will,
then the tenant is entitled to raise the question that the will
is suspicious and the plaintiff is required to prove the will.
In case such objection is taken, the same would not
amount to denial of title and consequently no decree under
Section 12 (1) (c) can be passed.
44. Thus, learned courts below have not erred in
considering the genuineness of Will as tenant can always
challenge derivative title of the plaintiff.
45. Further, question of law no.-2 framed by this court refers
to a contingency that since title of Ramjidas is not denied therefore
the will executed by Ramjidas cannot be denied. However, in view
of the facts of this case, such question has no relevance and is
meritless, because, even if the title of Ramjidas is admitted,the
natural successor of Ramjidas would have filed suit then in view of
the admission of title of Ramjidas the tenant could not have
challenged the title of successor of Ramjidas. However, in this case
the plaintiff is not the successor of Ramjidas but is claiming title
from Ramjidas on the strength of will. Therefore, the defendant is
having every right to challenge the derivative title of the plaintiff by
challenging the will.
SQL No.-6
46. This question of law revolves around the position when the
title of the plaintiff once admitted, then the same cannot be
challenged and if challenged the same would be contrary to Section
116 of Indian Evidence Act giving rise to disclaimer of title as a
ground envisaged under Section 12 (1) (c) of the Act of 1961.
However, this question of law is also not framed as per the facts of
this case. In the case at hand the defendant never admitted the title
of plaintiff, therefore there would be no estoppel operating against
the defendant. At no point of time the defendant admitted either
title or landlord ship of plaintiff and once there was no admission of
title, then no estoppel under Section 116 of Evidence Act would be
applicable. Therefore the cases of Mangat Ram and Another vs.
Sardar Meharban Singh and Ors. reported in (1987) 4 SCC 319,
Bismillah Be (dead) by legal representatives vs. Majeed Shah
reported in (2017) 2 SCC 274, Bhogadi Kannababu and Ors. vs.
Vuggina Pydamma and Ors. reported in (2006) 5 SCC 532, Tej
Bhan Madan vs. II Additional District Judge and Ors. reported in
(1988) 3 SCC 137 cited by the appellant do not give any benefit to
her case.
47. Learned counsel for the appellant cited the case law of Zehra
Bai vs. Jagmohan Arora reported in MPWN 2000 (2) 142 in
support of his contentions. However, in the facts and circumstances of
that case, his title is different from this case. In the case of Zehra Bai
(supra) tenant was paying rent to the landlord, therefore, it is held
that he cannot object land lordship and ownership of the landlord and
landlord need not produce his title deed. However, in this case, the
plaintiff has failed to prove that she has ever received the rent from
the tenant / defendant and relationship of the landlord and the tenant
has not been established, therefore, the appellant does not get any
benefit from this case.
48. Learned counsel for the appellant has also cited the case of
Dashrath Rao Kate vs. Brij Mohan Srivastava reported in (2010)
1 SCC 277. However, the facts and circumstances of this case is
totally different from the present case. As per the facts of the case of
Dashrath (supra) after inquiry by the Court under Order XXII Rule
5 of CPC, the will was found to be proved and the trial Court decreed
eviction against the respondent, thereafter, respondent tenant disputed
Will. In aforesaid case, it is held that question regarding Will was
gone into in detailed enquiry, proved by cogent evidence and
appellant's status was finally decided in the Order XXII Rule 5
proceedings, therefore, it was held that it can not be challenged.
However, in this case, the suit of the landlord appellant was dismissed
not only by the learned trial Court but also by the learned first
appellate Court. Therefore, the facts being different, this case also
does not give any benefit to the appellant.
49. Under Section 12 (1) (c) of Act of 1961 ground of disclaimer
of title is only made out on fulfilling three condition firstly the
defendant challenges the title of plaintiff after attornment of tenancy
in favour of plaintiff, secondly when the tenant renounces his
character as tenant and thirdly when the tenant sets up title of the
property in third person. In the case at hand none of these
conditions are fulfilled as there was no attornment of tenancy
between plaintiff and defendant, secondly as specifically pleaded by
the defendant that he is admitting himself to be the tenant of the
property and he did not renounced his character as tenant, thirdly
the tenant did not pleaded any third person to be owner of the
property, rather plaintiff admits after Ramjidas it is PW-3 Madan
Mohan who was landlord to whom defendant was paying the rent
who is entitled to succeed the property. Therefore, none of the
essentials of Section 12 (1) (c) of the Act of 1961 are made out
Under above circumstance the case of Mahendra Raghunathdas
Gupta vs. Vishvanath Bhikaji Mogul and Ors. reported in (1997)
5 SCC 329, Subhash Chandra vs. Mohammad Sharif and Ors do
not help the case of appellant.
50. Consequently the substantial questions of law no.-2 and 6 are
answered against the appellant.
Substantial Question of Law No.3
51. This suit is filed under provision of Section 12(1)(f)
of M.P. Accommodation Control Act. For ready reference and
convenience Section 12(1) (f) of the Act is reproduced herein below :-
"12. Restriction on eviction of tenants.
(1) Notwithstanding anything to the contrary contained in
any other law or contract, no suit shall be filed in any civil
Court against a tenant for his eviction from any
accommodation except on one or more of the following
grounds only, namely :
(a) to (e) xxxxxxxxxxxxxxxxxxxxxxxxxxx
(f) that the accommodation let for non-residential
purposes is required bonafide by the landlord for
the purpose of continuing or starting his business
or that of any of his major sons or unmarried
daughters if he is the owner thereof or for any
person for whose benefit the accommodation is
held and that the landlord or such person has no
other reasonably non-residential accommodation
of his own in his occupation in the city or town
concerned] "
52. The plain reading of the aforesaid provision of section
12(1) (f) of the Act indicates that even the landlord is
required to prove his title for seeking decree of eviction.
The perusal of impugned judgements reveal that learned
courts below while dealing with the question of ownership
have kept in mind the settled principle of law that in
eviction case the title is not required to be proved as strictly
as if they are title suit (para 17 of the judgment of the trial
court). In the case of Dayal Das (dead) through LRs Vs.
Rajendra Prasad Gautam 2012 (4) MPLJ 153 ( para 20 to
33 ) this Court held that if the tenant has not setup title of
the property in third person and when the tenant has not
disowned his character as tenant and has only challenged
the derivative title, no ground under Section 12 (1) (c) of
the Act would be made out. Further, the court held that for
getting decree of eviction under Section 12 (1) (f), only
owner can file a suit and no other person. In the present civil
suit which has been filed by the plaintiff for bonafide need under
section 12 (1)(f) of the Act, the plaintiff has to prove that she is the
owner of the disputed shop.
53. In this case, suit is filed not by the actual successor but by a
person who is deriving title on the basis of will and as discussed
above, the will has not been proved in accordance with law. In this
case the plaintiff was never the landlord of defendant, in fact either
Ramjidas who has been rent receipt or husband of plaintiff who has
received the rent after the death of Ramjidas in presence of plaintiff
would be considered to be landlord as per Section 2 (b) of Act of
1961. Therefore, the defendant had every right to challenge the title
of the person who is filing the suit since she was neither natural
successor of the owner, nor she was landlord. Thus the case of
Learned counsel for the appellant has cited the case of Kanaklata
Das and Ors. vs. Naba Kumar Das and Ors. reported in (2018) 2
SCC 352 does not support the case of the plaintiff.
54. Consequently, the SQL No.-3 is answered against the appellant.
SUBSTANTIAL QUESTION OF LAW NO.5:--
55. In this case the plaintiff in order to file the suit has placed on
record will Ex.P-1 allegedly executed by Ramjidas and further the
plaintiff herself has placed on record other documents in which
signature of Ramjidas are present. The learned courts below after due
appreciation and comparision found that there is a total mismatch in
the signature of Ramjidas on all the documents. It is settled in law that
court is an expert of expert and further the report given by the expert
are not binding on court. Therefore, learned trial court exercised its
discretion to match the signature of Ramjilal which cannot be
challenged at the second appellate stage. It is settled in law that the
propounder has to remove all the suspicious circumstance. The
defendant since inception, cross examined the plaintiff on the point of
mismatch of signature, it was plaintiffs duty to prove the signature of
Ramjidas on will Ex.P-1. Admittedly the plaintiff has not led any
evidence to prove such signature on the contrary, the plaintiff filed
various document which made the signature of Ramjidas suspicious.
Therefore, learned court below did not committed any illegality in
comparing the signature of Ramjidas on will and other admitted
signature of Ramjidas on the rent receipt. It was the plaintiff who
wants the Court to rely on the fact that on will Ex.P-1 signature of
Ramjidas is present. Therefore, in view of Section 101, 102 of Indian
Evidence Act the plaintiff should have sought expert report and once
the plaintiff has failed to do so the learned court below has not
committed any illegality in matching the signature on its own.
Therefore, the substantial question of law is answered in negative.
SUBSTANTIAL QUESTION OF LAW NO.7:--
56. A bare reading of this question of law clearly reflect that the
same has been framed under the mistaken belief that plaintiff has held
to be owner by the first appellate court and after holding plaintiff to
be owner of the property, the court below could not have dismissed
the suit of plaintiff under Section 12 (1) (f) of the Act of 1961.
Nowhere in the entire judgment of learned trial court or appellate
court there is a finding that the plaintiff is owner of the property as
per Section 12 (1) (f) of the Act of 1961. Thus this question of law is
not framed correctly and is nswered against the appellant.
57. The learned trial court while deciding the issue No. 6 held that
the suit is not maintainable on account of non-joinder of necessary
parties and that finding has attained finality. Under these
circumstances also the appellant is not entitled to get the decree of
eviction.
58. In view of the aforesaid discussions, the present second appeal
sans merits and is hereby dismissed.
(SUNITA YADAV)
JUDGE
Durgekar*
