Madhya Pradesh High Court
Smt. Manju Patel vs Smt. Aarti Kashyap on 5 February, 2024
1
S.A.No.1007/2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 5th OF FEBRUARY, 2024
SECOND APPEAL No. 1007 of 2017
BETWEEN:-
SMT. MANJU PATEL W/O LATE LAKHANLAL
PATEL, AGED ABOUT 42 YEARS, R/O SHANKAR
WARD, TEHSIL AND DISTT. NARSINGPUR
(MADHYA PRADESH)
.....APPELLANT
(BY KU. NEELAM GOEL - ADVOCATE)
AND
SMT. AARTI KASHYAP W/O SHRI SUNIL
KASHYAP, AGED ABOUT 48 YEARS, R/O
SHANKAR WARD NARSINGHPUR TEHSIL AND
DIST. NARSINGHPUR (MADHYA PRADESH)
.....RESPONDENT
(NONE )
This appeal coming on for admission this day, the court passed the
following:
JUDGEMENT
Heard on the question of admission.
2. This Second appeal under Section 100 of Civil Procedure Code (for
brevity, CPC) has been filed by the appellant (hereinafter referred to as
"plaintiff") against the respondent (hereinafter referred to as "defendant")
being aggrieved by the impugned judgment and decree dated 27/6/2017
passed by the Ist Additional District Judge, Narsinghpur in Civil Appeal
No. 11/2016 arising out the Judgment and decree dated 28/8/2015 passed
by IIIrd Civil Judge, Class - II, Narsinghpur in Civil Suit No. 41-A/2013.
3. It is submitted by the learned counsel for the appellant that the
learned trial Court had apparently erred in not deciding the issue No.l in
favour of the appellant. The learned first appellate Court had given
finding accepting the appellant as the landlord of the suit property in para
14 & 15 of the impugned judgment. Both the courts below had apparently
erred in dismissing the eviction suit and appeal of the appellant on the
ground that the appellant had failed to prove the respondent as her tenant.
On the other hand, the court below had also dismissed the counter claim
and counter appeal of the respondent on the ground that the respondent
had failed to prove the so called agreement dated 25/2/2005.Since both
the courts below have reached to the conclusion that the respondent
neither a tenant of the appellant nor the purchaser of the house, then on
what basis she is residing in the suit premise. It is also submitted by the
learned counsel of appellant that defendant Aarti Kashyap in the last line
of her cross examination in para 21 admitted the fact that she is presently
paying the house rent to the appellant. It is also submitted that the
agreement dated 25/2/2005 has not been executed till date and limitation
provided for relief in that regard is under Article 54 but that has not been
availed after lapse of 3 years.
4. The appellant has filed the suit on the ground mentioned in
section 12(1)(a) of M.P. Accommodation Control Act on the basis that
defendant has not paid the rent of the suit premise since August, 2010. It
is pleaded by the plaintiff that the defendant since 2005 is the tenant of
the plaintiff on the rent of Rs.500/- per month and since April, 2009 the
rent was increased upto Rs.900/-. Upto July 2010 defendant has paid the
amount of rent, but thereafter, she didn't paid the amount of rent. In the
eviction suit, it is not needed atall to prove the ownership of the suit
premise, but it is incumbent on the plaintiff to prove the relation-ship of
landlord and tenant between them. In this regard, plaintiff has filed
various documents including the relevant papers of Municipal
Corporation record. In para 15 of the impugned judgment, the learned
first appellate court has rightly concluded that the plaintiff is the landlord
of suit premise as per the evidence adduced in this case.
5. The relationship of the landlord and tenant was to be
established by the plaintiff and it is trite law that plaintiff has to prove its
case on his own on the basis of cogent and reliable evidence. The plaintiff
cannot take the benefit of weaknesses of the defendant. Here in this case,
plaintiff except oral testimony, has not filed any documentary evidence
which could conveniently be filed on his behalf. Since as per the
averment from the plaintiff, the defendant since June 2005 has paid the
rent of the suit premise until July 2010 then receipt of such rent or any
other documentary proof of receipt of such rent could have been filed on
behalf of the plaintiff. No details have been given by the plaintiff
witnesses in their cross examination regarding such payment by the
defendant. Apart from these, it is pertinent to mention that no notice on
behalf of the plaintiff was given to the defendant for non-payment of rent.
When the notice was given by the defendant for execution of sale deed,
even then, it is not stated in the reply sent by the plaintiff that the
defendant is her tenant since 2005 in the suit premise. This aspect is
clearly discussed by first appellate court in para 20 to 23 of the impugned
judgment. No cogent and reliable evidence in that regard has been
adduced by the plaintiff to prove the relationship of landlord and tenant
between her and defendant.
6. So far as the submission of the learned counsel of the appellant
regarding para 21 of cross-examination of defendant Aarti is concerned,
the sentence which is mentioned in para 21 in last line is as such " ;g
dguk xyr gS fd eSa eatw ds edku dk fdjk;k vnk ugha dj jgh gwa vkSj gM+ius dh fQjkd
esa gwaA "
7. This sentence does not give inference that it was admitted by the
defendant herself that she was paying the rent of the suit premise but
when this sentence read as a whole then it reflects that the entire sentence
has been denied by defendant that she is trying to illegally take the suit
premises in her possession by not paying the rent. The sentence cannot be
interpreted in admission of defendant that she admitted thereby the
tenancy of plaintiff. Moreover, a sentence in isolation cannot be read, the
entire statement is to be read as a whole to deduce the essence of the
statement.
8. It is settled law that the plaintiff has to prove his case on his
own on the basis of cogent and reliable evidence, he cannot avail the
benefit of weaknesses of defendant. More so, the perusal of para 28 and
29 of the first appellate Court transpire that the counter claim/cross
appeal has been rejected on the ground that the all LRs of the deceased
Lakhan Lal were not made party to it, therefore, it was not maintainable.
9. It is evident from the evidence on record that the defendant is
residing in the suit premise on the basis of agreement dated 25/2/2005.
Whether respondent is entitled to get benefit of such agreement or not, is
not considerable in this case. But on the foregoing discussion and having
regard to the evidence in toto, it is unambiguous that plaintiff has utterly
failed to prove its case and failed to prove the relationship of landlord and
tenant between her and defendant. Therefore, the findings of both the
Courts below did not call interference.
10. So far as, the IA No.3184/2020 under Section 151 of CPC filed
on behalf of the appellant is concerned, whereby the appellant has
requested to direct the respondent to remove electricity meter and further
restrain her for making any nuisance in the suit premise and causing
harassment to appellant. Such relief cannot be granted in favour of the
appellant on the application as appellant/plaintiff has failed to prove its
case and no such relief can be granted in favour of the appellant for the
first time in second appeal.
11. In the light of the aforesaid discussion, no perverse finding was
given neither by the trial Court nor by the first appellate Court and both
the Courts did not commit any illegality. Thus, no substantial question of
law arises in this case. Learned Courts below neither ignored any material
fact nor considered any inadmissible evidence and, thus, the concurrent
findings of the Courts below are not liable to be interfered with.
12. In the result, the impugned judgment and decree dated
27/6/2017 passed by the Ist Additional District Judge, Narsinghpur in
Civil Appeal No. 11/2016 and the Judgment and decree dated 28/8/2015
passed by IIIrd Civil Judge, Class - II, Narsinghpur in Civil Suit No. 41-
A/2013 are hereby affirmed and consequently, the second appeal is
dismissed in limine as well as the IA No.3184/2020, under Section 151 of
the CPC, is also dismissed.
(RAJENDRA KUMAR VANI)
JUDGE
m/-
