Madhya Pradesh High Court
Manohar Das Sharma vs Akhilesh Sharma on 5 February, 2024
1
SA no.1765/2022
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. 1765 of 2022
BETWEEN:-
MANOHAR DAS SHARMA S/O LATE SHRI
MOTIDAS SHARMA, AGED ABOUT 67 YEARS, R/O
MAHAMAYA WARD BHAIROGANJ SEONI TEHSIL
AND DISTRICT SEONI (MADHYA PRADESH)
.....APPELLANT
(BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)
AND
1. AKHILESH SHARMA S/O LATE SHRI
UMADAS SHARMA, AGED ABOUT 42
YEARS, R/O MAHAMAYA WARD
BHAIROGANJ SEONI TEHSIL AND
DISTRIOCT SEONI (MADHYA PRADESH)
2. SMT. ABHA TIWARI W/O LATE SHRI
DEVESH TIWARI, AGED ABOUT 46 YEARS,
R/O MAHAMAYA WARD BHAIROGANJ
SEONI TEHSIL AND DISTRICT SEONI
(MADHYA PRADESH)
.....RESPONDENTS
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 respondents (hereinafter referred to as
"defendants") being aggrieved by the impugned judgment and decree
dated 4/7/2022 passed by the Ist District Judge, Seoni, Distt. Seoni in
RCA No. 300044/2015 arising out of the Judgment and decree dated
16/6/2015 passed by Ist Civil Judge Class- I, Seoni, Distt. Seoni in Civil
Suit No. 20-A/2015.
3. It is submitted by the learned counsel for the appellant that the
appellant filed a suit seeking the relief of eviction and arrears of rent. The
suit accommodation has fallen into the share of appellant in a family
partition and respondents being children of appellant's brother were
inducted as tenant in suit accommodation for a monthly rent of Rs.5000/-.
Defendants no.1 and 2 did not file any return and were proceeded against
exparty. The trial Court as well as the first appellate Court was erred in
not proving the suit and the case of the plaintiff while plaintiff/appellant
has proved his case on the basis of documentary as well as oral evidence.
The findings of both the Courts below are perverse and liable to be set-
aside.
4. Heard learned counsel for the appellant and perused the record.
5. So far as, the title over the suit accommodation is concerned,
the plaintiff/appellant has filed patta of the suit accommodation which is
exhibit P/1. This document with regard to the entire area of 1179 sq.ft.
but it is the case of plaintiff that in the year 1992, a partition has taken
place between him and his brother Umadas. The suit accommodation has
been obtained by him as his share. There is a document of Bantwaranama
appended with the patta but that has not been separately exhibited and
nor any signature on this document has been got proved by the plaintiff.
A map is also appended with this bantwararnama showing the part of the
accommodation which is obtained by Umadas and Manohardas in their
respective share. But that has also not been got proved by the plaintiff.
The document of partition deed and that naksha appended thereto were
the important document. But that have not been exhibited and proved by
the plaintiff and no plausible reason for such omission has been shown on
behalf of the plaintiff.
6. No doubt the plaintiff is not required to prove ownership over
the suit accommodation in case of eviction. It is held by this Court in case
of Sushila Devi vs. Khalil Ahmad reported in 2011(3) MPLJ 526 and
Ram Vishal vs. Dwarka Prasad Jaiswal reported in 2010(1) MPLJ 214
that title of the landlord does not require strict investigation and question
of title cannot be gone into like a regular civil suit based on the title in
case of eviction. I am in agreement with the law laid down by this Court
in the aforesaid cases but it was incumbent on the plaintiff to establish the
relationship of landlord and tenant between him and
defendants/respondents.
7. In this regard, it is averred by the plaintiff that in May 2006
onwards, the suit accommodation was given to the defendants who were
happened to be nephew and niece of him on the rent of Rs.500/- p.m. and
that tenancy was oral and starting point is the first date of English
calendar. The tenancy was started from May, 2006. The tenancy was
oral and the rent was being paid by the defendants. However, since
November 2012 defendants without the permission of plaintiff carried
additional construction in the suit accommodation and stop paying rent.
But this fact was to be established by the plaintiff by cogent and reliable
evidence. In this regard, however only oral evidence has been adduced
by the plaintiff whereas documentary evidence in the form of payment of
rent might be available with the plaintiff and that would have been the
best evidence available to plaintiff. Whatever rent has been paid by the
defendants that can be proved by adducing the receipt of the rent or if the
rent is deposited in the bank account of the plaintiff then a bank pass
book may be submitted to prove the fact. Therefore, in absence of such
evidence, the landlord and tenant relationship between the plaintiff and
defendants no.1 and 2 cannot be said to be established. The findings of
both the courts below in this regard do not call interference.
8. It is submitted by the learned counsel for the appellant that the
plaintiff has filed the suit for eviction on the ground of Section 12(1)(a),
12(1)(h) and 12(1)(m) of the MP Accommodation Control Act, 1961 but
so far as the ground of Section (a) is concerned, no notice of arrears of
rent as mandated in the section was given by plaintiff to the defendants
for paying the arrears of rent and so far as the ground of Section 12(1)(m)
is concerned, it was incumbent on the plaintiff to establish that what
materially altered by the defendants in suit accommodation which is
detrimental to the interest of landlords and is likely to diminish its value
substantially. It reveals from the evidence that the suit accommodation is
already in dilapidated condition. Material alteration carried out by the
defendants is not established satisfactorily from the evidence of plaintiff
witnesses.
9. So far as the ground stated in Section 12(1)(h) is concerned, it
was incumbent on the plaintiff to prove the bonafide need for the purpose
of building/rebuilding etc. which cannot be carried out without the
accommodation being vacated. However, no satisfactory pleading in this
regard has been incorporated in the plaint and no sufficient and cogent
evidence in this regard adduced by the plaintiff. Therefore, the grounds
for eviction as aforesaid are not established by the cogent and reliable
evidence.
10. In case of Prakash Pahuja vs. Devendra Kumar Jain
reported in 2018(3) MPLJ 68, it is laid down that landlord is not required
to prove his title on the basis of the principles applicable in the suit for
declaration of the title and when the tenant categorically admitted that he
paid the rent to the plaintiff since beginning and he received receipts of
the rent from the plaintiff and he is still treating plaintiff as landlord. The
said admission of the plaintiff satisfied the determinative factor of the
land lordship. However, here in this case, there is no admission on behalf
of the defendants. The defendants were not appeared in the trial court and
no evidence has been adduced on their behalf. But it was incumbent on
the plaintiff to prove his case with cogent, reliable and best available
evidence on the principle of preponderance of probability. The plaintiff
cannot take the benefit of weaknesses of defendants. In this case, there is
no admission on behalf of the defendants that they are treating the
plaintiff as landlord nor any admission exists with regard to the payment
of rent and taking receipts of such rent from the plaintiff. Therefore, the
facts are distinguishable in this case.
11. In the light of the aforesaid discussion, no perverse finding was
given either by the trial Court or 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 4/7/2022
passed by the Ist District Judge, Seoni, Distt. Seoni in RCA No.
300044/2015 and the Judgment and decree dated 16/6/2015 passed by Ist
Civil Judge Class- I, Seoni, Distt. Seoni in Civil Suit No. 20-A/2015are
hereby affirmed.
13. The appeal fails and is hereby dismissed in limine.
(RAJENDRA KUMAR VANI)
JUDGE
m/-
