Late Dulichand S/O Bhuralal Thru Lrs 1. ... vs Virendra
2024 Latest Caselaw 6176 MP

Madhya Pradesh High Court

Late Dulichand S/O Bhuralal Thru Lrs 1. ... vs Virendra on 29 February, 2024

Author: Anil Verma

Bench: Anil Verma

                                                            1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE ANIL VERMA
                                             ON THE 29 th OF FEBRUARY, 2024
                                             SECOND APPEAL No. 2577 of 2023

                           BETWEEN:-
                           1A.   LATE DULICHAND S/O BHURALAL THRU LRS
                                 GHANSHYAM S/O LATE DULICHAND, AGED
                                 ABOUT 63 YEARS, OCCUPATION: BUSINESS, R/O
                                 66, SHRADHANAND MARG, MAINROAD INDORE
                                 (MADHYA PRADESH)

                           1B.   LATE DULICHAND S/O BHURALAL THRU LRS
                                 SATYANARAYAN S/O LATE DULICHAND, AGED
                                 ABOUT 52 YEARS, OCCUPATION: BUSINESS, R/O
                                 66, SHRADHANAND MARG, MAINROAD INDORE
                                 (MADHYA PRADESH)

                                                                                       .....APPELLANTS
                           (SHRI MOEED ALI BOHRA - ADVOCATE)

                           AND
                           VIRENDRA S/O SHIVPRASAD, AGED ABOUT 73 YEARS,
                           OCCUPATION: AGRICULTURE, R/O 66, SHRADHANAND
                           MARG, MAINROAD, INDORE (MADHYA PRADESH)

                                                                                       .....RESPONDENT


                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                             ORDER

Record of both the Courts below have been received.

2. Heard on the question of admission.

3. The present second appeal has been filed by the appellants/defendants under Section 100 of CPC against the impugned judgment and decree dated 22/07/2023 passed by IX Additional District Judge, Indore (M.P.) in Civil

appeal No.2100011/2016 thereby affirming the judgment and decree dated 05/03/2015 passed by XXVI Civil Judge, Class-I, Indore (M.P.) in Civil Suit No.62-A/2014 filed by the respondent/plaintiff, whereby the suit for eviction and recovery of arrears of rent has been allowed and decree of eviction has been granted.

4. Brief facts of the case are that the respondent/plaintiff has filed a civil suit for eviction and recovery of arrears of rent under the provisions of Madhya Pradesh Accommodation Control Act, 1961 in respect of the suit property situated at House No.66, Shradhanand Marg, Indore. The appellant/defendant Late Dulichand was the tenant of the respondent/plaintiff and suit property was

let out for residential purpose @ Rs.800/- per month. The appellant has not paid rent since 01/04/1997 and also denied the title of respondent. The appellant is not using the suit property and has shifted to House No.72, Kalali Mohalla, Main Road, Indore. The plaintiff has bona fide need of this property for residence of his son Alok Bhatia.

5. The appellant/defendant filed his written statement before the trial Court and denied all the allegations and pleadings of the plaint by stating that the suit property is not of the ownership of the respondent/plaintiff and suit property is of the ownership of Sukhdevi Bai, who happens to be the sister-in- law of Late Shivprasad Hardia. The appellant is in possession of the suit property as a tenant for last more than 100 years. Earlier Late Shivprasad Hardia filed a suit for eviction against the appellant, which has been dismissed. The name of co-owners of the property were not included as party, therefore, suit is not maintainable due to non-joinder of necessary parties. Actual rent was Rs.4/- per month and respondent has at once without agreement arbitrarily raised rent

to Rs.800/- per month. Appellant has acquired title over the suit property through adverse possession and plaintiff has no bona fide need and they have alternate accommodation, which is suitable for their need. Suit was filed with an ulterior motive to raise the rent amount.

6. On the aforesaid pleadings, the trial Court has framed the issues and permitted both the parties to lead their evidence. The trial Court after recording the evidence and hearing both the parties, decreed the suit filed by the respondent/plaintiff. Then the appellant/defendant preferred a first appeal before the lower appellate Court, but the same has been dismissed by affirming the finding of the fact so recorded by the trial Court, therefore, the appellant/defendant has preferred this second appeal.

7. Learned counsel for the appellant/defendant contended that the judgments and decrees passed by the both the Courts below are illegal and not based upon the proper appreciation of the evidence. Both the Courts below have failed to consider oral as well as documentary evidence available on record. The trial Court has ignored the provision of M.P. Accommodation Control Act, 1961. Plaintiff has failed to prove that appellant has created any nuisance. No notice has been issued by the respondent for demand of arrears of rent and relationship of landlord and tenant are not established, therefore, the findings given by both the Courts below are erroneous, perverse and contrary

to the provisions of law. Respondent/plaintiff has failed to prove any legal ground for termination of tenancy of the appellant. Hence, he prays that appeal deserves to be admitted on the substantial questions of law, so proposed by the appellant.

8. I have gone through the impugned judgments and decrees passed by both the Courts below and perused the entire record with due care.

9. The first contention made by learned counsel for the appellant is that the relationship of landlord and tenant is not proved in the instant case. From perusal of the registered sale deed (Ex.-P/1) and relinquish deed (Ex.-P/2 and P/3), it appears that Sukhdevi Bai had sold out the suit premises to Dr. Shivprasad Hardia in the year 1975 and respondent/plaintiff Virendra is the son of Dr. Shivprasad Hardia, therefore, on the basis of the aforesaid document it is proved that father of the plaintiff has purchased the suit house through registered sale deed. The same fact is also proved by the statement of plaintiff Virendra (PW-1) and Raju (PW-2). Appellant/defendant Satyanarayan (DW-1) also admits in his cross-examination that Virendra Singh, Pratap Singh, Kantisingh, Sushila and Premsingh are the legal representatives of Dr. Shivprasad and after the death of Shivprasad they became the owner of suit house, therefore, accordingly the appellant/defendant admits the ownership of the respondent/plaintiff.

10. The appellants also claims title over the suit house on the basis of the adverse possession, but they did not produce any relevant evidence for their uninterrupted possession against the actual owner of the suit house for last 100 years. On the contrary, defendant/appellant Satyanarayan (DW-1) admits in his cross-examination that ancestors of the plaintiff earlier filed so many suits against the tenants and their ancestors. Copy of the plaints are Ex.-D/1 to D/3 and copy of written statement are Ex.-D/4 to D/6, therefore, the earlier rounds of litigation between the ancestors of both the parties regarding the suit house are sufficient to establish the fact that respondent and their forefather always remained in the suit house as a tenant. Rent receipts (Ex.-D/10 to D/35) were also proved by the plaintiff, which were issued in the name of earlier owner of

the suit land, therefore, appellant has failed to prove their title over the suit house on the aforesaid cogent evidence. The trial Court as well as lower appellate Court has rightly given concurrent finding of fact that appellants have failed to prove their possession over the suit house as owner on the basis of the adverse possession.

11. So far as the arrears of rent is concerned, although respondent/plaintiff has not given any valid notice under Section 12(1) of M.P. Accommodation Control Act to the appellant/defendant, but appellant/defendant Satyanarayan (DW-1) before the trial Court categorically admits in his deposition that he could not remember that when did he last pay the rent of suit premises. In paragraph No.13 of his deposition he admits that his father had not paid any rent to the previous owner Sukhdevi Bai. In para 16, he also admits that till date he did not pay rent to the any person in respect of the suit premises, therefore, on the basis of the admission of appellant Satyanarayan, it is proved that the appellant has failed to pay rent of the suit premises since 1997.

12. Co-ordinate Bench of this Court in the case of Sushila Shrivastava (Smt.) Vs. Nafees Ahmed Qureshi and Anr. reported in 2001 (1) JLJ 351 has held that rent cannot be made at any time. If the deposit is not made in accordance with the provision under Section 13(1) of the M. P. Accommodation Control Act, the delay in deposit cannot be condoned. Eviction cannot be escaped by tenant under Section 12(1)(a). This citation is fully applicable in the instant case.

13. The plaintiff's another ground for eviction is bona fide need of the suit premises. The respondent/plaintiff Virendra Singh (PW-1) categorically deposed in his statement that he has bona fide need of the suit premises for

residential purpose of his family and they have no alternate accommodation for the same purpose. Alok Hardia (PW-2) also supported the statement of respondent/plaintiff Virendra Singh. Appellant/defendant Satyanarayan (DW-1) also admits in his cross-examination that he had no knowledge that any alternate accommodation is available for the plaintiff for residential purpose or not. The appellant had not examined any other witness to prove the same, therefore, there is no reason to disbelieve the statement of respondent Virendra Singh.

14. In view of the aforesaid discussion, this court is of the considered opinion that the judgments and decrees passed by both the courts below are based upon due appreciating of oral as well as documentary evidence available on record. The findings recorded by both the Courts below are concurrent finding of fact.

15. Learned counsel for appellant has failed to show that how the findings of fact recorded by both the Courts below are illegal, perverse and based on no evidence. Thus, no substantial question of law arises for

consideration in present second appeal.

16. The Hon'ble Apex court in number of cases has held that in exercise of power under Section 100 of CPC, the Court can interfere with the findings of fact, only if same is shown to be perverse and based on no evidence.(See: Union of India Vs. Ibrahim Uddin reported in 2012(8) SCC 148)

17. Accordingly, the present second appeal being sans merit, is hereby dismissed at motion stage. No order as to cost.

Certified copy as per rules.

(ANIL VERMA)

JUDGE Tej