Madhya Pradesh High Court
M.F. Beg. vs Jagdish @Baban on 4 March, 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 4th OF MARCH, 2024
SECOND APPEAL No. 578 of 2003
BETWEEN:-
M.F. BEG ADVOCATE (DECEASED)
THROUGH
SAIYAD ABDUL HAMEED S/O AZIZULHAK, R/O -
GARDEN NO.63-65, SIMROL ROAD, KHAN COLONY,
MHOW, DISTRICT INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI A.S. KUTUMBALE, LEARNED SENIOR COUNSEL
WITH SHRI B. S. GANDHI - ADVOCATE)
AND
(1) JAGDISH PRASAD @ BABBAN (DECEASED)
THROUGH LRS:-
(a) SMT. REMLATA Wd/O JAGDISHPRASAD, AGED
ADULT, OCCUPPATION - HOUSEWIFE, R/O HOUSE
NO.79 (NEW NO.22), SIR SIREMAL BAFNA MARG,
INDORE (MADHYA PRADESH)
(b) ABHIJEET S/O JAGDISHPRASAD, AGED ADULT,
OCCUPATION - BUSINESS, R/O HOUSE NO.79 (NEW
NO.22), SIR SIREMAL BAFNA MARG, INDORE
(MADHYA PRADESH)
(c) KU. RUCHI D/O JAGDISHPRASAD, AGED ADULT,
OCCUPATION - BUSINESS, R/O HOUSE NO.79 (NEW
NO.22), SIR SIREMAL BAFNA MARG, INDORE
(MADHYA PRADESH)
(2) RAMESHWAR S/O KALICHARAN VERMA, AGED
ABOUT 51 YEARS, OCCUPATION - BUSINESS, R/O
HOUSE NO.79 (NEW NO.22), SIR SIREMAL BAFNA
MARG, INDORE (MADHYA PRADESH)
2
(3) SUKHDEV S/O KALICHARAN VERMA, AGED
ABOUT 49 YEARS, OCCUPATION - BUSINESS, R/O
HOUSE NO.79 (NEW NO.22), SIR SIREMAL BAFNA
MARG, INDORE (MADHYA PRADESH)
...RESPONDENTS
(SHRI PRAMOD C. NAIR - ADVOCATE FOR RESPONDENT
NO.1)
(NONE FOR THE OTHER RESPONDENTS)
-----------------------------------------------------------------------------------------
This appeal coming on for hearing this day, the court passed the
following:
JUDGMENT
1. This second appeal under Section 100 of the Code of Civil
Procedure, 1908 (in short "CPC") has been preferred by the
appellant/plaintiff against the impugned judgment and decree dated
8.4.2003 passed by the 1st Addl. District Judge, Indore (M.P.) in Civil
Appeal No.85/02, whereby the appeal has been allowed and the
judgment and decree dated 14.10.2000 passed by the Civil Judge Class-
2, Indore in Civil Suit No.30-A/99 has been set aside, whereby the suit
for eviction and recovery of arrears of rent has been decreed.
2. Brief facts of the case are that Shri Shivkumar Dwivedi was
appointed as receiver in respect of the suit property by the order of the
1st Addl. District Judge, Indore in Civil Suit No.51/53. The suit
premises has been given to Kalicharan on rent @ Rs.10/- per month. In
the year 1958 Kalicharan has been died and thereafter
respondents/defendants are in possession of the suit house as tenant, but
they did not pay any rent to the land owner since 15.6.1965 and the
defendants/respondents are also using the suit house for commercial
purpose and installed their cycle shop. Accordingly they have
encroached upon the suit house without permission of the land owner.
Defendants did not pay the rent amount despite demand notice sent by
the plaintiff.
3. Suit was contested by the defendants/respondents by submitting
that Bisni Bai, mother of the defendants, is the owner of the house in
question and after the death of Bisni Bai, defendants were became
owner of the house in question. Necessary parties are not impleaded in
the suit, therefore, the suit is not maintainable.
4. Learned trial court after framing the issues, recording evidence
and hearing both the parties, came to the conclusion that the plaintiff is
landlord of the suit house and defendants are their tenants, therefore, the
trial Court has decreed the suit under Section 12(1)(a) and 12(1)(c) of
the M.P. Accommodation Control Act. Being aggrieved by the
aforesaid judgment and decree, the First Appeal has been preferred by
the respondents/defendants, the same has been allowed by setting aside
the judgment and decree passed by the trial Court. Being aggrieved by
the same, appellant has preferred this second appeal before this Court.
5. Learned counsel for the appellant submits that the lower appellate
court has not appreciated the oral as well as the documentary evidence
available on record. Respondents did not send any reply to the notice
(Ex.P/4 & P/16), therefore, as per Section 10 of the Indian Contract Act
it will be considered as acquiescence. The trial court has rightly decreed
the suit. It is also argued that appellant has preferred two applications
under Order 41 Rule 27 of CPC (IA No.948/2015 & IA No.2618/2023)
and it is prayed that all these documents be taken on record and the
matter may be remanded to the first appellate court for deciding the
First Appeal afresh. In alternative, learned counsel for the appellant
prays that the impugned judgment and decree passed by the lower
appellate court be set aside and the judgment and decree passed by the
trial Court be restored.
6. Per contra, learned counsel for the respondents supported the
impugned judgment and decree passed by the first appellate court and
prayed for dismissal of the second appeal.
7. I have heard learned counsel for both the parties at length and also
perused the record of the courts below.
8. This appeal has been admitted for final hearing on the following
substantial question of law:-
"Has the first appellate court erred in holding that
the respondent had not been tenant disregarding their
admission in Ex.P/15, Panchnama, dated 13.2.77 before
institution of the suit?"
9. First of all it will be appropriate to consider the two applications
filed by the appellant under Order 41 Rule 27 of CPC i.e. IA
No.948/2015 & IA No.2618/2023. By the first application, the appellant
wants to file the certified copy of the tax assessment register of Indore
Municipal Corporation and through the second application he wants to
file the relevant document for appointment of receiver.
10. Order 41 Rule 27 of CPC provides as under:-
"Production of additional evidence in Appellate Court.
--(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or documentary,
in the Appellate Court. But if --
(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or
(b) the appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause, the
Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the
reason for its admission."
11. But in the instant case the appellant did not produce any proper
explanation that why these documents of tax assessment and
appointment of receiver were not produced before the trial Court and
first appellate court in exercise of due diligence. These documents may
be available at the stage of filing of the civil suit before the trial court
and during the pendency of the first appeal also, but the appellant did
not show any sufficient cause for non filing of these documents before
the courts below. It is noteworthy that in the second appeal High Court
cannot admit additional documents for the purpose of going into the
question of facts. These documents were filed after delay of 20 to 25
years. There was ample opportunity to produce these documents before
the trial Court, but the same was not filed by the plaintiff before the trial
Court and no satisfactory explanation is given for their non production
at the earlier stage. Apart from the above, these documents are not
primary proof of landlord and tenant relationship amongst the parties.
12. In view of the aforesaid, this Court is of the considered opinion
that both the applications under Order 41 Rule 27 of CPC not appears to
be bonafide and there is no sufficient cause for acceptance of these
additional evidence. Hence, both these applications (IA No.948/2015 &
IA No.2618/2023) are dismissed.
13. So far as the merits of the second appeal is concerned, plaintiff
has filed only a document (Ex.P/15) regarding the title over the house in
question, but Ex.P/15 is only a Panchnama, which does not confer any
title or status of landlord in favour of the plaintiff/appellant. It cannot be
considered as admission of the defendants as tenant in the suit premises.
Although defendants also claimed over the suit premises on the basis of
the document Ex.D/1, which is allegedly an agreement executed in
favour of Bisni Bai who happens to be mother of the defendants, but it
is not a registered sale deed. Therefore, no title is conferred on the basis
of mere an agreement to sell (Ex.D/1). Ex.D/16 & D/17 are only notices
and they cannot be considered as a document of title. Accordingly
defendants also failed to prove their title and ownership over the suit
premises. Plaintiff/appellant failed to produce any rent receipt or any
other relevant document regarding the ownership of the suit premises.
Therefore, landlord-tenant relationship between the appellant and the
respondents has been rightly disbelieved by the learned lower appellate
court.
14. In the light of the aforesaid oral and documentary evidence
available on record, this Court is of the considered view that the
judgment and decree passed by the lower appellate court is well
reasoned and based upon due consideration of oral as well as the
documentary evidence. Learned counsel for the appellant has failed to
show that how the findings of fact recorded by the court below are
illegal, perverse and based upon no evidence. Thus, the question of law
formulated is answered against the appellant and in favour of the
respondents.
15. Accordingly, this second appeal is dismissed. No order as to the
costs.
C.C. as per rules.
(ANIL VERMA)
JUDGE
Trilok/- TRILOK SINGH SAVNER
2024.03.07 10:59:29 +05'30'
