Madhya Pradesh High Court
Swami Prasad Arjariya (Deceased) ... vs Ramji Arjariya on 7 May, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 7 th OF MAY, 2024
SECOND APPEAL No. 793 of 2017
BETWEEN:-
SWAMI PRASAD ARJARIYA S/O LATE RAMKRIPAL
(DECEASED)
THROUGH LEGAL REPRESENTATIVE:-
SHRIRAM ARJARIYA S/O SWAMI PRASAD ARJARIYA,
AGED ABOUT 54 YEARS, R/O CHOWK BAZAR,
CHHATARPUR TAHSIL AND DISTRICT CHHATARPUR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI SIDDHARTH GULATEE-ADVOCATE)
AND
1. RAMJI ARJARIYA S/O LATE RAMKRIPAL
ARJARIYA, AGED ABOUT 65 YEARS, R/O MAHAL
ROAD, NEAR SWARUP GAS AGENCY,
CHHATARPUR, TAHSIL AND DISTRICT
CHHATARPUR (MADHYA PRADESH)
2. SMT MAYA PATHAK W/O KAILASH PATHAK, D/O
LATE SWAMI PRASAD ARJARIYA AGED ABOUT 48
YEARS, R/O RAI COLONY KATNI DISTRICT KATNI
(MADHYA PRADESH)
.....RESPONDENTS
(NONE)
This appeal coming on for admission this day, th e court passed the
following:
JUDGMENT
Appellant original plaintiff has preferred this appeal under Section 100 of
the Civil Procedure Code being aggrieved by the judgment and decree dated
06.03.2017 passed by IIIrd Additional District Judge, Chhatarpur in Regular
Civil Appeal No.113-A/2016 affirming the judgment and decree dated
28.04.2010 passed by IIIr d Civil Judge, Class-I, Chhatarpur in Civil Suit No.8-
A/2009 whereby the suit of the plaintiff filed against the respondents/defendants
was dismissed on the ground that suit is collusive and has been filed by the
parties to nullify the judgment and decree dated 01.03.2001 passed by IIIrd
Additional District Judge, Chhatarpur vide judgment Ex.D/4 whereby sale-deed
was declared null and void. It was held that plaintiff is not the owner of the
property and relationship of tenant and landlord could not be established.
2. It is undisputed that originally suit was filed by one Swami Prasad
Arjariya against his real brother Ramji Arjariya but during the pendency of the
suit before the trial Court, Swami Prasad Arjariya had died and his legal heirs
present appellant was brought on record. Original plaintiff filed suit for eviction
of the respondent No.1 brother on the ground that he had let out the disputed
shop and its upper story which was purchased from Laxmi Prasad Pateriya
through sale-deed dated 07.05.1977. On 04.02.1994, a rent deed was executed
and shop was let out to respondents at monthly rent of Rs.800/-. Respondent
paid rent till July 1995 but since 1995 he had not paid the rent. Suit was also
filed on the ground that his son Ramji Arjariya is an adult and unemployed and
wanted to start his medical store and general store in that disputed shop.
Therefore, he bona fidely need the shop for his own use. The shop is suitable
for the business of medial store and general store. He had no other suitable
shops except disputed shop within the municipal limits of Chhatarpur city. As
such, eviction decree was sought under Section 12(1)(a) and 12(1)(f) of the
M.P. Accommodation Control Act, 1961.
3. The tenant/present respondent pleaded that he and plaintiff are real
brothers and disputed shop is their ancestral property and he is in exclusive
possession of the shop. Plaintiff had got executed a forged sale-deed on
07.05.1977 from Laxmi Prasad Pateriya which has been declared null and void
by the Court vide judgment dated 01.03.2001 Ex.D/4 passed in Civil Suit No.
15A/85 (State of M.P. Vs. Bhawani Singh and others) whereby sale-deed has
been declared null and void. He had obtained the disputed shop as his share in
family partition on 31.03.75. Thus, he has prayed that plaintiff is not entitled for
any relief.
4. Learned trial Court framed seven issues before the Court. Shriram
Arjariya (PW-1) and Durga Prasad Asati (PW-2) were examined before the trial
Court while defendant Ramji examined himself as DW-1. The trial Court after
appreciation of the evidence found that plaintiff is not owner of the disputed
shop. Therefore, he had no right to let out the disputed shop. It was further held
that the disputed shop belong to State of Madhya Pradesh and a collusive suit
has been filed by the plaintiff and defendant who are real brothers to nullify the
judgment and decree dated 01.03.2001 passed by IIIrd Additional District
Judge, Chhatarpur in Civil Suit No.15A/85 (State of M.P. Vs. Bhawani Singh
and others) in which plaintiff's and defendant's father was one of the party and
in that suit it was decided that disputed property belong to Government of
Madhya Pradesh. It was further held that plaintiff has not been successful to
prove the relationship of tenant and landlord. As plaintiff is not owner of the
property he is not entitled to get the shop vacated on the ground of bona fide
requirement of his unemployed son. Therefore, trial Court dismissed the suit for
eviction filed under Section 12(1)(a) and 12(1)(f) of the M.P. Accommodation
Control Act. The first appeal filed by the present appellant remain unsuccessful
and has been dismissed by the IIIrd Additional District Judge by the impugned
judgment.
5. Before the trial Court, in cross-examination Shriram (PW-1) admitted
that State of M.P. had filed a suit against his father Swami Prasad Arjariya for
eviction of the disputed shop. He admitted that suit was decided in the life time
of his father and he had lost the suit. In that judgment, it was held that the
disputed shop belong to Government of M.P. It was admitted by him that
eviction decree was passed against him. He admitted that sale-deed of the
disputed shop was executed in favour of his father on 07.05.1977 by Laxmi
Prasad Pateriya. He further admitted that aforesaid sale-deed was declared null
and void by judgment dated 01.03.2001 vide Ex.D/4 judgment passed by IIIrd
Additional District Judge, Chhatarpur in Civil Suit No.15A/85 (State of M.P.
Vs. Bhawani Singh and others). Thus, from the evidence of the plaintiff, trial
Court concluded that he and his father were not the owner of the disputed shop
and in a suit filed by the Government/State of M.P. eviction decree was passed
against them. Learned trial Court after appreciating the evidence came to the
conclusion that plaintiff is neither owner of the disputed shop nor there is any
relationship of landlord and tenant between him and his defendant brother.
Thus, learned trial Court dismissed the suit and appeal filed against the trial
Court judgment was also dismissed.
6. On perusal of the findings recorded by the trial Court and Appellate
Court, it is apparent that there are concurrent findings of fact that plaintiff is
neither the owner of the disputed shop nor there is any relation of the landlord
and tenant between him and his defendant brother. There is also concurrent
finding of fact that sale-deed executed in favour of the father of the plaintiff and
respondent in 1977 has already been declared null and void by IIIrd Additional
District Judge, Chhatarpur vide judgment Ex.D/4. From the admissions of
plaintiff, his witness and defendant, it was clear that plaintiff/landlord was not
owner of the disputed shop and a collusive suit was filed by him in collusion
with his brother that he is tenant. As appellant was not the owner of the
disputed shop he had no right to file suit in Court against his
respondent/brother.
7. It is settled position of law that judgment and decree passed by the trial
Court and Appellate Court when they are based on appreciation of cogent
evidence need not be disturbed unless findings are perverse or contrary to the
law. The trial Court and I st Appellate Court on appreciation of evidence
concurrently held that appellant plaintiff is not the owner of the suit shop and he
has not been able to establish his relationship of landlord and tenant in relation
to suit shop. These findings are supported by the admissions made by the
plaintiff in his evidence and documentary evidence on record. Concurrent
findings of fact cannot be upset by High Court unless findings so recorded by
trial Court and Appellate Court are shown to be perverse.
8. It is settled position of law that in exercise of jurisdiction under
Section 100 of the Civil Procedure Code, concurrent findings of fact cannot be
upset by High Court unless findings so recorded are perverse. As the findings
recorded by two Courts are based on oral and documentary evidence therefore,
it is not warranted on the part of this Court to interfere with the concurrent
findings of fact as same cannot be interfered in Second Appeal in exercise of its
jurisdiction under Section 100 of the Code of Civil Procedure. A Second
Appeal can only be entertained if substantial questions of law arises. In this
case, no substantial question of law has been framed. Therefore, I am of the
view that no interference is required in absence of any substantial question of
law.
9. Consequently, this appeal being devoid of any merit deserves to be
and is hereby dismissed in limine. There shall be no order as to costs.
10. Trial Court record along with copy of judgment be sent down to the
Court concerned through Principal District Judge, Chhatarpur.
(DINESH KUMAR PALIWAL)
JUDGE
b
