Madhya Pradesh High Court
Mohd.Aarif & Ors vs The Corona Comp.Ltd. & Anr on 30 January, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 F.A. No. 305/2004 & F.A. No. 383/2004
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 30th OF JANUARY, 2025
FIRST APPEAL NO.305 OF 2004
THE CARONA CO. LTD. AND OTHERS
Versus
MOHD. AARIF AND OTHERS
Appearance:
Shri Mohd. Aadil Usmani, Advocate for appellants.
Shri Vijay Shukla, Advocate for respondents.
..............................................................................................................................................................
FIRST APPEAL NO. 383 OF 2004
MOHD. AARIF AND OTHERS
Versus
THE CARONA CO. LTD. AND OTHERS
Appearance:
Shri Vijay Shukla, Advocate for appellants.
Shri Mohd. Aadil Usmani, Advocate for respondents.
..............................................................................................................................................................
JUDGMENT
As both the appeals have arisen out of common judgment and
decree, therefore, are being decided by this common judgment. However,
facts have been taken from First Appeal no. 305/2004.
2. First Appeal no. 305/2004 has been filed by the appellants/
defendants/tenants challenging the judgment and decree dtd.22.04.2004
passed by District Judge, Sagar in Civil Suit No. 40-A/98 whereby trial
Court decreed respondents/plaintiffs' civil suit for eviction on the grounds
of denial of title and bonafide requirement of business available under
Section 12(1)(c) & (f) of the M.P. Accommodation Control Act, 1961 (in
short "the Act") which was filed on the grounds under Section
12(1)(a),(c) & (f) of the Act.
3. Whereas F.A. No.383/2004 has been preferred by the
respondents/plaintiffs in respect of part of the judgment and decree
whereby refusing decree of arrears of rent and mesne profits, however in
the light of decision of F.A. No.305/2004 pronounced today, learned
counsel for the plaintiffs after arguing for some time, does not want to
press F.A. No.383/2004, therefore, the same is dismissed as withdrawn.
4. Facts in short are that the respondents/plaintiffs instituted a suit on
15.05.1998 for eviction with the averments that rented premises/shop in
question admeasuring 645 sq.ft. was given by its owner and landlord
Abdul Ajij to the defendants on 06.12.1987 on rent of Rs.1,690/- p.m..
The shop is situated in the building known as Roshan Manjil. It is alleged
that on 28.05.1987 Abdul Ajij had executed a registered Will in favour of
plaintiffs and after death of Abdul Ajij on 06.12.1987, the plaintiffs
became owner and landlord of the shop in question and got their names
mutated in municipal record on 22.04.1994. After death of Abdul Ajij, the
defendants started paying rent to the plaintiffs and lastly paid rent up to
March, 1995 to the plaintiffs, but due to filing of civil suit by uncle of the
plaintiffs namely Abdul Gaffar, for cancellation of Will dtd.28.05.1987,
the defendants stopped paying rent to the plaintiffs, however, that suit has
already been decided in favour of the plaintiffs. It is also alleged that the
defendants have not paid rent after April, 1995 despite making demand
and termination of tenancy by issuing notice dtd.03.02.1997 (Ex.P/4), but
the defendants neither paid rent nor vacated the shop. It is alleged that the
plaintiffs have become major and want to do business in the shop and for
that purpose there is no alternative accommodation available with the
plaintiffs in the township of Sagar. It is also alleged that the defendants
have denied title of the plaintiffs, therefore, they are entitled for decree of
eviction. On inter alia allegations, the suit was filed.
5. The defendants appeared and filed written statement denying the
plaint allegations. It is clearly admitted by the defendants that they were
inducted as tenant by Abdul Ajij, whose wife was Rasulan Bi and Liyaqat
Hussain and Abdul Gaffar are sons. The plaintiffs are sons of Liyaqat
Hussain i.e. grandsons of Abdul Ajij and Rasulan Bi. It is also admitted
by the defendants that after death of Abdul Ajij, they paid rent to Rasulan
Bi. In additional pleas, it is contended that although judgment and decree
dtd.19.02.1997 (Ex.P/7) has been passed in civil suit no. 11-A/97, but
against that civil appeal is already pending in High Court. As such at the
most, on the basis of Will dtd.28.05.1987 the plaintiffs can be said to be
co-sharers of 1/3 share, on the basis of which the plaintiffs have in
collusion with the municipal officers, also got mutated their names in the
municipal record. Admitting relationship of landlord and tenant with
Abdul Ajij and Rasulan Bi, the defendants denied title of the plaintiffs
and contended that the plaintiffs are not in need of the rented shop for
their business and there is sufficient alternative accommodation available
with the plaintiffs and their father. On inter alia contentions, the suit was
prayed to be dismissed.
6. On the basis of pleadings of parties, trial Court framed as many as
9 issues and recorded evidence of parties. In support of their case, the
plaintiffs examined Shishu Sharma (PW/1), Hari Narayan Shrivastava
(PW/2) (who are employees of municipal corporation), Mohd. Aarif
(PW/3), Liyaqat Hussain (PW/4), Akbar Ali (PW/5) and produced
documentary evidence (Ex.P/1 to P/7). Similarly the defendants examined
Mohd. Naushad Alam (DW/1), Mohd. Iliyas (DW/2) and Abdul Gaffar
(DW/3) and produced documentary evidence (Ex. D/1 to D/24).
7. Upon due consideration of the material available on record, trial
Court vide impugned judgment and decree held that the plaintiffs are
owner and landlord of the rented shop and there is relationship of
landlord and tenant amongst the parties. It is held that the defendants
have not committed any default in making payment of rent, however, in
the light of averments made in paragraphs 6, 8, 9 & 17 of written
statement, held that the defendants have denied title of the plaintiffs and
that the plaintiffs are in bonafide need of the suit shop for starting
business and there is no other alternative accommodation available with
the plaintiffs, resultantly, decreed the suit for eviction on the grounds
available under Section 12(1)(c) & (f) of the Act.
8. Learned counsel for the appellants/defendants submits that
although the defendants have admitted relationship of landlord and tenant
with Abdul Ajij and Rasulan Bi and also paid rent to them, but in absence
of proof of Will allegedly executed by Abdul Ajij in favour of the
plaintiffs on 28.05.1987, it cannot be said that the plaintiffs are
owner/landlord and that the defendants have denied title of the plaintiffs.
He submits that the plaintiffs have not even placed the Will on record,
therefore, basic requirement of claiming decree of eviction under Section
12(1)(f) of the Act is not fulfilled. He submits that even in the light of
judgment and decree dtd.19.02.1998 (Ex.P/7), it cannot be said that
issue/question of genuineness of the Will has become final because
against the judgment and decree (Ex.P/7), first appeal is still pending
before the High Court filed by Abdul Gaffar. In support of his
submissions learned counsel for the appellants/defendants placed reliance
on a coordinate Bench decision of this Court in the case of Jyoti Sharma
(Smt.) v. Vishnu Goyal reported in 2024(4) JLJ 205. As such, the
defendants prayed for allowing the first appeal.
9. Learned counsel appearing for the respondents/plaintiffs supports
the impugned judgment and decree passed by trial Court. He submits that
in the light of judgment and decree dtd.19.02.1998 (Ex.P/7) passed by
District Judge, Sagar coupled with the documents of mutation of the
plaintiffs as well as in the light of pleadings made in the written
statement, it is clear that the defendants were well aware about execution
of registered Will by Abdul Ajij in favour of the plaintiffs and the
genuineness of Will dtd.28.05.1987 is found established prior to date of
filing of suit on 15.05.1998 vide judgment and decree dtd.19.02.1998 in
Civil Suit No.11A/1997. He submits that in the light of judgment and
decree (Ex.P/7) the defendants being tenants, were not in a position to
challenge the Will or title of the plaintiffs over the shop in question in
which the defendants were inducted as tenant by grandfather of plaintiffs.
He submits that in view of the aforesaid factual scenario, first appeal
deserves to be dismissed.
10. Heard learned counsel for the parties and perused the record.
11. In the present case, following points for determination are arising
for consideration of this Court:-
"i. Whether tenant could challenge veracity of the Will especially in the
circumstances where the Will is found to be genuine by the judgment and
decree dtd.19.02.1998 (Ex.P/7) ?
ii. Whether the judgment and decree dtd.19.02.1998 (Ex.P/7) is sufficient
for maintaining the suit for eviction by the plaintiffs ?
iii. Whether on the facts and in the circumstances of the case, decree of
eviction passed by trial Court on the grounds under Section 12(1)(c) & (f) of
the Act is sustainable ?
12. In the present case admittedly the defendants were inducted by
plaintiffs' grand-father/Abdul Ajij (who died on 06.12.1987). It is also an
admitted fact that defendants paid rent to Abdul Ajij as well as to his wife
Rasulan Bi. It is also an admitted fact that after death of Abdul Ajij and
Rasulan Bi, their son Abdul Gaffar challenged the Will of the favour of
plaintiffs by filing civil suit and upon contest made by concerning parties,
civil suit filed by Abdul Gaffar was dismissed vide judgment and decree
dtd.19.02.1998 (Ex.P/7) whereby registered Will of the favour of
plaintiffs was held to be genuine by rejecting the claim of Abdul Gaffar
on the basis of Will dtd.06.12.1987 allegedly executed by Abdul Ajij in
favour of Abdul Gaffar.
13. The aforesaid litigation amongst Abdul Gaffar, Liyaqat Hussain
(son of Abdul Ajij), Mohd. Aarif, Mohd. Asif and Mohd. Uber as well as
Smt. Rasulan Bi has been in knowledge of the defendants and sufficient
averments regarding knowledge of this litigation have been made by the
defendants themselves in their written statement itself. It is pertinent to
mention here that Rasulan Bi was party to the civil suit no.11-A/1997
decided by judgment and decree (Ex.P/7), but she did not dispute the case
of the plaintiffs regarding execution of Will by her husband-Abdul Ajij.
Similarly, Liyaqat Hussain (father of the plaintiffs) also did not dispute
the Will. As such, it can very well be said that at least for the purpose of
filing suit for eviction against tenants of the suit property, plaintiffs are
owner of the house in question and after death of Abdul Ajij and Rasulan
Bi, ownership was devolved upon the plaintiffs automatically and they by
operation of law, especially after death of Abdul Ajij, became owner and
landlord of the shop in question.
14. The defendants do not claim themselves to be owner of the shop in
question nor they claim ownership of Abdul Gaffar over the shop in
question, and they just want to take benefit of the pending
litigation/appeal filed by Abdul Gaffar, but in the existing facts and
circumstances of the case and in view of admitted ownership of the
plaintiffs even as co-sharers, the defendants do not get any benefit on the
basis of pending litigation.
15. As on the date of filing of instant suit on 15.05.1998, the
defendants became aware of the Will as well as judgment and decree
dtd.19.02.1998 (Ex.P/7) passed in favour of the plaintiffs, therefore, they
were not having any right to deny title of the plaintiffs. In the case of
Dashrath Rao Kate Vs. Brij Mohan Srivastava, (2010) 1 SCC 277 and
Jagdamba Prasad Khandelwal Vs. Smt. Shanti Devi 2002 (I) MPWN 12,
it has been held that the defendant/tenant has no right to challenge the
Will because it is dispute between the heirs. It is also apparent from the
record that the alleged owner Abdul Gaffar (DW/3) has not said anything
in his statement made before the Court to the effect that he does not want
to evict the defendants. Even if any litigation is pending amongst the
plaintiffs and Abdul Gaffar, the same does not come in the way of the
plaintiffs because in any case, they being co sharers, as has also been
admitted by the defendants in their written statement, can file suit for
eviction against the defendants/tenants on one or more ground(s) of
eviction available under Section 12(1) of the Act.
16. Except arguing on the question of relationship of landlord and
tenant amongst the parties, learned Counsel for the appellants has not
been able to point out any illegality or perversity in the findings recorded
by trial Court. As the defendants have clearly denied title of the plaintiffs
and the plaintiffs have clearly proved that they are in need of the suit shop
for starting their business and there is no other alternative accommodation
in the township of Sagar, in my considered opinion, trial Court does not
appear to have committed any illegality in passing the decree of eviction
against the defendants. In these circumstances the decision relied upon by
learned counsel for the appellants in the case of Jyoti Sharma (Smt.)
(supra) does not help to the appellants.
17. Upon asking of the Court, counsel for the appellants/defendants has
refused to take time for vacation of the shop in question, therefore, no
time is being granted by this Court for vacating the shop.
18. In view of the aforesaid discussion, instant appeal sans merit and is
dismissed with cost. Counsel fee is quantified as Rs.10,000/-.
19. Miscellaneous application(s), pending if any, shall stand closed and
interim order of stay, if any, shall stand vacated.
(DWARKA DHISH BANSAL)
JUDGE
KPS
Date: 2025.02.01 17:02:56 +05'30'
