Madhya Pradesh High Court

Kamal Kishore vs Manak Chandra Ruthia on 10 July, 2025

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

    1                                                                   S.A. No.461 of 2004

        IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                                   BEFORE
        HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                       ON THE 10th OF JULY, 2025

                    SECOND APPEAL No.461 of 2004

 KAMAL KISHORE (DEAD) THROUGH LRS SUSHILA SHARMA
                  AND ANOTHER
                       Versus
MANAKCHAND RUTHIA (DEAD) THROUGH LRS SMT. POONAM
                RUTHIA AND OTHERS
...................................................................................................................................................................
Appearance:
   Shri Vikram Johri, Advocate for appellants.
  Shri Imtiaz Hussain, Senior Advocate with Shri Mohd. Sazid Khan, Advocate for
respondents.
..............................................................................................................................................................

                                 JUDGMENT

This second appeal is preferred by the original appellant/defendant-

Kamal Kishore (now dead, through LRs) challenging the judgment and

decree dtd. 31.03.2004 passed by 2nd Additional District Judge, Sehore in

Civil Appeal No.43A/2003 affirming the judgment and decree dtd.

21.08.2003 passed by 1st Civil Judge Class-I, Sehore in Civil Suit

No.62A/2001 whereby Courts below have concurrently decreed the suit

for eviction filed by original plaintiff-Manakchand Ruthia (now dead,

through LRs) on the ground of defaults in making payment of rent

available under Section 12(1)(a) and denial of title available under

Section 12(1)(c) of the M.P. Accommodation Control Act, 1961 (in short

'the Act').

2. In short the facts are that the original plaintiff-Manak Chand Ruthia

instituted the suit on 16.04.2001 against original defendant-Kamal

Kishore for eviction of the suit house with the allegations that the plaintiff

is owner of the suit house and the defendant is his tenant on monthly rent

of Rs.22.25 paise and despite service of notice (Ex.P/2), he has not paid

rent for last 36 month amounting to Rs.801/- and has also denied title of

the plaintiff. On inter alia allegations, the suit was filed for eviction on

the grounds available under Section 12(1)(a) & (c) of the Act.

3. The defendant appeared and by filing written statement denied the

plaint averments and specifically pleaded that the plaintiff is not owner of

the house and the defendant is not his tenant. It is contended that the

defendant or his ancestors were in possession of the suit house as owners

for more than last 50 years in the knowledge of the plaintiff and so

recorded in the municipal record. It is also contended that the house has

already been sold in two parts to Smt. Sushila Sharma and Smt. Anju

Paliwal on 03.05.2000 and 21.08.2000 respectively and possession of the

respective portions has also been delivered to them and despite

knowledge of the aforesaid sale, the transferee purchasers have not been

made parties to the suit, therefore, the suit suffers from non-joinder of

necessary parties and is liable to be dismissed. It is also contended that

Smt. Achrajbai being owner was residing in the suit house, who adopted

the defendant vide registered adoption deed dtd. 06.10.1960 and since

then he was residing therein as owner. It is contended that all this was

informed to the plaintiff by sending reply to the notice on 04.01.2001 and

at present the defendant is not in possession of the house, therefore, the

suit is not maintainable against him. On inter alia contentions the suit was

prayed to be dismissed.

4. On the basis of pleadings of the parties, trial Court framed issues

and recorded evidence of the parties. In support of his case, the plaintiff

examined Ashok Kataria (PW/1), Manakchand Ruthia (PW/2), Ram

Prasad Mewada (PW/3) and produced documentary evidence (Ex.P/1 to

P/23). The defendant also examined himself-Kamal Kishore (DW/1) and

submitted documentary evidence (Ex.D/1 to D/4). After hearing the

parties, trial Court mainly on the basis of the judgment and decree dtd.

27.02.2003 passed in Civil Suit No. 8A/2001 (Ex.P/5 and P/6), held the

plaintiff to be owner and landlord and the defendant to be tenant in the

suit house and as the defendant did not pay rent and has also denied title

of the plaintiff claiming himself to be owner as well as to Sushila Sharma

and Anju Paliwal on the basis of sale deeds, decreed the suit vide

judgment and decree dtd. 21.08.2003.

5. Upon filing civil appeal by the defendant-Kamal Kishore, first

appellate Court also affirmed the judgment and decree of trial Court vide

its impugned judgment and decree dtd. 31.03.2004. Against the aforesaid

judgment and decree passed by Courts below the defendant preferred

second appeal, which was admitted for final hearing on 02.08.2005 on the

following substantial question of law:-

"In the absence of any documentary proof regarding relationship between landlord and tenant, whether a suit for eviction under provisions of M.P. Accommodation Control Act can be legally decreed merely on the basis of municipal entries?"

6. Learned counsel for the appellants submits that both the Courts

below have committed illegality in decreeing the suit for eviction mainly

on the basis of municipal entries as well as judgment and decree dtd.

27.02.2003 (Ex.P/5 & P/6), whereas in support of the case pleaded in the

plaint, no documentary evidence showing title/ownership as well as

landlordship has been filed. As such and admittedly when the defendant

has never paid rent to the plaintiff, Courts below have committed

illegality in decreeing the suit. He submits that in absence of relationship

of landlord and tenant, the suit could not have been decreed. With these

submissions, he prays for allowing the second appeal.

7. Learned senior counsel for the respondents supports the impugned

judgment and decree passed by Courts below and prays for dismissal of

the second appeal with the further submissions that the finding in relation

to relationship of landlord and tenant is a pure finding of fact and is not

liable to be interfered with in the second appeal.

8. Heard learned counsel for the parties and perused the record.

9. In the present case, it is an undisputed fact available on record that

the defendant never paid any rent to the plaintiff and in fact defendant's

name as owner of the house is recorded in the house tax register of the

municipality. It is also apparent from the record that Courts below have

mainly on the basis of judgment and decree dtd. 27.02.2003 (Ex.P/5 &

P/6), held the plaintiff to be landlord and defendant to be his tenant, and

as the defendant has not paid rent to the plaintiff and also denied title

clearly, claiming himself to be owner of the house, passed decree of

eviction on the grounds under Section 12(1)(a) & (c) of the Act.

10. In paragraph 10 of his statement recorded on 13.03.2003, the

plaintiff-Manakchand Ruthia, aged 66 years (PW-2) has clearly stated

that no direct tenancy was there of the plaintiff with the defendant-Kamal

Kishore or with his mother Achrajbai, then he himself says that at that

time he was minor and tenancy was with his mother. He also says that he

is money lender and in the account books there is no entry about deposit

of rent by Achrajbai or Kamal Kishroe. In paragraph 11 he says that rent

was paid by the defendant upto last 8-10 years. In paragraph 13 he states

that he does not know that in the year 1972 name of the defendant was

recorded, but in the same paragraph he admits that against this order he

filed application before Addl. Collector, which was dismissed and appeal

filed against it, is pending before Bhopal Commissioner. In paragraph 14

he admits that Anju and Sushila are in physical possession of house.

11. Ramprasad Mewda (PW-3) has been produced as a witnesses who

was allegedly recovering rent from the defendant and Achrajbai, who in

paragraph 3 states that he has no knowledge about month or year in

which he went for taking rent and received.

12. Even in presence of the aforementioned oral evidence, both the

Courts below in pick and choose manner considered evidence adduced by

the plaintiff and mainly on the basis of previous judgment and decree dtd.

27.02.2003 (Ex.P/5 and P/6) as well as on the basis of municipal entry

made in house tax register showing Achrajbai as tenant, Courts below

have held that there is relationship of landlord and tenant in between the

parties. Certified photocopy of house tax register (Ex.P/1) clearly depicts

that in column no. 5 of the register name of Achrajbai is written in

different ink and different sized letters and creating doubt about the entry.

13. It is also pertinent to mention here that first of all trial Court

became much impressed with the fact that defence of the defendant was

struck out and while deciding issue no.4, it has been found that the

defendant is not owner of the house and further by the judgment

dtd.27.02.2003 (Ex.P/5) the plaintiff has been found to be owner and the

defendant to be tenant and ultimately vide paragraph 15 of its judgment

dtd.21.08.2003, trial Court concluded that the plaintiff is landlord and

defendant is tenant. At the same time, in last lines of paragraph 14, trial

Court has wrongly observed that 'defendant has said that he has paid rent

upto 8-10 years ago', which is perversity in the judgment of trial Court.

Apparently, first appellate Court has not cared to read the judgment of

trial Court and affirmed the same as a matter of grace despite recording

several negative findings in relation to legality of municipal entries.

14. In the case of Tribhuvanshankar (supra) the Hon'ble Supreme

Court has held as under :-

"30. On a seemly analysis of the principle stated in the aforesaid authorities, it is quite vivid that there is a difference in exercise of jurisdiction when the civil court deals with a lis relating to eviction brought before it under the provisions of Transfer of Property Act and under any special enactment pertaining to eviction on specified grounds. Needless to say, this court has cautiously added that if alternative relief is permissible within the ambit of the Act, the position would be different. That apart, the Court can decide the issue of title if a tenant disputes the same and the only purpose is to see whether the denial of title of the landlord by the tenant is bona fide in the circumstances of the case. We respectfully concur with the aforesaid view and we have no hesitation in holding that the dictum laid down in Bhagwati Prasad (supra) and Bishwanath Agarwalla (supra) are distinguishable, for in the said cases the suits were filed under the Transfer of Property Act where the equitable relief under Order VII Rule 7 could be granted.

31. At this juncture, we are obliged to state that it would depend upon the Scheme of the Act whether an alternative relief is permissible under the Act. In Rajendra Tiwari's case the learned Judges, taking into consideration the width of the definition of the "landlord" and "tenant" under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, had expressed the opinion. The dictionary clause under the Act, with which we are concerned herein, uses similar expression. Thus, a limited enquiry pertaining to the status of the parties, i.e., relationship of landlord and tenant could have been undertaken. Once a finding was recorded that there was no relationship of landlord and tenant under the Scheme of the Act, there was no necessity to enter into an enquiry with regard to the title of the plaintiff based on the sale deed or the title of the defendant as put forth by way of assertion of long possession. Similarly, the

learned appellate Judge while upholding the finding of the learned trial Judge that there was no relationship of landlord and tenant between the parties, there was no warrant to reappreciate the evidence to overturn any other conclusion. The High Court is justified to the extent that no equitable relief could be granted in a suit instituted under the Act. But, it has committed an illegality by affirming the judgment and decree passed by the learned trial Judge because by such affirmation the defendant becomes the owner of the premises by acquisition of title by prescription.

When such an enquiry could not have been entered upon and no finding could have been recorded and, in fact, the High Court has correctly not dwelled upon it, the impugned judgment to that extent is vulnerable and accordingly we set aside the said affirmation."

15. Placing reliance on the aforesaid decision of Hon'ble Supreme

Court in the case of Tribhuvanshankar (supra), this court in the case of

Jawahar Sen and others vs. Santosh Chadda (Dead) Thr. LRs. and others,

ILR 2024 MP 2087, held as under :-

"15. Although while deciding the issue No.2 courts below have held that there is relationship of landlord and tenant among the plaintiffs and defendants, but that finding has been recorded by courts below only on the premise that the plaintiffs have purchased the suit property by way of registered sale deed (Ex.P/1). In my considered opinion, in absence of any other material/admissible evidence, the findings of Courts below on issue no. 2, are not sustainable and in absence of any other supportive evidence, mere sale deed cannot be made basis for recording finding on the question of relationship of landlord and tenant. Further, the documents Ex.P-15 & Ex.P-16 being the mutation entries of the names of Bhargavas, have no relevance about relationship of landlord & tenant."

16. It is well settled that even after striking out defence of

defendant/tenant against eviction, general defences are available to him

and upon denial of relationship of landlord and tenant, it is for the

landlord to prove relationship by adducing cogent and reliable evidence.

As has been said by first appellate Court and it is well settled that

municipal entry made in house tax register is not a proof of title and

merely because of the fact that the plaintiff is owner, relationship of

landlord and tenant cannot be presumed/inferred.

17. In view of the fact that the plaintiff has failed to prove relationship

of landlord and tenant in between the plaintiff and defendant, therefore, in

my considered opinion, Courts below have committed illegality in

decreeing the suit for eviction against the defendant-Kamal Kishore, who