Madhya Pradesh High Court
Abdul Khalik(D) Mohd.Saleem & Ors vs Inautullah & Ors on 11 July, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
SA-686 of 2002
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No. 686 of 2002
ABDUL KHALIK (DEAD, THROUGH LRs) MOHD. SALEEM & ORS
Versus
INAUTULLAH (DEAD, THROUGH LRs) & ORS
Appearance:
Shri Akhilesh Jain - Advocate for the appellants.
Shri Ravish Agrawal - Senior Advocate assisted by Ms. Sanjna Sahni & Ms. Arti Namdeo,
Advocate for the respondents.
Reserved on :: 02.07.2025
Pronounced on :: 11.07.2025
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JUDGMENT
This second appeal has been preferred by the original appellant/tenant
Abdul Khalik Bachcha (now dead, through LRs.), challenging the judgment
and decree dated 12.07.2002 passed by 3rd Addl. District Judge, Satna, in
civil appeal no.74A/2001 affirming the judgment and decree dated
13.08.2001 passed by 2nd Civil Judge Class-II, Satna, in civil suit
no.128A/98 whereby Courts below have decreed respondents/plaintiffs' suit
for eviction on the grounds available under Section 12(1)(a), (c) & (h) of the
M.P. Accommodation Control Act, 1961 (in short 'the Act').
2. In short, the facts are that the original plaintiff-Smt. Zahra Begum
(now dead, through LRs.), instituted a civil suit for eviction and arrears of
rent in respect of house nos.107/7 and 108/8 situated in Ward no.13, Panni
Lal Chowk, Satna claiming herself to be owner and landlord of the rented
premises with the allegations that defendant is tenant in the house on rent of
SA-686 of 2002
Rs.18/- per month, which was let out to the defendant about 30 years back. It
is alleged that plaintiff's father were three brothers namely Mohammad
Hussain, Mahmood Hussain and Ahmad Hussain, who have died. The
plaintiff is only daughter of Mohammad Hussain. There was a partition
among the said three brothers and suit house was allotted to the share of
Zahara Begum. It is alleged that defendant is in arrears of rent, which was
not paid by him in spite of service of demand notice dtd. 12.08.1979 and
16.01.1998. In reply of which, defendant denied title of the plaintiff stating
that the house is owned by Man Ali and Abdul Shakoor. It is also alleged that
the defendant has made certain additions and alterations and also changed
user of the premises and the same is needed for reconstruction. On inter alia
allegations the suit was instituted on 11.04.1981.
3. By filing written statement, the defendants denied averments made
in the plaint, disputing the identity of the suit accommodation as well as
relationship of landlord and tenant on the premise that western part of the
house bearing no. 107/7 (old no. 33/7) was owned by Man Ali s/o Karim
Bux, who died in the year 1930 leaving behind him his widow and son
Gulam Mohammad, who went Allahabad after giving western house on rent
to defendant's father Faiz Mohammad. There was a preliminary decree of
redemption of mortgage against Man Ali in favour of Jhabbulal Marwadi,
pursuant thereto he received title over the house and then sold to Mohd.
Hussain and Mehmood Hussain, which does not confer any title to them.
Another eastern part bearing no.108/8 (old no. 33/8) was owned by
Hazaratullah s/o Abdul Shakoor, which was entrusted to father of the
defendants namely Faiz Mohd. in the year 1944, who died in the year 1950.
Hazratullah being in need of the money sold his part to Mohd. Hussain and
Mehmood Hussain, which in fact was not real transaction of sale. As
SA-686 of 2002
Hazratullah went Pakistan, therefore, Gulam Mohammad started claiming
himself to be his successor and owner of this part also. Ahmad Hussain was
taking care of the house as an agent of Gulam Mohammad. Ahmad Hussain
and his brother Mohd. Hussain as agents of Gulam Mohand received the rent
upto the year 1955, on that basis they do not become landlord and owner of
the house. In fact, the defendants denied all the averments of plaint relating
to grounds of eviction and prayed for dismissal of the suit.
4. On the basis of pleadings of the parties, trial Court framed issues and
recorded evidence of the parties. Upon due consideration of the available
evidence especially in the light of registered sale deeds dated 02.09.1936 and
02.01.1946 (Ex.P/1 & P/2), trial Court held that the plaintiff is owner and
landlord of the suit accommodation and holding the relationship of landlord
and tenant amongst the parties, decreed the suit for eviction on the grounds
available under Section 12(1)(a),(c) & (h) of the Act vide judgment and
decree dated 13.08.2001.
5. Against the aforesaid judgment and decree passed by trial Court,
regular civil appeal was filed by defendant-Abdul Khalik Bachcha in which
cross objection was also filed by the respondents/plaintiffs in respect of
adverse findings on the question of partition and payment of rent to the
plaintiff. After hearing the parties, first appellate Court dismissed the civil
appeal as well as cross objection and affirmed the judgment and decree
passed by trial Court vide impugned judgment and decree dated 12.07.2002.
6. Against the aforesaid judgment and decree passed by Courts below,
second appeal was preferred, which was admitted on 07.04.2007 on the
following substantial questions of law:-
"(1) Whether Late Zahra Begum alone had a right to institute C.S No.128-A/98 seeking
eviction of tenant Late Abdul Khalik Bachaha ?
SA-686 of 2002
(2) Whether the first Appellate Court erred in allowing application u/o 41 Rule 27 of
C.P.C. filed by defendant/appellant ?"
7. At the outset learned counsel for the appellants, in respect of the
substantial question of law no. 2, submits that in fact the application under
Order XLI Rule 27 CPC filed by the defendants/appellants was allowed by
first appellate Court, therefore, he is not pressing the substantial question of
law no.2, which appears to have been framed wrongly.
8. As regards substantial question of law no.1, he submits that the
plaintiff Zahra Begum alone had no right to file civil suit because there were
other co-owners of the property as has been alleged in the plaint also. He
submits that in absence of impleadment of all the co-owners, as party to the
suit, the decree could not have been passed. He submits that before first
appellate Court, a son of one of the co-owners also moved an application
under Order 1 Rule 10 CPC, which was wrongly dismissed and filing of such
application depicts that he was objecting to the eviction of defendant. He also
submits that the defendant never paid any rent to the plaintiff and there being
no privity of contract in between the plaintiff and defendant, suit could not
have been decreed. He further submits that the plaintiff had already
terminated tenancy by issuing notice dated 23.03.1956 (Ex.D/5), therefore, as
per Article 67 of the Limitation Act, suit for eviction filed after 12 years
ought to have been dismissed as barred by limitation. He also submits that
there was a preliminary decree in favour of Jhabbu Lal, which itself did not
confer any right on him to execute the sale deed on 02.09.1936 (Ex.P.1).
Similarly, the sale deed dtd. 02.01.1946 (Ex.P/2) being not a real transaction
of sale, does not confer any right on the plaintiff. In support of his
submissions, he placed reliance on the decisions in the case of Shankar
Balwant Lokhande (dead) by L.Rs. vs. Chandrakant Shankar Lokhande and
SA-686 of 2002
another, AIR 1995 SC 1211 and Hafizullah and another vs. Smt. Shikhar
Chand Jain & Ors., 1997(2) MPJR 258. With these submissions, he prays
for allowing the second appeal.
9. Learned counsel appearing for the respondents/plaintiffs supports
the impugned judgment and decree passed by Courts below and prays for
dismissal of the second appeal with the further submissions that there are
concurrent findings of facts by Courts below regarding relationship of
landlord and tenant and in absence of any substantial question of law, learned
counsel for the appellants, cannot be permitted to argue in that regard. In
support of his submissions, learned senior counsel placed reliance on the
decision of Hon'ble Supreme Court in the case of India Umbrella
Manufacturing Co. and others vs. Bhagabandei Agarwalla (dead) by LRS.
Savitri Agarwalla (Smt) and others, (2004) 3 SCC 178.
10. Heard learned counsel for the parties and perused the record.
11. Undisputedly, in the present case only substantial question of law
no.1 is there, for consideration of this Court. Although, before this Court
aforementioned oral submissions have been made but no application under
Section 100(5) of the CPC for formulating any other substantial question of
law has been filed and even after advancing arguments, beyond the scope of
formulated substantial question of law, learned counsel for the appellants has
not been able to point out any illegality in the judgment and decree passed by
Courts below, especially in the finding relating to relationship of landlord
and tenant in between the parties, which is otherwise established in the light
of special pleas taken in the written statement.
12. So far as the substantial question of law no.1 is concerned, it is well
settled that one co-owner can bring the suit for eviction of tenant until and
unless other co-owners object. In the present case, undisputedly, before trial
SA-686 of 2002
Court, no co-owner objected to the eviction of defendant/tenant and in the
first appeal an application under Order 1 Rule 10 CPC was filed by a son of
one of the co-owners, for his impleadment in the suit, but perusal of the
application shows that he also did not object to the eviction of defendant.
13. It has been found proved by the Courts below that the defendant
was tenant of predecessor-in-title of the plaintiff's father Mohammad
Hussain and his brother Mehmood Hussain, who purchased the suit house
vide regd. sale deeds (Ex.P/1 and P/2), therefore, by operation of law, the
defendant became tenant of the plaintiff after death of her father Mohammad
Hussain and was bound to make payment of rent as per provisions of the Act.
Further, both the Courts below finding all the grounds of eviction
established, decreed the suit. Apparently, no substantial question of law has
been framed regarding veracity of the findings on any of the grounds of
eviction, as such the same have attained finality.
14. In the case of India Umbrella Manufacturing Co. and others
(supra), the Hon'ble Supreme Court has held as under:-
"6. Having heard the learned counsel for the parties we are satisfied that the appeals
are liable to be dismissed. It is well settled that one of the co- owners can file a suit
for eviction of a tenant in the property generally owned by the co-owners. (See: Sri
Ram Pasricha Vs. Jagannath & Ors., (1976) 4 SCC 184; Dhannalal Vs. Kalawatibai
& Ors., (2002) 6 SCC 16, para 25). This principle is based on the doctrine of agency.
One co-owner filing a suit for eviction against the tenant does so on his own behalf
in his own right and as an agent of the other co-owners. The consent of other co-
owners is assumed as taken unless it is shown that the other co-owners were not
agreeable to eject the tenant and the suit was filed in spite of their disagreement.
In the present case, the suit was filed by both the co-owners. One of the co-owners
cannot withdraw his consent midway the suit so as to prejudice the other co-owner.
The suit once filed, the rights of the parties stand crystallised on the date of the suit
and the entitlement of the co- owners to seek ejectment must be adjudged by
reference to the date of institution of the suit; the only exception being when by
virtue of a subsequent event the entitlement of the body of co-owners to eject the
tenant comes to an end by act of parties or by operation of law."
SA-686 of 2002
15. In view of the aforesaid decision of Hon'ble Supreme Court in the
case of India Umbrella Manufacturing Co. and others (supra), as there is no
objection on behalf of the co-owners regarding eviction of the
defendants/tenants, the substantial question of law no.1 as formulated by this
Court does not arise. In this view of the matter, both the decisions relied
upon by learned counsel for the appellants, do not provide any help to the
appellants.
16. In view of the aforesaid discussion and upon due consideration of
the entire material available on record, this Court does not find any illegality
in the impugned judgment and decree of eviction passed by Courts below.
17. Resultantly, instant second appeal fails and is hereby dismissed.
18. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
pb
PRASHANT BAGJILEWALE Digitally signed by PRASHANT BAGJILEWALE
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, 2.5.4.20=062bc13272373e2768c883468695ccafcb8f7bf9db7cbd37ad359bc82069bcdf, postalCode=482001, st=Madhya Pradesh, serialNumber=A08AE25ACEFF18C7A0F94698E1BC6A3CCF1DC9654549200EB1BC8E5DDF6349B0, cn=PRASHANT BAGJILEWALE
Date: 2025.07.11 18:08:33 +05'30'
