Madhya Pradesh High Court
Smt.Munni Devi vs Ghanshyam Das on 30 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:13425
1 S.A. No. 137 of 2012
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 30th OF JUNE, 2025
SECOND APPEAL No. 137 of 2012
SMT.MUNNI DEVI AND OTHERS
Versus
GHANSHYAM DAS AND OTHERS
Appearance:
Shri Ashish Saraswat, Advocate for appellants.
Shri Vikaas Sinhal, Advocate for respondent Nos. 1 and 2.
JUDGMENT
This Second Appeal, under Section 100 of CPC, has been filed against
the judgment and decree dated 22.09.2011 passed by III Additional Judge to
the Court of I Additional District Judge, Gwalior (M.P.) in Civil Appeal
No.21A/2009 by which the judgment and decree dated 05.04.2005 passed by
VIII Civil Judge Class -I, Gwalior (M.P.) in Civil Suit No.19A/2005 was
partially set aside.
2. The facts necessary for disposal of present appeal, in short, are that
respondents No.1 and 2 filed a civil suit for eviction and recovery of arrears of
rent. The suit was filed against Bhawani/respondent No.3. It was the case of
respondents No.1 and 2 that they are the owner and in possession of the
disputed property situated in Ghasmandi, Chhota Bazar, Gwalior (M.P.).
NEUTRAL CITATION NO. 2025:MPHC-GWL:13425
Bhawani/respondent No.3 was the tenant on monthly rent of Rs.40/- excluding
electricity expenses. The old municipal number of the property is 4/246 and
new number of 5/179. It was pleaded that respondent No.3/defendant was
inducted as tenant by earlier owner Shri Ramnarayan Vidhichandra from
whom the plaintiffs had purchased the entire property by registered sale deed
dated 29.07.2000 and, accordingly, from the said date respondent
No.3/defendant became tenant of plaintiffs. The tenancy was a monthly
tenancy starting from 01st of every month and coming to an end on the last day
of the said month. It was alleged that respondent No.3 is in arrears of rent from
01.03.1994 and in spite of demand notice he has not paid rent and accordingly,
a decree under Section 12(1)(a) of M.P. Accommodation Control Act (for
brevity the "Act") was sought. Similarly, it was claimed that respondent
No.3/defendant is of a very aggressive nature and always uses abusive
language and extends a threat that he would hand over the vacant possession of
the shop to somebody else and has also damaged the floor of the shop and
accordingly decree was also sought under Section 12(1)(c) of the Act. By
amending the plaint, it was also claimed that the defendant has denied the title
of the plaintiffs in his written statement, therefore, the plaintiffs are also
entitled for decree on the ground of denial of title.
3. Respondent No.3/defendant filed his written statement and claimed that
Smt. Swaroopi Bai wd/o Ramnarayan Agrawal was the landlord who had let
out the shop to the respondent No.3/defendant. The plaintiffs had never
inducted respondent No.3/defendant as tenant. Defendant has never paid rent
to plaintiffs and it was also denied that defendant is tenant of plaintiffs on
monthly rent of Rs.40/-. It was admitted that defendant/respondent No.3 was
inducted as tenant by Ramnarayan Vidhichandra. However, it was denied that
plaintiffs have purchased the disputed property by registered sale deed dated
NEUTRAL CITATION NO. 2025:MPHC-GWL:13425
29/7/2002. All other plaint averments were denied. It was pleaded that
plaintiffs cannot claim arrears of rent for a period more than three years. It
was claimed by respondent No.3/defendant that Swaroopi Bai Widow of
Ramnarayan Agrawal was owner of the property in dispute and during her
lifetime she had entered into a verbal agreement for sale of the shop for a
consideration amount of Rs.40,000/-. Defendant had paid Rs.30,000/- to
Swaroopi Bai by way of advance and remaining Rs.10,000/- was agreed to be
paid at the time of Registry and, accordingly, owner of suit shop namely
Swaroopi Bai had refused to collect rent from defendant/respondent No.3.
After the verbal agreement to sell, Swaroopi Bai fell ill and, accordingly, she
could not execute the sale deed in spite of multiple reminders given by
defendant. Ultimately, Swaroopi Bai died in the year 1982. After the death of
Swaroopi Bai, defendant also requested her son Laxman Das to execute the
sale deed, but Laxman Das did not execute the sale deed. After the death of
Laxman Das, defendant has requested Suresh Goyal on multiple occasions to
execute the sale deed, but the sale deed has not been executed. Suresh Goyal
prepared a forged Will dated 6/2/1992 and on the basis of said forged Will, he
has executed sale deed in favour of plaintiffs. Thus, it was claimed that
although Suresh Goyal was aware of the fact that Swaroopi Bai had already
sold the property to defendant, but with an intention to harass the defendant,
sale deed has been executed in favour of plaintiffs. It was further claimed that
Rameshwar Dayal also claimed himself to be the owner of suit property,
therefore Rameshwar Dayal had also filed a suit against defendant which was
registered as RCSA No.403A/94 and is pending in the Court of XI Civil Judge
Class II, Gwalior.
4. The trial Court after framing issues and recording evidence dismissed
the suit by judgment and decree dated 5/4/2005 and it was held that defendant
NEUTRAL CITATION NO. 2025:MPHC-GWL:13425
is not the tenant of plaintiffs and it was also held that plaintiffs have failed to
prove that defendant was in arrears of rent. Being aggrieved by the judgment
and decree dated 5/3/2005 passed by the trial Court, respondent Nos. 1 and 2
preferred appeal under section 96 of CPC which was registered as RCA
No.21A/2009. The appellate Court, by judgment and decree dated 22/9/2011
passed in Civil Appeal No.21A/2009 allowed the appeal and passed the decree
of eviction against respondent No.3 on the ground of arrears of rent and denial
of title.
5. It appears that during the pendency of appeal, respondent number 3
Bhawani filed an application under Section 151 of CPC to the effect that a suit
was also filed by Rameshwar Dayal against respondent No.3, which was
registered as RCSA No. 403A of 1994, and in execution of judgment and
decree passed in the said suit, respondent No. 3/defendant has handed over the
possession of Suit Shop to Gyanchand, who is the general power of attorney
holder of Rameshwar Dayal, and accordingly it was prayed that since the
vacant possession of the suit shop has been handed over to Rameshwar Dayal,
therefore the appeal has rendered infructuous and accordingly it was prayed
that it may be dismissed.
The plaintiff objected to the said application. It was contended that
defendant/respondent No. 3 had claimed that Swaroopi Bai was the owner of
property in dispute and also claimed that Rameshwar Dayal is not the owner. It
was further claimed that since appellants were not party in the said suit,
therefore even if any collusive decree has been obtained by the parties, still the
same is not binding on the appellant.
The trial court, after hearing the parties, passed the order dated
11.9.2006 and dismissed the application filed by the respondent
No.3/defendant on the ground that it is the case of defendant that he was
NEUTRAL CITATION NO. 2025:MPHC-GWL:13425
inducted as tenant by Ramnarayan and since the appellants were not party to
the suit filed by Rameshwar Dayal against defendant, therefore it is not
binding on them. If defendant has already handed over possession to
Rameshwar Dayal on account of compromise, then it would not adversely
affect the rights of the appellants to prosecute the appeal.
6. It appears that respondent numbers 1 and 2 also filed an application
under Order 1 Rule 10 CPC, contending that since defendant has handed over
vacant possession of the suit shop to Rameshwar Dayal, therefore it is
necessary to implead Rameshwar Dayal and his power of attorney holder
Gyanchand as defendant numbers 2 and 3. The aforesaid application was
opposed by original defendant and it was pleaded that burden is on the
respondent numbers 1 and 2 to prove that they were owners of property in
dispute. The proposed party, namely Rameshwar Dayal, also filed his reply
and stated that he was not impleaded as a party in the suit. It was pleaded that
he had filed a suit for eviction against defendant, which has been decreed, and
on account of compromise during execution proceedings, the possession of
suit shop has been handed over to him. If respondent numbers 1 and 2 have
any grievance with regard to title, then they can file a separate suit.
The trial court by order dated 11.9.2006 allowed the application filed
under Order 1 Rule 10 CPC and Rameshwar Dayal and his power of attorney
holder Gyanchand were directed to be impleaded as respondent Nos. 2 and 3.
7. It appears that WP No. 5475 of 2006 was filed by Rameshwar Dayal and
his power of attorney holder Gyanchand Jain and this court by order dated
1,11.2006 stayed further proceedings. Ultimately, the petition was dismissed in
default by order dated 12.10.2007. In the meanwhile, as Rameshwar Dayal had
expired, therefore an application under Order 22 Rule 4 CPC was filed on
14.3.2008. Thereafter, by order dated 18.8.2011, appellate court allowed the
NEUTRAL CITATION NO. 2025:MPHC-GWL:13425
application filed under Order 22 Rule 4 CPC and legal representatives of
Rameshwar Dayal were brought on record. As Nemichand, one of the legal
representatives of Rameshwar Dayal, had also expired on 8.10.2008,
accordingly another application under Order 22 Rule 4 CPC read with Section
5 of the Limitation Act was filed and by the same order the said application
was allowed and legal representatives of Nemichand were also taken on
record. It appears that thereafter legal representatives of Rameshwar Dayal and
Gyanchand did not appear before the appellate Court and accordingly they
were proceeded ex parte, and by the impugned judgment dated 22.9.2011, the
appellate Court set aside the judgment and decree passed by the trial court and
directed that respondent/defendant shall hand over vacant possession of suit
shop to plaintiffs within a period of 2 months and defendant shall also pay
arrears of rent to the tune of Rs. 1440 and shall also pay monthly rent at the
rate of Rs. 40 till actual possession is given.
8. Challenging the judgment and decree passed by the appellate Court, it is
submitted by counsel for appellants that appellant Nos. 1-10 are legal
representatives of Rameshwar Dayal, whereas appellant No. 11 is Gyanchand.
At appellate stage, Gyanchand and Rameshwar Dayal were impleaded as
defendant Nos. 2 and 3 and subsequently legal representatives of Rameshwar
Dayal were brought on record, therefore, the appellate Court should have
remanded the matter back to the trial court as appellants were impleaded for
the first time in the appeal and proposed the following substantial questions of
law:-
"a) Whether the learned lower appellate court was justified in setting
aside the well reasoned judgment and decree passed by the Learned
Trial court ?
b) Whether the judgment and decree passed by the lower appellate
court is sustainable in the eye of law when it is illegal, arbitrary and
perverse ?
NEUTRAL CITATION NO. 2025:MPHC-GWL:13425
c) Whether the judgment and decree passed by the learned lower
appellate court deserves to be quashed when nothing is mentioned
about the appellant in the whole judgment and decree ?
d) Whether the learned lower appellate court was justified in
impleading the present appellant as a respondent in the array of
cause title ?
e) Whether the learned lower appellate court was justified in not
remanding the matter after impleading the present appellants as
respondent in appeal memo? The present appellants were deprived
from adducing the evidence before the learned trial court.
f) Whether the learned lower appellate court was justified in
decreeing the suit on the basis of the Will dated 06-02-1992, when
the plaintiff has not proved the Will in accordance with the
provisions of Indian Succession Act, 1925?
g) Whether the judgment and decree passed by the lower appellate
court deserves to be quashed which is based on the alleged WILL
dated 06-02-1992 when Suresh Goyal and either of the witness has
not entered the witness box to prove the WILL as provided under
Sec. 63 and 67 of the Indian Succession Act, 1925?"
9. Heard learned counsel for the appellant.
10. Undisputedly, Rameshwar Dayal as well as Gyanchand were served with
notice. Rameshwar Dayal had also appeared before the appellate Court and
had filed his reply to an application under Order 1 Rule 10 CPC and by order
dated 11.9.2006, the said application was allowed and Rameshwar Dayal as
well as Gyanchand were impleaded as defendant Nos. 2 and 3.
Thereafter, after the death of Rameshwar Dayal, legal representatives of
Rameshwar Dayal were also impleaded, who are appellant Nos. 1-10 in the
present appeal. But neither legal representatives of Rameshwar Dayal nor
Gyanchand, who is the son of Rameshwar Dayal, contested the appeal and
they decided to remain ex parte. The least which was expected from them was
to request the appellate Court to remand the case to enable them to file written
statement, but even that was not done. Once the appeal was not opposed by
appellants, then the appellate Court was left with no other option but to decide
NEUTRAL CITATION NO. 2025:MPHC-GWL:13425
the appeal on merits. Therefore, it is held that since the appellants did not
participate in appeal and decided to remain absent, therefore, if the appellate
Court did not remand the case, still it cannot be said that any illegality was
committed by it.
11. Although other substantial questions of law have also been proposed,
but no arguments were advanced in respect of those substantial questions of
law.
12. In view of the fact that appellants had remained ex parte and did not
appear before the appellate court, this Court is of the considered opinion that
no substantial question of law arises in the present appeal.
13. Accordingly, judgment and decree dated 22.9.2011 passed by III
Additional Judge to the Court of First Additional District Judge, Gwalior in
RCA No. 21A of 2009 is hereby affirmed.
Appeal fails and is hereby dismissed.
(G.S. Ahluwalia)
(and) Judge
