Madhya Pradesh High Court
Laxminarayana Shivhare vs Alok Joshi on 19 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:6120
1 S.A. Nos. 2616 of 2024 & 3136 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
SECOND APPEAL No. 2616 of 2024
LAXMINARAYANA SHIVHARE AND OTHERS
Versus
ALOK JOSHI
Appearance:
Shri H.K. Shukla and Shri Prashant Singh Kaurav- Advocates for
appellants.
Shri F.A. Shah- Advocate for respondent.
&
SECOND APPEAL No. 3136 of 2024
ALOK JOSHI
Versus
SMT BHAVNA SHIVHARE
Appearance:
Shri F.A. Shah- Advocate for appellant.
Shri Vivek Khedkar- Senior Advocate with Shri Rishibh Singh Chouhan,
Advocate for respondent.
Reserved on : 10/03/2025
Pronounced on : 19/03/2025
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 3/19/2025
5:42:00 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:6120
2 S.A. Nos. 2616 of 2024 & 3136 of 2024
JUDGMENT
By this common order, S.A. No.2616/2024 and S.A. No.3136/2024 are
being decided.
2. S.A. No.2616/2024 has been filed by Laxminarayan Shivhare, Smt. Sunita
Shivhare and Smt. Shakuntala Shivhare, against common judgment dated
02/09/2024 passed by XV District Judge, Gwalior in RCA No.180/2023 arising
out of the judgment and decree dated 12/08/2023 passed by V Civil Judge, Junior
Division, Gwalior in RCSA No.591/2017.
S.A. No.3136/2024 has been filed by Alok Joshi against common judgment
dated 02/09/2024 passed by XV District Judge, Gwalior in RCA No.146/2023
arising out of judgment and decree dated 12/07/2023 passed by XI Civil Judge,
Junior Division, Gwalior in RCSA No.832/2018.
3. Facts necessary for disposal of present appeals, in short, are that Bhogiram
Shivhare was the owner of Municipal Building No. 58 (New No. 1151), Ward
No.11, Kapil Market, Hazira, Gwalior. Alok Joshi, who had filed RCA
No.146/2023 & S.A. No.3136/2024, was inducted by Bhogiram Shivhare as his
tenant. Bhogiram Shivhare expired sometimes in the month of December, 2016.
Bhavna Shivhare, who is respondent in S.A. No.3136/2024 filed a suit (RCSA
No.832/2018) for eviction against Alok Joshi claiming herself to be the owner,
being legally wedded wife of Bhogiram Shivhare, whereas Laxminarayan
Shivhare, Sunita Shivhare and Shakuntala Shivhare (appellants in S.A.
No.2616/2024) also filed RCSA No.591/2017 for eviction. The XI Civil Judge,
Junior Division, Gwalior, by judgment and decree dated 12/07/2023 decreed the
suit (RCSA No.832A/2018) in favour of Bhavna Shivhare for eviction on the
ground of arrears of rent by holding that Alok Joshi was tenant at the rate of
Rs.7500/- per month. Similarly, the V Civil Judge, Junior Division, Gwalior, by
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judgment and decree dated 12/8/2023 decreed the suit (RCSA No.591A/2017) in
favour of Laxminarayan Shivhare, Smt. Sunita Shivhare and Shakuntala Shivhare
on the ground of arrears of rent by holding that Alok Joshi was their tenant at
monthly rent of Rs.5500/-. Thus, in respect of same building and same tenant, two
different civil suits were filed by two set of persons before two different trial
Courts and both the trial Courts decreed the respective suits.
Being aggrieved by the judgment and decree dated 12/7/2023 passed in
RCSA No.832/2018 which was filed by Bhavna Shivhare, tenant Alok Joshi
preferred RCA No.146/2023. Similarly against the judgment and decree dated
12/8/2023 passed in RCSA No.591A/2017, tenant Alok Joshi preferred RCA No.
180/2023. Both the Regular Civil Appeal Nos. 146/2023 and 180/2023 filed by
tenant Alok Joshi have been decided by XV District Judge, Gwalior by common
impugned judgment and decree dated 02/09/2024. It was held by the appellate
Court that since Bhavna Shivhare had collected rent for a period of two months
i.e. January and Feburary, 2017, therefore, she has to be treated as
Bhumiswami/owner and, therefore, the suit filed by Bhavna Shivhare (RCSA
No.832/2018) was decreed whereas the suit filed by Laxminarayan Shivhare,
Smt. Sunita Shivhare and Smt. Shakuntala Shivhare (RCSA No.591/2017) was
dismissed being barred by res judicata in view of judgment and decree dated
12.07.2024 passed in RCSA No.832/2018.
Laxminarayan Shivhare, Smt. Sunita Shivhare and Shakuntala Shivhare
have filed S.A. No.2616/2024 against dismissal of their suit, whereas Alok Joshi
has filed S.A. No.3136/2024 against judgment of eviction passed against him.
4. S.A. No.2616/2024 has been filed on the following proposed substantial
questions of law:-
i. Whether, Ld. Court below erred in law dismissing the suit of
plaintiff when admittedly when defendant was tenant of father of
appellant?
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ii. Whether, Bhawana Shivhare who is said to have married during
the lifetime of mother of plaintiff can claim any right of the
property of Late Shri Bhogiram?
iii. Whether merely on the basis of payment of rent to Bhawana
Shivhare after death of Bhogiram it can be said that she became
landlord when the tenancy was created by Late Shri Bhogiram?
iv. Whether the landlord ship is inherited by the plaintiff after the
death of Bhogiram Shivhare being class-1 successors?
v. Whether the person claiming right through void marriage can
become a landlord after the death of original land lord?
vi. Whether the Ld. Appellate court was correct in observing that
the suit of plaintiff/appellant is hit by doctrine of resjudicata?
5. S.A. No. 3136/2024 has been filed on the following proposed substantial
questions of law:-
1- Whether the Learned First Appellate court erred in law by
passing judgment and decree dated 12.07.2023 and 02.09.2024
holding the plaintiff landlord who is not having clear title over
the suit property?
2- Whether a decree can be passed in favour of one Co-owner who
is in dispute of title with other CO-owner over the suit property?
3- Whether the Learned Court has erred in law while not
considering Ex D-3 to D-14 rent receipt and tried the suit for
eviction even though no cause of action arises as no suit could
be tried when the rent was being paid to one co-owner claiming
to be landlord?
4- Whether the finding recorded by the First Appellate Court in
regard to landlord-tenant relationship between the appellant and
the respondent is a perverse finding?
5- Whether the Learned Trial court as well as First Appellate Court
erred in law while passing judgment and decree dated
12.07.2023 and 02.09.2024 without bringing other Legal Heirs
on record even after recording objection regarding title by other
Legal Heirs of Late Bhogiram?
6- Whether the court has erred in law by not framing an issue over
pendency of suit of similar between the legal heir of deceased
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Bhogiram and appellant?
7- Whether the subsequent suit of plaintiff/respondent directly and
substantially in issue was barred by application of Section 10 of
Civil Procedure Code being preferred on same substantial issue
as earlier suit registered at RCS 591A/2017 under the same title?
8- Whether both the courts have erred in law while evaluating the
evidence on record?
6. S.13(1) of the M.P. Accommodation Control Act, 1961 (for short "the
Act") reads as under:-
"13. When tenant can get benefit of protection against eviction -
(1) On a suit or any other proceeding being instituted by a landlord on
any of the grounds referred to in Section 12 or in any appeal or any
other proceeding by a tenant against any decree or order for his
eviction, the tenant shall, within one month of the service of writ of
summons or notice of appeal or of any other proceeding, or within one
month of institution of appeal or any other proceeding by the tenant, as
the case may be, or within such further time as the Court may on an
application made to it allow in this behalf, deposit in the Court or pay
to the landlord, an amount calculated at the rate of rent at which it was
paid, for the period for which the tenant may have made default
including the period subsequent thereto up to the end of the month
previous to that in which the deposit or payment is made; and shall
thereafter continue to deposit or pay, month by month by the 15th of
each succeeding month a sum equivalent to the rent at that rate till the
decision of the suit, appeal or proceeding, as the case may be."
Thus, it is clear that on a suit or any other proceeding instituted by
landlord on any of the grounds referred to in Section 12, the tenant shall, within
one month of service of writ of summons or notice of appeal or of any other
proceeding, or within one month of institution of appeal or any other proceeding
by the tenant, as the case may be, or within such further time as the Court may
NEUTRAL CITATION NO. 2025:MPHC-GWL:6120
on an application made to it allow in this behalf, deposit in the Court or pay to
the landlord, an amount calculated at the rate of rent.
7. Admittedly, appellant Alok Joshi committed error in regularly depositing
the rent. Since rent was not deposited regularly and no application was filed for
extension of time for depositing the rent by 15 th of each succeeding month,
therefore, this Court is of considered opinion that the trial Court, as well as, first
appellate Court did not commit any mistake by passing a decree for eviction
under section 12(1)(a) of the Act.
Now the next question for consideration is as to whether appellate
Court should have passed the decree for eviction in favour of Bhavna
Shivhare or not ?
8. The aforesaid aspect shall be considered while deciding S.A.
No.2616/2024.
9. This appeal is admitted on the following substantial questions of law:-
(i) Whether, learned Court below erred in law dismissing the suit of
plaintiff when admittedly when defendant was tenant of father of
appellant?
(ii) Whether, Bhawana Shivhare who is said to have married during
the lifetime of mother of plaintiff can claim any right of the
property of Late Shri Bhogiram?
(iii) Whether merely on the basis of payment of rent to Bhawana
Shivhare after death of Bhogiram it can be said that she became
landlord when the tenancy was created by Late Shri Bhogiram?
(iv) Whether the landlord ship is inherited by the plaintiff after the
death of Bhogiram Shivhare being class-1 successors?
(v) Whether the person claiming right through void marriage can
become a landlord after the death of original land lord?
10. Heard, learned counsel for the parties.
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11. Bhavna Shivhare (PW1) in RCSA No.832A/2018 has admitted in
paragraph 2 of her cross-examination that she is second wife of Bhogiram
Shivhare, whereas name of his first wife was Bhaga and after the death of Bhaga,
she got married to Bhogiram Shivhare. Laxminarayan, Smt. Sunita Shivhare and
Smt. Shakuntala Shivhare were not party in the Civil Suit filed by Bhavna
Shivhare, therefore, they could not cross-examine her about the aforesaid
statement. However, one thing is clear. Bhavna Shivhare did not disclose the date
of her marriage and also did not disclose the date of death of Bhaga, who was the
first wife of Bhogiram Shivhare. Similarly, Laxminarayan Shivhare, who has
been examined as PW1 in RCSA No.591A/2017 has denied that Bhogiram had
two wives and claimed that he had only one wife. He expressed his ignorance
about the status of Bhavna Shivhare. He also denied that it is not in his knowledge
Bhogiram Shivhare had performed second marriage with Bhavna Shivhare. He
also expressed his ignorance that Bhavna Shivhare had also instituted a civil suit
against Alok Joshi for eviction. Thus, Laxminarayan Shivhare (PW1) in RCSA
No.591A/2017 had specifically denied that Bhavna Shivhare is second wife of
Bhogiram Shivhare.
Now the next question for consideration is as to whether Bhavna
Shivhare got married to Bhogiram Shivhare after the death of Bhaga or she
got married to him during the subsistence of first marriage ?
12. If the marriage of Bhavna Shivhare with Bhorigram Shivhare was void,
then an illegitimate wife would not get any right in the property. It is equally true
that a suit for eviction cannot be tried as a suit for title. However, for the
purposes of entitlement to seek eviction, Bhavna Shivhare was required to
establish the date of death of Bhaga and when she got married to Bhogiram
Shivhare. These two important aspects are missing in the plaint, as well as, in
her evidence. Therefore, for the purposes of this eviction suit, it is held that
NEUTRAL CITATION NO. 2025:MPHC-GWL:6120
Bhavna Shivhare had failed to prove that she got married to Bhogiram Shivhare
after the death of Bhaga. Bhavna Shivhare (PW1) in her evidence which was
recorded in RCSA No. 832A/18 has admitted in paragraph 3 that Bhogiram
Shivhare was blessed with three children from his first marriage namely
Laxminarayan Shivhare, Sunita Shivhare and Shakuntala Shivhare. Therefore, it
is clear that Laxminarayan Shivhare, Sunita Shivhare and Shakuntala Shivhare
are undisputedly the legal heirs of Bhogiram Shivhare. Thus, the appellate Court
could not have held that Bhavna Shivhare is the Bhumiswami. In paragraph 35 of
the impugned judgment, appellate Court has treated Bhavna Shivhare as
Bhumiswami.
13. S.2(b) of the Act reads as under:-
"landlord" means a person, who, for the time being, is receiving, or is
entitled to receive, the rent of any accommodation, whether on his
own account or on account of or on behalf of or for the benefit of,
any other person or as a trustee, guardian or receiver for any other
person or who would so receive the rent or be entitled to receive the
rent, if the accommodation were let to a tenant and includes every
person not being a tenant who from time to time derives title under a
landlord"
14. Since Bhavna Shivhare had pleaded that she had received rent for the
months of January and February, 2017, therefore, it appears that the appellate
Court did not commit any mistake by treating Bhavna Shivhare as landlord, but
committed a material illegality by treating her to be a Bhumiswami/owner of the
property. A landlord need not be Bhumiswami. Even otherwise, a landlord, who
is not the owner, but falls within the definition of "landlord" merely because he
had received the rent of any accommodation on account of or on behalf of or for
the benefit of another person or as a trustee, guardian or receiver for any other
person, cannot claim any title better than that of the owner. Bhavna Sharma after
receiving the rent for the month of January, 2017 and February, 2017 would
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certainly fall within the definition of landlord, but she cannot be declared as a
Bhumiswami. Even if her marriage with Bhogiram Shivhare is valid, then also, at
the most, she will get 1/4 share in the property along with Laxminarayan
Shivhare, Sunita Shivhare and Shakuntala Shivhare. Since Bhavna Shivhare has
failed to prove that she got married to Bhogiram Shivhare after the death of his
first wife, therefore, the appellate Court committed material illegality by granting
decree for eviction in her favour and by denying decree of eviction in favour of
Laxminarayan Shivhare, Sunita Shivhare and Shakuntala Shivhare, who are
undisputedly the legal heirs of Bhogiram Shivhare. Even otherwise, if the
appellate Court was of the view that Bhavna Shivhare is one of the legal heirs of
Bhogiram Shivhare, then too it could not have denied the decree for eviction in
favour of Laxminarayan Shivhare, Sunita Shivhare and Shakuntala Shivhare.
Furthermore, the principle of res judicata was wrongly applied as Laxminarayan,
Sunita and Shakuntala were not party it the suit instituted by Bhavna Shivhare.
Since this Court has already held that Bhavna Shivhare has failed to prove that
she is the legally wedded wife of Bhogiram Shivhare, therefore, once again it is
clarified that the aforesaid finding is in respect of present case only to meet out
the peculiar circumstances where three legal heirs of Bhogiram Shivhare had filed
RCSA No.591/2017 for eviction against Alok Joshi and Bhavna Shivhare who
claims herself to be one of the legal heirs of Bhogiram Shivhare had filed RCSA
No. 832/2018. Even otherwise, all the legal representatives are entitled for decree
for possession on the ground of S.12(1)(a) of the Act.
15. Considering the totality of facts and circumstances of the case, this Court is
of considered opinion that as Bhavna Shivhare has prima facie failed to establish
that she is the legally wedded wife of Bhogiram Shivhare, therefore, it is held that
even if Bhavna Shivhare received the rent for the months of January, 2017 and
Feburary, 2017, still she cannot be treated as owner and, at the most, she can be
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treated as landlord and a landlord cannot have a title better than that of the owner.
Furthermore, if Bhavna Shivhare had received the rent on behalf of Laxminarayan
Shivhare, Sunita Shivhare and Shakuntala Shivhare, she cannot claim decree for
eviction by ignoring the title of Laxminaryaan Shivhare, Sunita Shivhare and
Shakuntala Shivhare.
16. Counsel for Bhavna Shivhare has relied on the judgment passed by
Supreme Court in the case of Dhannalal Vs. Kalawatibai and others reported in
(2002)6 SCC 16, Full Bench of this Court in Harbans Singh Vs. Margrat G.
Bhingardive reported in 1990 MPLJ 112 and a co-ordinate Bench of this Court
in Ramniwas Vs. Govind Ram reported in 1980 MPCRJ 220, and submitted
that a landlord can also file a suit for eviction.
17. The aforesaid proposition of law cannot be made applicable to the present
case. The judgments on which counsel for Bhavna Shivhare has placed reliance
were passed in cases where suit was filed by landlord for eviction against the
tenant. In those cases, other legal representatives/co-owners had never
approached the Court and defence was taken by tenant that since all the co-
owners have not instituted the suit therefore suit filed by one of the co-
owners/landlord is not maintainable. Then, while rejecting the said contention of
tenant it was held that even one of the co-owners/landlord can file the suit, but in
the present case situation is peculiar and completely different. Undisputedly,
Bhogiram Shivhare was survived by Laxminaryan, Sunita and Shakuntala, who
filed RCSA No.591A/2017 against tenant Alok Joshi for eviction. Similarly,
Bhavna Shivhare had claimed herself to be the legal heir of Bhogiram Shivhare
and filed a suit for eviction which was registered as RCSA No. 832A/2018.
Therefore, against a single tenant, two suits for eviction were filed by undisputed,
as well as, disputed legal heir of Bhogiram Shivhare. Therefore, in this case, this
Court is not required to adjudicate the objection of tenant as to whether the co-
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owner or landlord can file suit for eviction or not. Here, in the present case the
disputed and undisputed legal heirs of Bhogiram Shivhare have filed two different
suits and, therefore, it is to be adjudicated as to who is entitled for decree of
possession.
18. Since legal heirs Laxminarayan, Sunita and Shakuntala are the undisputed
legal heirs of Bhogiram Shivhare and Bhavna Shivhare has failed to establish that
she got married to Bhogiram Shivhare after the death of his first wife Bhaga, this
Court is of considered opinion that appellate Court has committed material
illegality by treating Bhavna Shivhare as Bhumiswami and also committed
material illegality by rejecting the suit filed by Laxminarayan, Sunita and
Shakuntala. Accordingly, the substantial questions of law are answered as under:-
(i) Since Bhavna Shivhare has failed to point out the date of her
marriage and has also failed to point out the date of death of first wife
of Bhogiram Shivhare, therefore, for the purposes of the suit and to
adjudicate the right to execute the decree for eviction, it is held that
Bhavna Shivhare has failed to prove that she is one of the legal heirs of
Bhogiram Shivhare.
(ii) Since this Court has already held that Laxminarayan Shivhare,
Smt. Sunita Shivhare and Smt. Shakuntala Shivhare are the undisputed
legal heirs of Bhogiram Shivhare, therefore, it is held that
Laxminarayan Shivhare, Smt. Sunita Shivhare and Smt. Shakuntala
Shivhare are entitled for decree for eviction on the ground of arrears of
rent.
19. Accordingly, judgment and decree dated 02/09/2024 passed by XV District
Judge, Gwalior in RCA No. 146/2023 is modified only to the extent that Bhavna
Shivhare is not entitled to execute the decree of eviction, whereas judgment and
decree passed in RCA No.180/2023 is, hereby, set aside and it is held that Alok
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Joshi is liable to be evicted on the ground of arrears of rent and Laxminarayan
Shivhare, Smt. Sunita Shivhare and Smt. Shakuntala Shivhare are entitled to get
the decree executed against tenant Alok Joshi.
20. With aforesaid observations, S.A. No.2616/2024 and S.A. No.3136/2024
stand disposed of.
(G.S. Ahluwalia)
Judge
(and)
