[Cites 10, Cited by 0]
Madhya Pradesh High Court
Badshah vs Layika Bee on 16 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:12202
1 SA-1205-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
SECOND APPEAL No. 1205 of 2005
BADSHAH
Versus
LAYIKA BEE
Appearance:
Shri K.N.Gupta, Senior Advocate with Ms. Suhani Dhariwal, Advocate for
appellant.
None for respondent, though served.
Reserved on : 08/04/2026
Pronounced on : 16/04/2026
JUDGMENT
This second appeal, under section 100 of CPC, has been filed against
the judgment and decree dated 14/6/2005 passed by Additional District
Judge, Sironj, District Vidisha in Regular Civil Appeal No. 22A/2000, by
which the judgment and decree dated 27/7/2000 passed by Civil Judge Class
I, Sironj, District Vidisha in Civil Suit No. 5A/1996 has been reversed.
2. Appellant is tenant/defendant, who has suffered a decree of eviction
from the appellate Court.
3. Facts necessary for disposal of present appeal, in short, are that
respondent No. 1 filed a suit for eviction against the appellant under section
12(1)(a), (b), (c) of the M.P. Accommodation Control Act (for short "the
Act"). It was her case that she is the owner of a house situated in Sironj
Mohalla Daribalan (Rakabganj), Tahsil Sironj, District Vidisha. It is the case
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of plaintiff that the disputed house except one room was let out to the tenant
on monthly rent of Rs. 500/-. The tenancy was from the 1st date of the
calendar month till the last date of the said calendar month. However,
defendant was irregular in depositing the rent. From 30/10/1993, he had
stopped making payment of rent and has also sublet the same and
accordingly a registered notice dated 10/11/1995 was sent through Advocate
and the tenancy was terminated and the arrears of rent were demanded.
However, neither the arrears of rent were paid by the tenant nor the suit
premises was vacated by the defendant/ tenant and accordingly the suit was
filed for eviction as well as for recovery of rent from 30/10/1993 to
30/11/1995 to the tune of Rs.13,150/-. It was also pleaded that since the
defendant has denied the title, therefore, he is also liable to be evicted under
section 12(1)(c) of the Act.
4. Appellant/tenant filed his written statement and admitted the
existence of the house but denied the plaint averments. It was claimed that
plaintiff is not the owner of the property in dispute. He also denied the
tenancy but it was claimed that in fact the husband of the plaintiff is the
owner of the property in dispute who gave the property to the tenant in the
month of July 1993 by verbal Hiba and accordingly the said Hiba was
accepted and the possession of the house in dispute was also accepted. Wazir
Khan had also executed a notarized affidavit in this regard on 31/1/1994. It
was further pleaded that the defendant had further given the property to
Gaffar Khan by verbal Hiba dated 7/12/1994. The Hiba was also accepted by
Gaffar Khan and accordingly he was placed in possession and it was claimed
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that the property in dispute is in possession of Gaffar Khan who has not been
impleaded as party.
5. The trial court framed the issues and after recording evidence,
dismissed the suit.
6. Being aggrieved by judgment and decree passed by the trial Court,
plaintiff preferred an appeal which was allowed by the appellate Court
thereby reversing the judgment and decree passed by the trial Court.
7. Challenging the judgment and decree passed by the appellate Court,
it is submitted by counsel for appellant that the appellate Court committed a
material illegality by converting the suit for eviction into a suit for title. The
plaintiff had failed to prove the sale deed dated 27/2/1980 (Ex.P/9) executed
by Abid Khan in favor of the plaintiff and thus it is claimed that in fact
husband of the plaintiff was the owner and not the plaintiff. It is further
submitted that even otherwise the defendant has proved the execution of
oral Hiba.
8. Per contra appeal is vehemently opposed by counsel for respondent.
9. Heard learned counsel for the parties.
10. By order dated 8/1/2015, this second appeal was admitted on the
following substantial questions of law:-
"1. Whether the First Appellate Court was justified in reversing
the order of Lower Court.
2. Whether, the suit of respondent was not maintainable merely
because, the ownership of the respondent was not proved, even
though there is an evidence of the relationship of landlord and
tenant between the parties"
11. It is the case of the plaintiff that she is the owner of the property in
dispute having purchased the same by sale deed dated 27/2/1980 (Ex.P/9)
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from Aabid Khan. The defendant has relied upon the photocopy of an
affidavit purportedly executed by Wazir Khan (Ex.D/1). The defendant has
also relied upon a certificate issued by Municipal Council Sironj (Ex.D/2) to
show that the name of Wazir Khan is recorded in the record of the Municipal
Council, Sironj as Ex.D/3. The defendant has also relied upon attested copy
of Notary register of the year 1993 (Ex.D/4C) to show that Wazir Khan had
executed a Hiba in favour of defendant and the plaintiff had expressed her no
objection.
12. The defendant has examined himself as DW1, Pyare Miyan
(DW2), Wahid (DW3), Awadh Narayan (DW4), Mohammad Farid Khan
(DW5), whereas plaintiff had examined herself as PW1, Noor Miyan alias
Akhtar Miyan (PW1), Noor Jahan (PW2), Abid Khan (PW3), Zoyab Hussain
(PW4) and Hariram Sharma (PW5). It is not out of place to mention here that
initially the tenant was proceeded ex parte and the evidence of Layika Bi
(PW1) and Noor Jahan (PW2) were recorded on 8/3/1997. On the very same
day, Civil Judge Class I, Sironj passed a decree for eviction in Civil Suit No.
5A/1996. Being aggrieved by the ex parte judgment and decree passed by
the trial Court, the defendant/tenant preferred an application under Order 9
Rule 13, CPC which was registered as MJC No.10/1997 and the Civil Judge
Class I, Sironj, District Vidisha by order dated 2/8/1997 dismissed the
application filed under Order 9 Rule 13, CPC. Being aggrieved by the said
order, the respondent/tenant preferred Misc. Civil Appeal No. 65/1997 and
by order dated 5/7/1999, the appeal was allowed and the ex parte judgment
and decree passed by the trial Court was set aside and the matter was
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remanded back to the trial Court to decide the matter afresh after giving full
opportunities to the parties and accordingly the case was re-initiated and
evidence of the witnesses as mentioned above were recorded. It is not out of
place to mention here that in the first round of litigation, the plaintiff herself
had appeared as a witness, whereas in the second round of litigation she was
represented by her son Noor Miyan as power of attorney holder.
13. It is well established principle of law that eviction suit cannot be
converted into a suit for title.
14. So far as the ownership of Wazir Khan/husband of plaintiff is
concerned, except filing photocopy of the so-called affidavit given by Wazir
Khan in support of oral Hiba, no other document was relied upon by the
defendant. The photocopy of affidavit given by Wazir Khan was proved by
Badshah (DW1). Although no objection was raised by the plaintiff at the
time when the photocopy was exhibited, but the question for consideration is
as to whether the so called affidavit of Wazir Khan can be relied upon by
this Court or not ?
15. At the cost of repetition, it is once again clarified that the
defendant has relied upon a certificate dated 17/7/1997 issued by Municipal
Council Sironj (Ex.D/2) to the effect that name of Wazir Khan is recorded in
the revenue record as Ex.D/2 and the register of Municipal Council of the
year 1988-89 (Ex.D/3) to show that the name of the husband of plaintiff
namely Wazir Khan is recorded. The plaintiff has also relied upon register of
Notary of the year 1993-94, according to which Wazir Khan had executed an
affidavit acknowledging the giving of verbal Hiba to Badshah/tenant and an
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affidavit given by Layika/plaintiff thereby endorsing the verbal Hiba.
16. The question of Hiba would arise only when it is proved that
Wazir Khan was the owner. As already pointed out, plaintiff has relied upon
a registered sale deed executed by Abid Khan (PW3) in favor of the plaintiff
(Ex.P/9). It is well established principle of law that mutation entry is not a
document of title and at the most it can be used for fiscal purposes. When
the plaintiff has already relied upon a sale deed executed by Abid Khan in
her favour as Ex.P/9, therefore, even if the name of husband of plaintiff was
recorded in the records of Municipal Council, still the said record would not
make the husband of the plaintiff as the owner. Badshah (DW1) has
specifically stated that he does not know from which source Wazir Khan had
got the ownership of the house in question. He denied that after breaking
open one room he had obtained possession of the portion which was never
let out to him. He further admitted that Wazir Khan is a Pathan whereas
Badshah (DW1) is Qureshi and he admitted that he is not related to Wazir
Khan but claimed that he was having personal relationships since his
predecessors. According to Badshah, Hiba was done in the month of July
1993, but it was reduced to writing after 6 months.
17. Defendant has examined Pyare Mia (DW2) as an attesting witness
of the affidavit. In cross-examination, he admitted that he is the cousin
brother of Badshah (DW1). In paragraph 2, he claimed that the contents of
documents were not typed, but they were in handwriting. The blank papers
were brought by Wazir Khan and the contents were written by an Advocate.
However, so-called Hibanama in the form of affidavit (Ex.D/1) is a typed
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document and not handwritten. Therefore, the evidence of Pyare Miyan
(DW2) that affidavit was executed in his presence is false and he cannot be
said to be a reliable attesting witness.
18. Wahid (DW3) has not stated anything about so called oral
Hibanama (Ex.D/1) executed by Wazir Khan in favor of Badshah (DW1).
19. Awadh Narayan Srivastava (DW4) is the Notary who had
notarized the affidavit (Ex.D/1) and he has also proved the entry of his
register (Ex.D/4-C). In cross-examination, this witness has specifically
admitted that Layika Bi /plaintiff was not known to him and he cannot
disclose that who had identified Wazir Khan and Layika/ plaintiff. He further
admitted that the entry made in column 4 to 10 of his register are in the
handwriting of his clerk whose name was Zafar Mohammad Khan and the
words "thumb impression of Layika" are also in the handwriting of Mohd.
Zafar Khan. This witness was also not in a position to disclose that at what
place the affidavits were executed. He further admitted that in the
affidavit/oral Hibanama (Ex.D/1), map is annexed which too was notarized
by him and in that map it was mentioned that the owner of property in
dispute is Layika Bi/ plaintiff and name of purchaser was mentioned as
Badshah (DW1)/ defendant. He further admitted that generally he does not
notarize the sale deeds. He further claimed that the map is part of Hibanama
(Ex.D/1), but he was not in a position to say as to whether that map was
prepared for executing sale deed or not. He also stated that after going
through the contents of map, he cannot say that the map was prepared for the
purposes of sale, but he claimed that the map was brought along with
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Hibanama (Ex.D/1). He further admitted that on the map, the names of owner
and purchasers were mentioned.
20. Mohammad Farid Khan (DW5) has also spoken about Hibanama
purportedly executed by Badshah (DW1) in favor of Gaffar Khan.
Mohammad Farid Khan is the son of Gaffar Khan in whose favor it is
pleaded by defendant No.1 that he had executed the Hiba. This witness has
not stated that the oral Hiba done by Badshah (Ex.D/1) was ever accepted by
his father Gaffar Khan. He merely stated that Gaffar Khan is residing for last
five and a half years and because of Hiba, he is the owner and prior to five
and a half years, the portion of the house was in possession of Badshah
Miyan (DW1). In order to prove Hiba, three ingredients are required - (i)
intention to gift the property; (ii) acceptance of the same and (iii) delivery of
actual possession. But if the evidence of Mohammad Farid Khan (DW5) is
considered, then acceptance on the part of Gaffar Khan is not mentioned.
Delivery of actual possession was also not pleaded. In paragraph 4 of his
cross examination, he denied for want of knowledge that his father had
another house. In paragraph 8, he further stated that Badshah (DW1) had
given a written Hiba to his father Gaffar, but there is nothing on record to
suggest that any written Hiba was given by Badshah (DW1) to Gaffar Khan.
21. From the evidence of witnesses, it is clear that the map which was
attached to the oral affidavit/Hibanama (Ex.D/1), name of owner of property
was mentioned as Layika Bi/ plaintiff, and name of intending purchaser was
mentioned as Badshah Miyan (DW1)/ defendant. This map has also been
produced and proved by Badshah Miyan (DW1). Avadh Narayan Srivastava
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(DW4) has admitted that this map which is part of Hibanama was brought to
him by the defendant. Defendant has not clarified as to why name of Layika
Bi/ plaintiff is mentioned as owner and why the name of defendant/Badshah
Miyan is mentioned as purchaser. At the cost of repetition, it is once again
clarified that defendant has not filed any document to show the title of Wazir
Khan except entry in the register of Municipal Council, Sironj district,
Vidisha. Therefore, it is clear that in fact Layika/ plaintiff is the owner of the
property in dispute and not Wazir Khan. As already pointed out, the suit for
eviction cannot be converted into a suit for title. Although the question of
title was raised by the respondent/ tenant, therefore, for the purpose of
considering his defence, the aforesaid aspect with regard to title of parties
has been considered, but in view of the aforementioned discussion, it is clear
that in fact plaintiff Layika Bi is owner and Badshah Miyan was earlier
intending to purchase the property, but later on when he could not succeed,
then he took a defence of Hibanama. Whether Wazir Khan is alive or not is
not known. Wazir Khan has not been examined. If Wazir Khan has already
expired, then somebody else should have been examined who could identify
the signatures of Wazir Khan on Hibanama, even that was not done. But one
thing is clear that since Wazir Khan was not the owner, then even if
Hibanama has been executed by Wazir Khan, still it will not confer any right
or title on Badshah Miyan (DW1). Since Badshah Miyan was not the owner
of property in dispute, therefore he cannot further gift the property to Gaffar
Khan by oral Hiba. However, as already pointed out Mohd. Farid Khan
(DW5) has claimed that written Hibanama was executed by Badshah Miyan
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in favor of his father Gaffar Khan, but no such document has been placed on
record. Under these circumstances it is clear that in fact, plaintiff Layika Bi is
the owner of property in dispute and by claiming himself to be owner,
defendant has denied the title of Layika Bi/ plaintiff.
22. Accordingly, plaintiff is entitled for decree of eviction under
section 12(1)(c) of the Act on the ground of denial of title.
23. So far as the arrears of rent is concerned, admittedly defendant/
tenant has not paid any rent to plaintiff. Thus, he has not complied with the
provisions of section 13(1) of the Act. The Supreme Court in the case of
Asha Rani Gupta Vs. Vineet Kumar reported in 2022 SCC Online SC 829
has held that even if title of plaintiff is denied by the tenant, still he is
required to comply with the provisions of section 13(1) of the Act. Since rent
has not been paid by defendant Badshah Miyan, therefore, plaintiff Layika Bi
is also entitled for decree of eviction under section 12(1)(a) of the Act.
24. So far as the decree under section 12(1)(b) of the Act on the
ground of subletting is concerned, it is admitted position that defendant has
inducted Gaffar Khan and therefore it is clear that plaintiff has also
successfully proved the averment of subletting.
25. Under these circumstances, this Court is of considered opinion
that the trial Court committed material illegality by holding that the landlord-
tenant relationship did not exist between the parties. In fact, plaintiff Layika
Bi is the owner of property in dispute. Accordingly, the appellate Court did
not commit any mistake by reversing the judgment and decree passed by the
trial Court and by passing a decree for eviction against the appellant. Even
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otherwise, this Court, in exercise of power under section 100 of CPC, cannot
interfere with the findings of fact until and unless they are shown to be
perverse. This Court has already considered the merits of the case
independently and has found that findings recorded by the appellate Court
are in accordance with law. Accordingly, both the substantial questions of
law are answered against the appellants.
26. Ex consequenti, judgment and decree dated 14/6/2005 passed by
Additional District Judge, Sironj, District Vidisha in Regular Civil Appeal
No. 22A/2000 is hereby affirmed.
27. Appeal fails and is hereby dismissed.
28. In the light of the judgment passed by the Supreme Court in the
case of Periyammal (Dead) Through Lrs & others vs. V. Rajamani and
another, decided on 06/03/2025 in Civil Appeal Nos. 3640-3642 of 2025 , it
is directed that if in case an application for eviction is filed, then the
Executing Court shall decide the execution proceedings positively within a
period of six months and shall not delay the execution proceedings
unnecessarily because much time has already been spent/wasted in deciding
the suit filed by the plaintiff/appellant.
29. Decree be drawn accordingly.
(G. S. AHLUWALIA)
JUDGE
(and)
