Atul Kumar Jain vs Smt. Deepa Mathur and Others

Hon. Shri Justice Anil Kumar Sharma

This Second Appeal has been filed u/s 100 of C.P.C. by the appellant/plaintiff against the judgment and decree dated 27.6.2007 passed in Civil Appeal No. 37-A/2006 by learned District Judge, Gwalior reversing the judgment and decree dated 29.9.2006 passed in Civil Suit No. 175-A/03 by learned 8th Civil Judge, Class II, Gwalior, whereby suit for eviction filed by appellant/plaintiff has been decreed in favour of defendants.

In this appeal, the following substantial questions of law have been framed by order dated 26.04.2011.

(1) Whether the judgment and decree passed by learned lower appellate Court is contrary to law laid down by the Full Bench of this Court in the matter of Harbans Singh (supra)?

(2) Whether the lower appellate Court has erred in law in dismissing the suit of plaintiff on the ground which was not taken by the tenants in appeal memo?

Regarding substantial question of law No. 1:-

Learned Lower appellate Court vide impugned judgment and decree dated 27.6.2007 has allowed the appeal filed by the defendants by holding that no rent is due and the tenanted premises was purchased by plaintiff/appellant and respondent No. 3 Padam Chand Jain (defendant No. 4 in original suit) and they have purchased separate portion by one sale deed and defendants are living in the portion purchased by both of them, therefore, the suit for eviction filed by only Atul Kumar Jain, plaintiff is not maintainable, hence the ground of Section 12(1)(a)(b)(f)) of M.P. Accommodation Control Act (hereinafter referred to as ''Accommodation Control Act'' ) are not at all made out.

Learned counsel for the appellant has relied on the basis of a Full Bench decision of this Court in the matter of Harbans Singh (Lt. Col.) Vs. Smt. Margret G. Bhingardive (1990 JLJ 97), in which it has been held that co-owner is an owner of entire property as sole owner and suit for eviction by a co-owner is maintainable.

It has been submitted by the learned counsel for the appellant that document Exhibit P-1 shows that property tax has been deposited by the appellant and notices for eviction has also been given by the appellant. While passing the impugned judgment, learned Lower Appellate Court has not considered the judgment passed in Harbans Singh''s case (supra). Learned trial Court in paragraph 16 of its judgment held on the basis of admissions of defendant Deepa Mathur (DW-1) that relationship of landlord and tenant between plaintiff and defendants after purchase of suit house by the plaintiff from Vijay Singh Rao. She has also admitted the payment of rent to Atul and Padam Chand Jain @ 62.50 rupees per month. Defendant Smt. Sushma Mathur (DW-2) has also admitted that suit property belongs to Vijay Singh alone and they have become tenant of Atul Jain and Padam 3 Second Appeal No. 603/2007 Chand Jain after they have purchased the property in the year 1980 from Vijay Singh. Before the trial Court, no objection regarding suit being incompetency as it it has been filed by only one owner of the tenanted property has been raised by the defendants.

Learned Lower Appellate Court has not considered the judgment passed by the Full Bench of this Court in the matter of Harbans Singh (supra) and failed to consider the fact that co-owner Padam Chand Jain is also tenanted in the suit and property tax of the suit house has been paid by appellant himself for both the portions and it is impossible to get one part of the tenanted house vacated for the need of the appellant. Defendant No. 4, who is respondent No. 3 here in the appeal has not appeared before the trial Court, therefore, it shall be presumed that he has satisfied the action taken by his brother Atul Kumar Jain, the appellant/plaintiff. Therefore, the learned lower appellate Court has not justified in giving a finding of non-maintainability of suit by one of the co-owners of the suit house, therefore, finding of the learned trial Court is contrary to law laid down by the Full Bench of this Court in the matter of Harbans Singh(supra). Therefore, substantial question of law No. 1 is answered in favour of appellant/plaintiff.

Regarding substantial question of law No. 2

The defendants have not taken objection regarding non-maintainability of suit by one of the co-owners either before trial Court or before the learned Lower Appellate Court. It has been held that the finding of learned lower appellate Court regarding maintainability of suit by one of the co-owners is contrary to law laid down by the Full Bench of this Court in the matter of Harbans Singh (supra). Therefore, in the absence of any objection or ground in appeal memo, the learned Lower Appellate Court has erred in law in dismissing the suit of plaintiff on the ground which was not taken by the tenants in the appeal memo. Therefore, substantial question of law No. 2 is also decided in favour of appellant.

Consequently, looking to the findings of both substantial questions of law, the judgment passed by the learned Lower Appellate Court is not sustainable in law. Therefore, appeal filed by the appellant is allowed. The judgment and decree passed by the Lower Appellate Court are set-aside and the judgment and decree passed by the learned trial Court are affirmed. However, respondents are given two months time to vacate the suit premises.

The respondents/tenants shall bear their own costs of this appeal and shall also pay the cost of appellant. Counsel fee be calculated according to rules, if certified.