Mukesh Kumar Kushwaha vs M/S Piparia Enterprises And Another

The present appeal under Section 100 CPC is being preferred by the appellant against the judgment and decree dated 28/02/2004 passed by III

Additional District Judge, Gwalior in Civil Appeal No.16/2002 whereby the judgment and decree dated 30/05/2002 passed by V Civil Judge Class-I in

Civil Suit No.121-A/2000 has been reversed and suit preferred by the appellant/ plaintiff has been dismissed.

Precisely stated facts of the case for adjudication are that appellant/ plaintiff has filed a suit for eviction against M/s Pipariya Enterprises through its

partners (respondent No.1 herein). It is stated in the plaint that respondent No.1-defendant is a tenant in the shop owned by the appellant/ plaintiff @

Rs.450 per month. It is also stated that defendant executed the rent note on 28/03/1986 on behalf of other parties as a power of attorney holder. As

per the submissions, defendant failed to pay the rent from 01/04/1991 inspite of the written notice dated 18/10/1991 therefore, it is further stated that

the suit shop is required for the business of General Merchant/ Cosmetic and appellant/plaintiff is not having any other suitable and alternative shop for

this purpose. Appellant/ plaintiff also stated in the plaint that he filed a suit against one tenant Bhagwan Das also and the said suit was decreed and

after having possession of the shop, appellant/plaintiff started business in the name and style of Shivam Furniture and General Store, but that shop is

not sufficient in space to carry on business therefore, he is not able to do his business in systematic manner and is not able to display his

goods/products properly therefore, suit shop was required bonafide for his business.

Other pleading in respect of causing nuisance in the disputed shop was also raised by the plaintiff wherein defendant constructed the overhead

water tank causing leakage and seepage causing nuisance. Plea of sub-letting the tenanted premise was also raised by the plaintiff besides other

pleadings.

Respondent No.3 remained exparte since beginning whereas respondent No.2 went exparte at the time of evidence. Effectively suit was contested

by respondent No.1.

Defendant No.1 submitted its written statement and denied the facts and pleading of the plaint. Defendant No.1 denied execution of the rent note

dated 28/03/1986. In the written statement, it was stated that the suit premises is rented to M/s Piparia Enterprises and it is wrong to say that

defendant is a tenant and M/s Piparia Enterprises is a registered firm. Defendant also denied the bonafide need of the plaintiff and stated that plaintiff

is having many houses and shops in the city of Gwalior and has no bonafide requirement of the disputed shop. It was stated that plaintiff is a 'A' Class

contractor and paying income tax and the suit is filed with the intention to harass defendants. Other grounds of the plaint were also denied by the

defendants.

The trial Court after considering the respective pleadings meandered through different amendments, framed as many as 15 issues for adjudication

of the controversy. Evidence was led by the parties in support of their submissions.

Trial Court after considering the pleadings, evidence (documentary as well as oral) and submissions of the parties, decreed the suit on the basis of

grounds available under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (hereinafter referred as the “Actâ€) and mesne profit

were directed to be paid.

Challenging the judgment and decree passed by the trial Court, respondent No.1 preferred first appeal under Section 96 of CPC before first

Appellate Court which in turn reversed the judgment and decree passed by respondent No.1/tenant/defendant. According to the lower appellate Court,

plaintiff could not prove his case under Section 12(1)(f) of the Act because he could not establish his title as owner of the disputed property. Plea of

plaintiff/ landlord in respect of denial of title allegedly by the defendant was also rejected. According to the lower Appellate Court, defendant No.1 has

not denied the title of the landlord/ plaintiff substantially.

Therefore, landlord/ appellant/ plaintiff has filed the instant appeal under Section 100 CPC against the judgment and decree passed by the First

Appellate Court on 28/02/2004. The appeal was admitted by this Court on 23/02/2005 on following substantial questions of law:-

“(1) Whether the Court below has erred in refusing to pass a decree under Section 12(1)

(b) of the M.P. Accommodation Control Act by holding that the plaintiff has failed to prove his title to the suit accommodation while arriving at this

finding the Court has acted as a Rationing Authority ?

(2) Whether the Court below has erred in refusing to pass a decree in favour of the appellant-plaintiff under Section 12(1)(c) of the M.P.

Accommodation Control Act when the defendant has denied the title of the plaintiff ?â€​

It appears that while framing substantial question of law No.1, trial Court referred the decree under Section 12(1)(b) of the Act which according

to the appellant ought to have been corrected because according to appellant, the decree was passed by the trial Court on the ground available under

Section 12(1)(f) of the Act and that decree has been set aside by the First Appellate Court, therefore, an application under Section 100(5) of CPC

was filed by the appellant through his counsel and prayed for formulation of the substantial question of law in light of the eviction under section 12(1)

(f) of the Act. Substantial question of law was also proposed in respect of section 12(1)(f) of the Act in respect of said application. The said

application was considered on dated 13/01/2010 and dismissed as withdrawn because this Court held that as per the counsel for the appellant himself,

substantial question of law No.1 has been wrongly mentioned as Section 12(1)(b) of the Act in place of Section 12(1)(f) of the Act and therefore, that

fact will be taken note of at the time of final hearing.

Both the parties advanced their arguments extensively. According to learned Senior counsel appearing for the appellant, First Appellate Court

erred in passing the impugned judgment and decree whereby well reasoned judgment and decree passed by the trial Court has been set aside. It is

submitted that the rent agreement dated 28/03/1986 (Ex.P-3) signed by Dr. Harish Chandra Pipariya as power of attorney holder on behalf of other

defendants. The said rent agreement categorically refers the appellant/ plaintiff Mukesh Kumar Kushwaha as owner of the property. The outer

boundaries of the property mentioned at page No.5 of the rent agreement also denotes the appellant as owner of the disputed property therefore, as

per Section 116 of Indian Evidence Act, tenant is estopped to raise doubt or deny the title of the landlord.

Learned senior counsel also refers the notice sent by the Office of Municipal Corporation, Gwalior (Mal Vibhag) regarding property tax. The said

notice of 1978 (Ex.P-1) and 1983 (Ex.P-2) also support the case of the appellant. The disputed property was received by the plaintiff under partition

and therefore, those properties came into the ownership and possession of the plaintiff. The trial Court has dealt with the said aspect in detail while

framing the issues in this regard and thereafter came to the conclusion about the ownership of suit premises. The trial Court considered the said

aspect of ownership while deciding the issue in respect of ground available under Section 12(1)(f) of the Act.

It is further submitted that the evidence led by the appellant/ plaintiff remained un-rebutted and in cross-examination also, submissions of the

appellant remained intact. In the cross-examination, defendant No.1 himself has accepted that in Case No.66-A/1988 (Mukesh Kumar Vs.

Bhagwandas) before II Civil Judge Class-II, Gwalior vide statement is Ex.P-29 about the ownership of premises as owned by apppellant. In the said

statement, defendant Dr. Harish Chandra Pipariya admitted that the shop run by him, was given under ownership of plaintiff and accepted the fact of

partition. The said admission corroborates the rent agreement dated 28/03/1986 (Ex.P-3). The elaborated findings were overlooked by the appellate

Court in a very casual manner and, passed the impugned judgment which deserves to be set aside.

The lower Appellate Court also erred in ignoring the rent receipt (Ex.P-21,41, 42, 43 and 47 to 62), issued by the plaintiff in the name of defendant

and this fact also supported the case of the appellant. He relied upon the judgments of the Hon'ble Supreme Court in the cases of the Dilbagrai

Pubjabi Vs.Sharad Chandra, AIR 1988 SC 1858, Anar Devi Vs. Nathuram, 1994 JLJ 486 (SC) and Santosh Kumar Jain Vs. Shambhulal Krishna

Kumar Suhane, AIR 1993 MP 46 . In support of his submissions in respect of Section 116 of the Indian Evidence Act, he relied upon the judgment of

the Full Bench of this Court in the cases of Harbans Singh (Lt. Col.) Vs. Smt. Margret G. Bhingardive, 1990 JLJ 97 and Ram Vishal Vs. Dwarka

Prasad Jaiswal, 2010 (1) MPLJ 214 to contend that title of the landlord does not require specific investigation in a suit for eviction of tenant.

It is further submitted by the learned Senior counsel that plaintiff proved his bonafide requirement by pleading and proving his case. It was

specifically pleaded by the plaintiff that he has only two shops; one with the defendant and another with other co-tenant Bhagwandas to start business.

During pendency of the suit, eviction of the shop by the Bhagwandas decreed and possession was received by the plaintiff in which plaintiff started

the business of General Store and Molded Furniture, in the name of Shivram Furniture and for expansion, his bonafide requirement subsisted. He

further submitted that bonafide requirement of the plaintiff cannot be adjudged by the defendants on the basis of eviction of shop rendering vacant

after filing of the suit for eviction against the defendants because plaintiff requires expansion and better place by integrating the shops. He relied upon

the judgments of this Court in the case of Sujata Sarkar (Smt.) Vs. Anil Kumar Duttani, ILR 2009 (MP) 1374 and Pramila Nahar (Smt.) Vs.

Devendra Kumar Gujarati, 2004 (II) MPWN 86.

It is further submitted that appellate Court erred in rejecting the prayer of appellant/ plaintiff in respect of Section 12(1)(c) of the Act. According

to him, defendants have denied the title of the landlord in written statement therefore, he was liable to be evicted on the ground of Section 12(1)(c) of

the Act (denial by the trial Court). He relied upon the judgments of the Hon'ble Apex Court in the case of Majati Subbarao Vs. V.K. Krishna Rao

(deceased) by Lrs., AIR 1989 SC 2187 and Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, 2002 (2) JLJ 312.

Regarding substantial question No.1, learned Senior Advocate clarified that looking to the order dated 13/08/2010 passed by this Court, substantial

question of law No.1 is ought to to be heard and decided in light of Section 12 (1)(f) of the Act instead of Section 12(1)(b) of the Act because issue

regarding Section 12(1)(b) was already decided by the trial Court and confirmed by the appellate Court and therefore, no occasion existed for the said

substantial question of law to be agitated. Substantial question of law No.1 was only in respect of Section 12(1)(f) of the Act.

Per contra, learned Senior counsel for the respondent No.1 opposed the prayer made by the appellant and prayed for dismissal of the appeal.

According to learned Senior counsel appearing for the respondents, since the substantial question of law was not framed in respect of Section 12(1)(f)

of the Act therefore, argument of the appellant in respect of Section 12(1)(f) of the Act cannot be taken into consideration.

It is further submitted that even if it is assumed that substantial question of law No.1 was in respect of Section 12(1)(f) of the Act even then, the

trial Court rightly passed the judgment and decree whereby findings recorded by the trial Court were set aside in respect of Section 12(1)(f) of the

Act because plaintiff could not prove his case in respect of bonafide requirement. For seeking eviction, landlord has not only to establish that he

required bonafide, accommodation let out to the tenant but, he must also show that he has no other suitable/non-residential accommodation for his

home or his occupation. Plaintiff has not disclosed the size of the shop which got vacated from the Bhagwandas and upon cross-examination, he could

not establish the case. He relied upon the judgments of this Court in the case of Raj Kumar Jain Vs. Smt. Usha Mukhariya, 2009 (1) MPLJ 343,

Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, AIR 2002 SC 1264, Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 and Hakimuddin Saifi

Vs. Prem Narayan Barchhiha, 1998 (1) MPLJ 203.

Learned Senior counsel also vehemently urged that plaintiff could not establish his ownership vis a vis suit premises. Plaintiff got derivative title by

virtue of so call partition but failed to prove the partition and failed to produce his father for cross-examination and therefore, case of the plaintiff

deserves dismissal because plaintiff failed to prove his ownership through his predecessors in title. He relied upon the judgment of this Court in the

case of Sardar Habans Singh Vs. Shailesh Chand Gupta, 2001(1) MPHT 501.

Regarding section 12(1)(c) of the Act, it is submitted on behalf of the respondents that before First Appellate Court, the appellant never challenged

the findings given by the trial Court by filing cross-objection. If plaintiff was aggrieved by the findings of the trial Court wherein decree under Section

12(1)(c) of the Act was negatived then plaintiff ought to have filed the cross-objection in the first appeal preferred by the respondents, then only

plaintiff would have been in position to challenge the findings of the trial court in respect of Section 12(1)(c) of the act regarding denial of title. He

relied upon the judgments of this Court in the case of Anil Tiwari and Others Vs. Saheb Singh and Others, 2000 (1) JLJ 138, Laxman Tatyaba

Kankate and Another Vs. Taramati Harishchandra Dhatrak, 2011 (1) MPLJ 317 and Dayal Das (dead) through Lrs. Vs. Rajendra Prasad Gautam,

2012 (4) MPLJ 152. He prayed for dismissal of the appeal.

Heard the learned counsel for the parties at length and perused the record.

This Court while admitting the appeal on 23/02/2005, framed following substantial questions of law:-

“(1) Whether the Court below has erred in refusing to pass a decree under Section 12(1) (b) of the M.P. Accommodation Control Act by holding

that the plaintiff has failed to prove his title to the suit accommodation while arriving at this finding the Court has acted as a Rationing Authority ?

(2) Whether the Court below has erred in refusing to pass a decree in favour of the appellant-plaintiff under Section 12(1)(c) of the M.P.

Accommodation Control Act when the defendant has denied the title of the plaintiff ?â€​

That perusal of the substantial question of law No.1 at the first blush indicates that it was framed in respect of Section 12(1)(b) of the Act

whereas as per the submissions of the appellants, it ought to have been under Section 12(1)(f) of the Act. Since this question has material bearing over

the fate of the controversy therefore, it is decided at the first instance. The facts of the case indicates that issues were framed by the trial Court in

respect of Section 12(1)(a)(b)(c) and (f) of the Act mainly in which other issues were negatived except Section 12(1)(f) of the Act and decree of

eviction was passed in favour of plaintiff/ landlord by the trial Court. Later on, first appeal was preferred by the defendant/ respondent No.1/ tenant.

Admittedly, appeal was against the eviction decree under Section 12(1)(f) of the Act in which the First Appellate Court reversed the decree passed by

the trial Court and allowed the appeal of the defendants, thus rendering the suit as dismissed holistically. Appellant/ landlord had the occasion to file

the appeal and therefore, independently he had to challenge the findings given by the First Appellate Court while allowing the appeal of the tenant and

therefore, second appeal had to be for re-affirmation of the judgment passed by the trial Court under Section 12(1)(f) of the Act. Ground under

Section 12(1)(b) of the Act had already eclipsed by the judgment of the trial Court and landlord/ appellant never challenged the said findings of the trial

Court in respect of Section 12(1)(b) of the Act, therefore, it automatically merged into the First Appellate Court order and now appellant had no

occasion or right to challenge it before this Court.

Besides that, appellant/plaintiff referred this alleged typographical error by filing application under Section 100(5) of the Act vide I.A.

No.12084/2010. The said order dated 13/08/2010 passed by this Court is reproduced as under:-

“I.A. No.12084/2010 is dismissed as withdrawn, because as per learned counsel for appellant himself in the substantial question of law No.1,

Section 12(1)(b) has been wrongly mentioned in place of Section 12(1)(f) of the M.P. Accommodation Control Act, 1961. This will be taken note of at

the time of final hearingâ€​

The tenor and texture of the said order (biparte order) reveals that this Court impliedly accepted the submissions of the appellant and assured to

take note of said fact at the time of final hearing. Therefore, it cannot be assumed by any stretch of imagination that substantial question of law No.1

was in respect of Section 12(1)(b) of the Act. It was in respect of Section 12(1)(f) of the Act and therefore, it would be dealt with accordingly. Both

the counsel have already advanced arguments on applicability of Section 12(1)(f) of the Act.

The trial Court has framed the issue No.1 in respect of relationship of landlord-tenant between the parties as issue No.1. While dealing with the

said issue, the trial Court has elaborately discussed the documents rent note/ rent agreement dated 28/03/1986 (Ex.P-3) and the evidence of the

witness who signed it as witness as well as the evidence of plaintiff-Mukesh Kushwaha (PW-1). Dr. Harish Chandra has signed the document as

power of attorney holder and the said power of attorney has placed as Ex.P-5. The said rent note/ rent agreement categorically accepts the plaintiff

as owner of the disputed property. The said rent note was accepted in the evidence as secondary evidence (Ex.P-5) and the same was affirmed by

the order of the High Court in the revisional jurisdiction. Once the power of attorney holder signed the document and accepted the status of the

landlord as owner then he cannot resign from the said fact as per Section 116 of the Indian Evidence Act. Section 116 of the Indian Evidence Act

reads as under:-

Estoppel of tenant; and of licensee of person in possession.â€"No tenant of immovable property, or person claiming through such tenant, shall,

during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such

immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to

deny that such person had a title to such possession at the time when such licence was given.

The said signature was accepted by respondent No.1-Dr. Harisha Chandra. Although he tries to take some technical defects that the firm was

registered later on in 1986 and the power of attorney was taken later on but those aspects have been considered by the trial Court and thereafter,

came to the conclusion about the fact of ownership of the suit premise of the plaintiff.

Manoharlal Gulathi (PW-3), who happens to be the witness of Ex.P-3 rent note also endorsed and affirmed the signature of Dr. Harish Chandra

over the documents. All the objections raised by the defendants through submissions, have been categorically dealt with by the trial Court while

deciding issue No.1. Infact, defendants have never raised the doubt about the fact that they are not the tenant of the plaintiff in categorical terms but

in a very articulate manner evaded the said pleadings of the plaintiff.

Another important aspect in the matter of admission of Dr. Harish Chandra Piparia before II Civil Judge Class-II, Gwalior in Civil Suit No.66-

A/1888 where defendant/respondent No.1 himself admitted about the ownership of the plaintiff. The Municipal Corporation documents Ex.P-1 and P-

2 (property tax receipts) also indicates that plaintiff was the owner of the suit property.

The Hon'ble Apex Court in the case of Dilbagraj Pubjabi Vs. Sharad Chandra (supra) has held that once the plaintiff produce the counter file

receipt signed by the plaintiff in which plaintiff was described as owner of the property then ownership of the landlord cannot be put to doubt.

Similarly, in the case of Anar Devi Vs. Nathuram (supra), the Hon'ble Apex Court has held as under:-

Indeed, the said doctrine of tenant's estoppel, finds statutory recognition in section

116 of the Indian Evidence Act, 1872, for short 'the Evidence Act', in that, it states that no tenant of immovable property, or person claiming through

such tenant, shall during the continuance of the the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy,

a title to such immovable property.

This Court in Sri Ram Pasircha Vs. Jagannath and Others, AIR 1976 SC 2355, has also ruled that in a suit for eviction by landlord, the tenant is

estopped from questioning the title of the landlord because of Section 116 of the Act. The Judicial Committee in Krishna Vs. Barabani Coal Concern

Ltd., AIR 1937 PC 251, when had occasion to examine the contention based on the words 'at the beginning of the tenancy' in Section 116 of the

Evidence Act, pronounced that they do not give a ground for a person already in possession of land becoming tenant of another, to contend that there

is no estoppel against his denying his subsequent lessor's title. Eversince, the accepted position is that section 116 of Evidence Act applies and estops

even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as

his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by

accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to

be evicted by the latter on a permitted ground.â€​

Similarly, in the case of Santosh Kumar Jain Vs. Shambhulal Krishna Kumar Suhane (supra), this Court held even to the extent that if the tenant is

injuncted on the joint family premises and partition took place and suit for eviction for bonafide need is filed then failure of partition cannot be

challenged for partition. Question of title cannot be determined in the eviction suit of landlord and tenant. In present case, even if the defendant was

earlier paying rent to the father of the plaintiff- Ram Singh but after execution of the rent agreement dated 28/03/1986 (Ex.P-3) he started paying rent

to the plaintiff then he is estoped to raise such plea, later on, creating doubt over the landlord as plaintiff.

Similarly, the Full Bench of this Court in the case of Harbans Singh (Lt. Col.) Vs. Smt. Margret G. Bhingardive (supra) has held that in a suit

between the landlord and tenant, the question of the title to the (leased) property is irrelevant.

Similarly, this Court in the case of Rama Rao and Others Vs. Shantibai and Others, 1979 JLJ 385, has discussed the manner of judgment in appeal

and held as under:-

“Where the appellate Court sets aside the judgment passed by the trial Court, three things must appear from the judgment of the appellate Court -

(i) That it applied its mind to the reasons given by the trial Court;

(ii) That it was present to its mind that the trial Court had the advantage of seeing and hearing the witnesses which the appellate Court itself did not

have ; and

(iii) disagreeing with the trial Court.

If this is not done, it must be said that

the order of the appellate Court is contrary to law. The appellate Court has the undoubted jurisdiction to re-appreciate the oral evidence and reach a

finding contrary to that arrived at by the trial Court but this it can do only if its order satisfies the above three conditions. AIR 1951 SC 120, AIR 1960

SC 115, AIR 1929 PC 15, 1947 AC 484 and AIR 1949 PC 32 relied on. AIR 1972 SC 1716, AIR 1941 Mad. 393, AIR 1972 Orissa 28, AIR 1975

Patna 192 and 1960 JLJ 348 referred to.â€​

Therefore, appellant/plaintiff proved the case regarding ownership of the suit premise in categorical terms and the Appellate Court erred in coming

to the conclusion about the findings of the trial Court in a very casual and slip shod manner. It is relevant to refer the guidance of the Hon'ble Apex

Court in the case of Santosh Hazari Vs. Purushottam Tiwari, AIR 2001SC 965, wherein the Hon'ble Apex Court has enlightened the appellate Courts

about the manner in which the first appeal is to be heard and decided.

Therefore, plaintiff not only proved his ownership but also his bonafide requirement because the availability of one shop adjacent to the disputed

shop cannot render the bonafide requirement nugatory, rather it substantiates the cause, because in this competitive world, every landlord wants to get

the best use of his premises and if the best use is possible by amalgamation of two shops and by creating one shop then the same is permissible and it

cannot wash away the plea of bonafide requirement or availability of alternative accommodation. Invariably, availability of alternative accommodation

just adjacent to the disputed shop strengthens the case of the landlord rather than the tenant if requirement is for commercial purpose on large scale.

In the case of R.C. Tamrakar and another Vs. Nidi Lekha 2001 (8) SCC 431, it has been held by the apex Court that landlord is the best judge of his

requirement in deciding the question of bonafide requirement. It is unnecessary to make an endeavour as to how the landlord adjust himself

Here in the present case, another shop rendered vacant during pendency of suit and that fact has been specifically pleaded by the plaintiff by way

of amended pleadings. The eviction shop was just adjacent to the suit shop and plaintiff has proved that he requires the shop for starting the business

of General Store/ Cosmetic. Although in evidence, he has used the word, 'Furniture Shop' but connotation/ purpose is more or less same and it is

possible that with the passage of time, plaintiff thought of pursuing the business of Furniture also, alongwith the Cosmetic and General Store. Items

found in General Store/ Cosmetic and Furniture are more or less species of same genus. Therefore, on such flimsy pretext, case of the plaintiff cannot

pale into oblivion. Once, the bonafide requirement is pleaded and proved by the evidence of the plaintiff as well as one other witness who purchased

the goods from plaintiff's shop then Court cannot sit with microscopic lenses to sort out the exact bonafide requirement vis a vis trends of the market.

It is better that it be left to the discretion of the landlord, once plaintiffs establishes his bonafide requirement and non-availability of any

suitable/alternative accommodation in the vicinity. Therefore, the trial Court rightly established the landlord-tenant relationship by establishing the

ownership of the landlord and his bonafide requirement for business and because of non-availability of any alternative accommodation in the municipal

limits of Greater Gwalior. The Appellate Court erred in reversing the findings recorded by the trial Court and passed the judgment and decree contrary

to the law and the legal principles as referred above. Therefore, appellant/plaintiff/landlord deserves to get the decree of eviction against the

respondent/defendant/tenant under Section 12(1)(f) of the Act.

Substantial question of law No.1 is answered accordingly.

Regarding substantial question of law No.2. The said question was partly framed by the trial Court under Section 12(1)(c) of the Act without

framing issue No.10 in this regard. No issue was framed specifically in respect of denial of the title by the defendant-tenant. The Hon'ble Apex Court

in the case of Sheela and Others Vs. Firm Prahlad Rai Prem Prakash (supra) has explained the scope of Section 12(1)(c) of the Act and held that to

attract Section 12(1)(c) of the Act, tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord

in himself or in a third party. Here, although tenant has tried to set up his title in the name of Ram Singh (other than plaintiff) in a very articulate

manner but the said issue has not been framed by the trial Court in specific terms and reasons appear to be obvious because plaintiff never prayed for

such relief by moulding the relief by way of amendment.

Similarly, at the appellate stage also, no cross-objection has been filed by the plaintiff/ appellant for eviction under Section 12(1)(c) of the Act

therefore, once, the pleadings were not specifically referred regarding the denial of title under Section 12(1)(c) of the Act and issue in this regard was

not framed then parties never had any opportunity to approbate or reprobate or lead the evidence in support of their submissions, therefore, at the

stage of second appeal, the instance issue could not have been decided. Although, the first appellate Court discussed the issue of Section 12(1)(c) of

the Act in a limited way but in absence of issue being framed and pleadings being raised by the parties , no relief can be granted to the landlord for

eviction under Section 12(1)(c) of the Act at this juncture. Therefore, substantial question of law No.2 is answered accordingly.

From the record, it appears that respondent No.1 preferred an application under Order 41 Rule 27 CPC vide I.A. No.859/2018 for taking certain

documents on record.

Perusal of the application indicates that respondent No.1 intends to incorporate the proceedings of the Commissioner, Gwalior Division pending at

the instance of present appellant. The suit proceedings appear to be in respect of diversion tax under Section 172 of the M.P. Land Revenue Code,

1959.

Some orders of the revenue authorities have also been annexed. Receipts of property tax paid by the appellant before the Municipal Corporation,

Gwalior is also filed. Besides that, certain photographs of the disputed shops and adjoining area are also annexed. Through the said application,

respondent No.1 wants to plead that these documents are worth taken over the record.

Perusal of the documents vis a vis the controversy reveals that these documents and facts do not hold or carry substance in the controversy for

adjudication. Documents of diversion proceedings and Property Tax Assessment are confined to the proceedings initiated by the authorities. It is of no

help while determining the bonafide requirement of the landlord and availability of the alternative accommodation. Photographs also are not of much

help to respondent No.1. Appellant has filed the reply denying such claims extensively therefore, on this count, application preferred by respondent

No.1 deserves dismissal.

On the basis of cumulative analysis, appeal preferred by the appellant is allowed on the basis of discussion in respect of substantial question of law

No.1. Appellant successfully pleaded his bonafide requirement for the suit shop to start his business and proved that he has no other suitable

accommodation in the vicinity of Greater Gwalior therefore, the judgment and decree in respect of eviction under Section 12(1)(f) of the Act dated

30/05/2002 passed by V Civil Judge Class-I in Civil Suit No.121-A/2000 are affirmed and judgment and decree dated 28/02/2004 passed by III

Additional District Judge, Gwalior in Civil Appeal No.16/2002 are hereby set aside.

Ordered accordingly.