Pandharemath Rao vs Rukminibai and others

A.K. Saxena, J.

These two appeals are being disposed of by this judgment as these appeals arise out of the common judgment passed by First Additional Judge to the Court of District Judge, Khandwa in Civil Appeal Nos. 59A/83 and 60A/83.

Being aggrieved by the judgment and decree dated 11-3-1991 passed by the Court of First Additional Judge to the Court of District Judge, Khandwa in Civil Appeal No. 59-A/83 and Civil Appeal No. 60-A/83 arising out of the judgment passed by the Second Civil Judge Class-II, Khandwa on 8-9-1983 in Civil Suit No. 27-A/77, the Appellant/plaintiff preferred these two appeals.

The Appellant/plaintiff filed the civil suit for eviction of Chotu @ Chotelal, who was husband/father of respondents, from the suit property on these grounds that the Appellant is owner and landlord of the disputed house and the defendant was his tenant at Rs. II- per month. The defendant Choteial failed to pay the rent since 1st April, 1974 despite notice. The house is in dilapidated condition and the defendant has materially altered the accommodation by making construction without written sanction of the plaintiff. The house is not fit for human habitation. The defendant also denied the ownership of the plaintiff. Apart from that, the defendant took the illegal possession of adjacent land, during the pendency of the suit which is not included in the accommodation let to him. Therefore, the suit was filed for eviction of the defendant from the disputed house and for possession of the adjacent land.

After taking evidence, the trial Court decreed the suit on the grounds enumerated u/s 12(1)(a) and 12(1)(c) of M.P. Accommodation Control Act, 1961 (hereinafter referred to as the ''Act'') but on remaining grounds it was dismissed.

Against the judgment and decree passed by the trial Court, both the parties filed counter appeals but, the First Appellate Court vide its judgment and decree dated 11-3-1991 passed in Appeal Nos. 59-A/83 and 60-A/83, dismissed the whole suit and reversed the decree passed by the trial Court u/s 12(1)(a) and 12(1)(c) of the Act. Against this judgment and decree, the Appellant/plaintiff filed these second appeals because the First Appellate Court passed the common judgment in two appeals.

The Second Appeal No. 393/91 was admitted on the following substantial question of law:

Whether the facts and circumstance on appearing from evidence on record justify the conclusion that there is no relationship of landlord and tenant between the parties?" Another Second Appeal No. 394/91 was admitted on the following substantial question of law:

Whether the facts and circumstances of the case justify the conclusion that there is no relationship of landlord and the tenant between the parties?

Both the substantial questions of law are of similar nature. The Appellant/plaintiff pleaded in the trial Court that he is the owner and landlord of the disputed property whereas, the defendant is tenant but the facts of ownership and tenancy was denied by the defendant. The trial Court reached at this conclusion that there was a relationship of landlord and tenant between the plaintiff and the defendant on the basis of documentary and oral evidence whereas, the First Appellate Court found that the plaintiffs were not the owner of disputed property and the defendant was not the tenant of that house. On perusal of paragraphs 13 to 25 of the judgment passed by the First Appellate Court, I found that the finding of the First Appellate Court with regard to ownership is totally erroneous, because the learned Judge of First Appellate Court failed to notice that there is lot of difference between the words ''landlord'' and ''owner''.

The First Appellate Court discussed the fact of ownership at length, as if this suit was filed for declaration of title. This was totally wrong approach where eviction of the tenant was sought from the disputed premises. Where a suit is filed under the Act, it is for the Court to see whether the relationship of landlord and tenant exists or not and it would be futile to declare the ownership of the disputed property, because the suit was not filed for declaration of the title, though the question of title may be considered incidentally, if disputed.

Sub-section (b) of Section 2 of the Act defines the word ''landlord'' as follows:

(b) "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." The definition of landlord reveals that several persons come under this definition and it is not necessary for the owner of the property to file a suit as anybody who comes under the definition of ''landlord'' is entitled to file a suit for eviction of the tenants. It has been held in National Spiritual Assembly of Bahais of India and Ors. v. Maharashtra State Khadi and Village Industries Board and Anr., 1994 Supp (2) SCC 704 that even a person collecting the rent and issuing the receipts therefrom for a very long period independently of the owner of the premises, he can be called landlord.

In the present case, the position of plaintiff is much better as the plaintiff filed documentary evidence and adduced oral evidence to prove that he is owner of the disputed house and this evidence has been properly appreciated by the trial Court in its judgment whereas, the First Appellate Court, instead of looking at this fact that the plaintiff is landlord or not, considered whether the plaintiff is owner of the disputed house or not. There is nothing in the evidence of the defendant to prove that he was owner of the disputed property or he was not tenant of the plaintiff. The defendant Chotelal denied his signatures on written statement also, apart from denial of other signatures. This is sufficient to disbelieve his whole statement. The trial Court has rightly reached at this conclusion that the plaintiff is owner and landlord of disputed house and the defendant was his tenant. In this regard, the account book pages Ex. P.3 and P.4 are sufficient to believe that the defendant Chotelal was tenant in the disputed premises and this account book is believable evidence. In these circumstances, the defendant could not claim adverse possession. Therefore, the findings of the First Appellate Court with regard to no ownership of the plaintiff and no relationship of the parties as landlord and tenant are erroneous whereas, the findings of the trial Court in this respect are correct and according to oral and documentary evidence.

The trial Court has rightly concluded that the defendant failed to pay the rent as provided u/s 12(1)(a) of the Act. The defendant denied the title of the plaintiff, therefore, the trial Court has rightly held that on this ground also, the plaintiff is entitled for the decree of eviction. Apart from the ground taken u/s 12(1)(o) of the Act, the other grounds have rightly been rejected by the trial Court, as the plaintiff has totally failed to prove that the house is in dilapidated condition and is not good for habitation or it needs rebuilding or the defendant caused substantial damages to the house.

Now, with regard to ground u/s 12(1)(o) of the Act, the trial Court did not pass the decree under this provision because the plaintiff failed to pay the Court-fees. There is no provision to this effect that whenever a suit is filed under different grounds of the Act, Court-fees has to be paid on all these grounds separately by the plaintiff. Section 7(xi) of the Court Fees Act, 1870 provides as follows:

(xi) In the following suits between landlord and tenant: (a) for the delivery by a tenant of the counter part of a lease,

(b) to enhance the rent of a tenant having a right of occupancy,

(c) for the delivery by a landlord of a lease,

(cc) for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy,

(d) to contest a notice of ejectment,

(e) to recover the occupancy of immovable property from which a tenant has been illegally ejected by the landlord, and

(f) for abatement of rent-according to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint.

It is held in Kevalchand Puranchand and Anr. v. Suganchand Puranchand, 1983 MPLJ 381 in para 14 that:

In the light of the foregoing discussion, question No. (i) is answered as under:

No separate valuation for the purposes of jurisdiction and Court-fees with regard to the ejectment from the encroached accommodation is necessary to be put when the suit is brought by the landlord against the tenant for ejectment on ground u/s 12(1)(o). The valuation for the purposes of jurisdiction and Court-fees put for ejecting the tenant from the let accommodation as well as the encroached accommodation according to the annual rental value of the let accommodation in accordance with Sub-clause (cc) of Clause (xi) of Section 7 of the Court Fees Act is proper, and a decree, on the proof of the ground u/s 12(1)(o) of the Act, for ejectment from the encroached accommodation subject to the affording of an opportunity to the tenant u/s 12(11), of the Act, can be passed.

Since, the ground with regard to illegal possession of the defendant on the adjacent land raised under the Act, there was no need to pay the Court fees separately. This fact has not been discussed in the light of the provisions of the Court Fees Act either by the trial Court or by the First Appellate Court. It is proved by the plaintiff that the defendant took the possession of the vacant land illegally, during the pendency of the suit which was not in his tenancy, and the plaint has been amended accordingly, the suit should have been decreed u/s 12(1)(o) of the Act also.

The judgment and decree passed by the First Appellate Court is totally erroneous and illegal whereas, the decree passed u/s 12(1)(a) and 12(1)(c) of the Act by the trial Court is according to law but, the learned trial Judge has committed an error in rejecting the ground raised u/s 12(1)(o) of the Act. The suit should have been decreed under this section also.

In these circumstances, the judgment and decree passed by the First Appellate Court is set aside and the judgment and decree passed by the trial Court is maintained with this modification that the defendant/respondents shall handover the possession of the disputed land of the Appellant/plaintiff, which has been shown in Annexure-B of the plaint within four months from today. No order as to costs.