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Judgment
THIS appeal is filed against the judgment and decree dated 31.03.2017 passed in Civil Suit No.21-A/2015 by 4th Civil Judge, Class-II, Ujjain and
judgment and decree dated 05.04.2018 passed in First Appeal No.14-A/2017 by 10th Additional District Judge, Ujjain by which civil suit as well as the
first appeal both have been dismissed.
[2] Facts of the case, in short, for disposal of this appeal are as under :-
(a) The Respondents [hereinafter referred to as “the plaintiffsâ€] filed the civil suit seeking decree of eviction and arrears of rent from the present
appeallant [hereinafter referred to as “the defendantâ€] from Shop Nos.6 and 7, area 10 x 9 and 10 x 9, in total 20 x 9, with attached godowns, all
are situated in House No.8, Kamri Marg, Ujjain [hereinafter referred to as “the suit shopsâ€].
(b) As per the admitted facts of the case, the defendant was inducted as tenant in the suit shops by Late Abdul Zafar @ Zafar Bhai who is father of
plaintiff Nos.1 and 2 and husband of plaintiff No.3. The water charges and electricity charges were not included in the rent and same were payable by
the defendant. According to the pleading in the plaint, the suit shops were received by Late Abdul Zafar by way of partition in his family. The plaintiff
Nos.1 and 2 are son and plaintiff No.3 is widow of Abdul Zafar and they received the suit shops by way of succession after the death of Abdul Zafar
on 25.09.2006. The suit shops were given to the defendant by Late Abdul Zafar. Rs. 600-00 was payable as a rent for shops at ground floor and
Rs.368-00 was payable for both the godowns, in total rent was first at the rate of Rs.968-00 per month. It is alleged that the defendant was irregular in
payment of rent and he paid the rent on 31.05.2010 and thereafter he stopped paying the rent. He was served with the legal notice dated 30.11.2011
send by registered/AD demanding the rent and eviction. According to the plaintiffs, the defendant did not pay the rent from 01.06.2010 to 31.12.2013
i.e. for 43 months. The defendant has lodged false complaint against the plaintiffs in Police Station Kotwali, Ujjain on 12.08.2013 and due to which
they suffered mental agony and nuisance. Without the permission of the plaintiffs, the defendant has removed the common gate and put the shutter
gate. The plaintiff No.1 is having the shop in the name of “Radha Krishna Bhakti Bhandar†since 2 years and the plaintiff No.2 is having the
tailoring business in the shop ad-measuring 4 x 10 feet which is not sufficient for his business. Therefore, they sought his eviction on the ground of
bona-fide need for running their business.
(c) The defendant filed the written-statement denying the tenancy as well as the ownership of the plaintiffs. He has specifically pleaded that the
godowns are not separate in tenancy but part of the suit shops and the rent of the entire shops is only Rs.600-00. He has deposited the rent Rs.27,000-
00 for 45 months vide CCD No.995 on 11.02.2014. In total Rs.12,000-00 were sent to the plaintiffs by way of money-orders on different dates which
they refused. It was further pleaded that the plaintiffs are only interested in increasing of the rent and demanding from the defendant rent @ Rs.3,000-
00 per month. The plaintiffs have already purchased the Plot No.8/1/1, Kamari Marg, Ujjain ad-measuring 11.27 x 2.62 meter by registered sale-deed
dated 30.01.2016 and started the business, therefore, the bona-fide need has been fulfilled.
(d) On the basis of pleadings, the Trial Court framed 11 issues for adjudication.
(e) The plaintiffs got exhibited 10 documents as Exs. P/1 to P/10 and the defendant got exhibited 15 documents as Exs. D/1 to D/15. The plaintiffs
examined Shahid Sheikh as PW-1 and the defendant examined himself as DW-1.
(f) Vide judgment and decree dated 31.03.2017 the learned Civil Judge recorded the finding in respect of Issue No.1 that the plaintiffs have
successfully proved that the defendant is the tenant in 2 shops in which 2 godowns are included. The tenancy is commercial and the rent is Rs.600-00
per month without water and electricity charges. The rent is due from 01.06.2010 @ Rs.968-00 per month for the period of 3 years, but the defendant
has not created any nuisance and damage to the suit shops. The suit shops are required bona-fidely for expansion of the business of plaintiff Nos.1
and 2 as they are not having suitable accommodation in Ujjain City. The learned Civil Judge has directed the defendant to hand over the possession of
the shops to the plaintiffs within a period of 2 months and pay the rent Rs.14,400-00.
(g) Being aggrieved by the aforesaid judgment and decree, the defendant filed first appeal before the District Judge. The learned Additional District
Judge vide judgment and decree dated 05.04.2018 he has upheld the judgment and decree dated 31.03.2017 passed under Section 12 (1) (f) of the M.
P. Accommodation Control Act, 1961 and dismissed the appeal. Hence, the present second appeal before this Court.
[3] In this appeal, learned counsel for the appellant has suggested the following substantial questions of law :-
“03.1. Whether the learned Courts below have acted illegally and contrary to law in passing the impugned judgment and decree on the ground of
Section 12 (1) (f) of M. P. Accommodation Control Act, 1961 regarding the part of the tenanted accommodation and further acted illegally and
contrary to law in splitting up the tenancy ?
03.2. Whether the learned first appellate Court has acted illegally and contrary to law in holding that the decree passed by the trial Court in para
number 22 of the judgment will include the First floor also inspite of this fact that Trial Court specifically mentioned that the suit for eviction is partly
decreed regarding 2 shops of ground floor total area 20 by 9 feet ?
03.3. Whether the learned Courts below have acted illegally and contrary to law in holding that the appellants are stopped from questioning the title of
the landlord on the ground that appellant has paid the rent to respondent number 3 inspite of this fact that the receipt was given in the name of Shri
Abdul Zafar not in the name of respondents/plaintiffs ?
03.4. Whether the learned Courts below have any jurisdiction to pass the decree on the ground of section 12 (1) (f) of M. P. Accommodation Control
Act inspite of this fact that the respondent number 3 Raisaa is widow and falling under the category of special land lord ?
03.5. Whether the learned Courts below have any jurisdiction to pass the decree on the ground of section 12 (1) (f) of M. P. Accommodation Control
Act in the light of provisions of section 23 (J) and section 45 of M. P. Accommodation Control Act, 1961 amended in 1983 ?
03.6. Whether the learned Courts below have acted illegally and contrary to law in holding that the respondent number 1 and 2 bonafidely require the
suit accommodation for starting there own business inspite of this fact that the said respondents are already doing their business and further the
respondent number 2 has not come in witness box to prove his need ?
03.7. Whether the learned Courts below have acted illegally and contrary to law that the requirement of respondent number 1 and 2 are genuine
without considering the material, oral and documentary evidence on record and further acted illegally inspite of this fact that the respondent number 1
and 2 have not produced any document or evidence regarding expansion of their business and alternative accommodation available to them ?
03.8. Whether the judgment and decree passed by the learned Courts below are sustainable in eye of law ?â€
[4] Shri Dilip Kumar Saxena, learned counsel for the appellant vehemently argued that the learned Civil Court has wrongly granted the decree of
eviction in respect of the shops only. The suit for eviction was filed for shops as well as for godowns. The tenancy was joint tenancy in respect of suit
shops and the godowns. Learned Civil Court has wrongly granted the partial decree by splitting the suit shops which is impermissible in law. In support
of his contention, he has placed reliance over the judgment of Apex Court in the case of Mattulal v/s Radhe Lal [1974 MPLJ 752]; Miss S. Sanyal v/s
Gian Chand [AIR 1968 SC 438] and Habibunnisa Begum v/s V.G. Doraikanu Chettiar [AIR 2000 SC 152]. He further submitted that the learned
Courts below have committed grave error of law by splitting the tenancy into 2 parts. The Court ought to have dismissed the case for entire suit shop
which was filed for decree of eviction from the suit shops as well as from the godowns. The plaintiffs have failed to prove their bona-fide need. The
plaintiffs are not the owner of the suit shops because they claimed ownership by virtue of Hiba and oral partition in the family which is impermissible
under the Mohammedan Law. Learned counsel for the appellant has also placed reliance over the judgments passed in the case of Bhojraj
Rameshchandra v/s Ghanshyam Das Agrawal [2000 (II) MPJR 355]; Madhya Pradesh Vidhyut Mandal v/s Union of India [2000 (I) MPJR 637];
Smt. Aleamma v/s Seth Mmeghraj [1993 (I) MPJR 378]; Dhannalal v/s Kalawatibai [AIR 2002 SC 2572]; Smt. Parmeshwari Devi v/s Thakur Natthu
Singh [1998 (I) MPJR 462]; Deena Nath v/s Pooran Lal [2001 (II) MPJR 168]; Shantilal v/s Mangilal [1995 (II) MPWN 20]; Hidayatt Ullah v/s
Vishvanath [1997 MPACJ 337]; Sachchidanand Garg v/s Govindlal [1983 JLJ 61] and Rameshwar Prasad Gupta v/s Prasanna Kumar Jain [2005 (II)
MPJR 171].
[5] Learned counsel for the appellant further submitted that the learned appellate Court has also committed grave error of law while affirming the
judgment and decree passed by the Trial Court. The defendant filed additional documents by way of application under Order XLI Rule 27 of the CPC
which ought to have been accepted by the learned appellate Court. In support of his contention, he has placed reliance over the judgments passed in
the case of Chakreshwari Construction Pvt. Ltd. v/s Manohar Lal [2017 (3) MPLJ 717] and Banarsi v/s Ram Phal [2003 SAR (Civil) 320].
[6] Shri Rajendra Samdani, learned counsel for the Respondents argued in support of the judgment and decree submitted that both the Courts below
by concurrent finding granted decree of eviction and no substantial questions of law are involved in this appeal and the appeal is liable to be dismissed.
[7] According to learned counsel for the appellant, since the learned Courts below have not granted any decree in respect of eviction of godowns and
passed the decree only in respect of 2 shops ad-measuring 10 x 9 and 10 x 9 feet, therefore, said decree is nullity and cannot be executed. The
arguments and grounds raised in appeal are devoid of substance and this appeal is liable to be dismissed due to following reasons.
[8] In para 1 of the plaint, the plaintiffs have specifically pleaded that 2 shops having Nos.6 and 7, area 10 x 9 and 10 x 9 feet are situated in the
ground floor and in first floor 2 godowns of the similar area are also in possession of the defendant as tenant. The defendant is tenant in both the shops
and godowns. There is no wall between 2 shops and 2 godowns and both at attached. The defendant/appellant filed the written-statement by
specifically pleading that godowns are part of the shops and tenancy and not the separate godowns. He further pleaded as under :-
“oknhx.k ftls xksMkmu vfHkdfFkr dj jgs gS] og fdjk;snkjh nqdku dk Hkkx gS] uk fd xksMkmuA oknhx.k us prqlhZek tks mYysf[kr dh gS og xyr
gksus ls Lohdkj ughAâ€
[9] The defendant has further admitted that he took the shops on rent from Late Abdul Zafar and used to pay the rent to him. He has also admitted
that the tenancy is monthly. Since the defendant has already taken the stand that the godowns are part of the shops and virtually admitted the
pleadings made in para 1 of the plaint, therefore, he has estopped from arguing that the godowns are separate from the shops and the learned Trial
Court has only granted the decree for shops and not for the godowns. This was not the case of the defendant before the Trial Court that the tenancy
of shops and godowns are separate and he was paying the single rent for entire premises i.e. shops as well as godowns. He has also not pleaded and
proved that the godowns are having separate entry, separate electricity connection or the separate tenancy agreement. He was paying the single rent
to the plaintiffs, therefore, the learned Trial Court as well as the first appellate Court have rightly came to the conclusion that the godowns are the part
of the shops and the defendant is the tenant in the suit shops. Therefore, there is no decree in the nature of splitting the tenancy. The Civil Court has
rightly passed the decree of eviction of 2 shops in which the godowns are included. Therefore, no substantial questions of law are involved in the
aforesaid grounds raised by the appellant/ defendant.
[10] So far as the denial of title of the plaintiffs are concerned, the defendant has already admitted his tenancy with Abdul Zafar. Undisputedly the
plaintiff Nos.1 and 2 are sons and plaintiff No.3 is widow of Abdul Zafar. There is no dispute about that the plaintiffs are not the legal heirs of Abdul
Zafar and after the death of Abdul Zafar they succeeded the property. Therefore, the decree under Section 12 (1) (f) of the M. P. Accommodation
Control Act, 1961 has rightly been granted to the plaintiffs as they are owner of the suit shops. The issue of title can be decided in the suit filed for
eviction.
[11] So far as the decree under Section 12 (1) (f) of the M. P. Accommodation Control Act, 1961 is concerned, both the Courts below have rightly
appreciated the evidence which came on record that the suit shops are required for expansion of business. They are running their business in small
shop which is ad-measuring 4 x 10 feet in which stair case is also there. The defendant is in possession of 2 shops ad-measuring 20 x 9 feet. Both the
Courts below have recorded concurrent finding in respect of decree under Section 12 (1) (f) of the M. P. Accommodation Control Act. No substantial
questions of law are involved in this appeal.
[12] The Supreme Court in the case of Kshitish Chandra Bose v/s Commissioner of Ranchi, reported in (1981) 2 SCC 103 has held that the High
Court cannot interfere with the conclusion of fact recorded by the Courts below, however, erroneous the said conclusion may appear. Para-11,12 &
13 of the aforesaid judgment are reproduced herein below :-
“11. On a perusal of the first judgment of the High Court we are satisfied that the High Court clearly exceeded its jurisdiction under Section 100 in
reversing pure concurrent findings of fact given by the trial court and the then appellate court both on the question of title and that of adverse
possession. In the case of Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203, this Court held that the High Court had no jurisdiction to entertain
second appeal on findings of fact even if it was erroneous. In this connection this Court observed as follows:
“It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact.
As the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to
interfere with the said finding.â€
To the same effect is another decision of this Court in the case of R. Ramachandran Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302, where the
Court observed as follows:
“But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however, erroneous the said conclusions
may appear to be to the High Court, because, as the Privy Council observed, however, gross or inexcusable the error may seem to be there is no
jurisdiction under section 100 to correct that error.â€
The same view was taken in two earlier decisions of this Court in the cases of D.Pattabhiramaswamy v. Hanymayya, AIR 1959 SC 57 and
Raruha Singh v. Achal Singh, AIR 1961 SC 1097.
Thus, the High Court in this case had no jurisdiction after reversing the concurrent findings of fact of the Courts below on the question of adverse
possession to remand the case to the Additional Judicial Commissioner on the question of title which also was concluded by the concurrent findings of
fact arrived at by the two courts as indicated above.â€
[10] Both the Courts below did not commit error of law as well as of fact while dismissing the suit and the appeal both. Therefore, I do not find any
ground and substantial question of law involved in this appeal. In view of the above, this second appeal is dismissed.