Salim and Others vs Kasam and Others

N.K. Mody, J.

Being aggrieved by the Judgment and Decree dated 6.9.93 passed by Additional Judge, Sendhwa in Civil Appeal No. 13-A/92 whereby the Judgment and Decree dated 21.8.89 passed in civil suit No.53-A/83 by Civil Judge Class-II, Sendhwa has been confirmed and the suit filed by the respondents has been decreed u/s 12(1)(c) of the M.P. Accommodation Control Act (which shall be referred herein as Act), the present appeal has been filed.

Short facts of the case are that respondents filed a suit against the appellant for eviction u/s 12(1)(c)(f) and (m) of the Act alleging that the appellant is tenant in the suit accommodation with effect from 1.12.79 @ Rs.70/- per month. So far as the ground u/s 12(1) (c) is concerned, it was alleged in the plaint that accommodation was let out to the appellant for residential purposes but since last few years the appellant has installed a flour mill which is being operated by electricity. On this basis, it was prayed that decree of eviction be passed against the appellant.

Appellant submitted written statement wherein tenancy was not disputed. Rest of the allegations for asking eviction of the appellant was disputed. It was also alleged that accommodation was not let out on 1.12.79. In fact the accommodation was let out before 40-45 years to the appellant @ Rs.30/- per month and at that time the nature of the accommodation was an open plot. It was alleged that it was agreed that appellant shall construct the accommodation over the plot from his own sources and will use it for residential and nonresidential purposes. It was alleged that appellant is carrying on his business of flour mill since last 9 years. It was prayed that suit be dismissed.

On the basis of pleadings of parties, learned trial court framed issues, recorded the evidence adduced by the parties and dismissed the suit u/s 12(1)(f) and (m) of the Act but decreed the suit u/s 12(1)(c) of the Act. Being aggrieved by the Judgment and Decree passed by the trial court, appellant preferred an appeal which was also dismissed, against which the present appeal has been filed which has been admitted by this Court vide order dated 22.2.94 on the following substantial questions of law:

(i) Whether the courts below were justified in passing decree for eviction based on ground as specified u/s 12(1) (c) of the M.P. Accommodation Control Act, 1961, in face of the fact that the purpose for which the accommodation was let out has not been established or without holding to have been proved ?

(ii) Whether finding of such a nature is perverse ?

Learned counsel for appellant has drawn my attention to the findings of learned trial court. It is submitted that in para 9 of its Judgment learned trial court has found that it is proved that the accommodation which was given to the appellant was is shape of an open plot. It is submitted that it is also an admitted fact that there was no written note executed between the parties. It is submitted that in view of the aforesaid findings of the learned trial court that by starting a flour mill appellant has made himself liable for eviction u/s 12(1) (c) of the Act is not maintainable. Learned counsel submits that initial burden to prove that accommodation was let out for residential purposes and the appellant is using the accommodation for inconsistent purpose, was on the respondent. To prove this fact, there was no documentary evidence. So far as oral evidence is concerned, respondent has examined two witnesses, out of which P.W.-1 is Antar Singh who is sub Engineer at Municipal Council, Khetia who is a witness to prove that appellant has erected some illegal construction. PW-2 was Mohd. Yunis who was a secretary of the respondent Muslim Jamat Khetia. It is submitted that this witness has specifically admitted that appellant has inducted in the suit accommodation @ Rs.10/- and the rent was enhanced from Rs.10/- to Rs.707 - in the year 1979. It is submitted that in para 10 it was admitted that accommodation was let out by his father and maternal uncle who were also Panchas of the respondent Muslim Jamat Khetia before 30-40 years. It was also admitted in para 30 of his statement that at the time of induction of the appellant as tenant he was not present and because of that reason he cannot say that accommodation was let out for residential purpose or for nonresidential purpose. In view of the aforesaid evidence there was nothing on record to show that a decree of eviction could have been passed against the appellant.

Learned counsel placed reliance on a decision in the matter of Nirvikar Gupta Vs. Ram Kumar, AIR 1992 MP 115, wherein Hon''ble Shri Justice R.C. Lahoti has held that in the Rent Control Law the change of user providing a cause of action for ejectment of the tenant should not only be inconsistent but should also be such which would prejudicially affect the interest of a landlord on account of its mischievous or detrimental or impairing tendency. The position, however, will be different if there be a specified purpose of tenancy mentioned in the deed of lease with a prohibition on tenant from using of premises for any other purpose in which case, the prohibited user would itself be a ground for eviction. Where there was no written contract of tenancy between the parties providing for a particular purpose of tenancy and prohibiting the use of the premises for any other purpose, simply because, the tenant had commenced the activity of loud speakers repairing and battery charging along with watch making without more, did not entitle the landlord to seek ejectment of the tenant.

Further reliance was placed on a decision in the matter of Abdullah Khan Vs. Dr. Abdul Khalik reported in 1984 MPWN 26, wherein this Court has observed that for a decree on the ground of inconsistent purpose, it is necessary to come to a conclusion that the premises were let out for nonresidential purposes only. Admittedly the lease was an oral lease and no document was executed. There is no evidence on the basis of which the terms and conditions of the lease would be established and, therefore, there is no evidence on the basis of which it could be held that the purpose for which originally the lease was granted was non-residential. In the absence of any evidence and a finding about the purpose for which the lease originally was granted, it is not possible to hold that the premises are being let out. In view of this it is apparent that the finding arrived at by the learned court below could not be maintained and the learned court below in arriving at this conclusion without a finding about the purpose for which the premises were let out has committed an error of law.

Shri P.V. Bhagwat, learned counsel for respondents submits that appellant himself has admitted that he has established the flour mill before 9 years while admittedly the appellant was in occupation of the accommodation since last so many years. In the circumstances, burden to prove that such accommodation was let out for composite purposes or for non-residential purposes was on the appellant.

From perusal of record, it is evident that there was no written note executed by the appellant at the time of inception of tenancy. The case of the appellant was that open land was let out to him and it was found proved by both the courts below. In evidence also, it has come that prior to the flour mill which was established by the appellant about 9 years before filing of the suit, the appellant is carrying on oil mill in the suit accommodation. In view of this, learned courts below committed error in granting the decree against the appellant.

Hence the appeal is allowed. The Judgment and Decree passed by the courts below is set aside. No order as to costs. C.C. as per rule.