Shakur Mohd. (DEAD) through Legal Representatives vs Jahur Mohd.

Hon''ble Shri N.K. Mody, J.—This appeal was admitted for final hearing by this Court vide order dated 20/04/2006 on the following substantial questions of law :

(i) Whether in the facts and circumstances of the case, when both the Courts have held that there was no relationship between the plaintiff and defendant as landlord/tenant a decree of eviction can be granted ?

(ii) Whether the plaintiff is permitted in law to take opposite stands as landlord and owner of the suit premises in an eviction suit and can ask relief on the basis of ownership with regard to possession ?

Being aggrieved by the judgment and decree dated 30/11/2005 passed by I ADJ, Ujjain in civil appeal No.28-A/2005 whereby the judgment and decree dated 10/03/2005 passed by II Civil Judge, Class-II, Ujjain in civil suit No.125-A/2004 whereby suit filed by the respondent was dismissed was set-aside and decree of possession was passed against the appellant, present appeal has been filed.

Short facts of the case are that respondent filed a suit for eviction against the appellant on 06/02/1998 alleging that respondent is owner of a house bearing No.45, Sudama Nagar, Ujjain. It was alleged that in a room situated at ground floor appellant is residing as tenant @ Rs.100/- per month. It was alleged that appellant is in arrears of rent w.e.f. 01/11/1997. It was alleged that respondent requires the suit accommodation bonafidely. Further case of the respondent was that the appellant has encroached on a room situated towards eastern side of the suit property and was in arrears of rent. It was alleged that upon demand of rent appellant is abusing and creating nuisance. It was prayed that suit filed by the respondent be decreed and appellant be directed to vacate the suit accommodation by giving the possession to respondent. The suit was contested by the appellant by filing the written statement wherein plaint allegations were denied. It was denied that appellant is tenant in the suit accommodation. It was alleged that appellant and respondent are real brothers and power of attorney of the respondent is a niece of appellant. Deceased Noor Mohd. was father of appellant and respondent. Plot No.45 on which suit accommodation is situated was of the deceased Noor Mohd. and construction was also made by deceased Noor Mohd. It was alleged that Kalobai who was the wife of deceased Noor Mohd. and mother of appellant and respondent. It was alleged that appellant and respondent were living in the suit accommodation alongwith Noor Mohd. and his three other sons and two daughters. It was alleged that appellant is residing in the suit accommodation since the time of his father. It was alleged that Noor Mohd. executed will on 15/05/1981 and after his death his all the legal representatives including appellant are owner of the suit accommodation. It was alleged that in the facts and circumstances of the case there are no relationship of landlord and tenant. It was prayed that the suit be dismissed. After filing of written statement the plaint was amended by the respondent vide amendment dated 28/09/2001 wherein it was alleged that since appellant has denied the title of respondent and also relationship of landlord and tenant, therefore, in alternative respondent is claiming possession of the suit accommodation on the basis of title. On the basis of pleadings of the parties learned trial Court framed the issues, recorded the evidence and dismissed the suit holding that respondent has failed to prove that appellant is tenant and no decree of eviction can be passed against the appellant against which an appeal was filed by the respondent which was allowed and decree of eviction was passed in favour of respondent against which the present appeal has been filed.

Ms. Rekha Shrivastava, learned counsel for the appellant argued at length and submits that the impugned judgment and decree passed by the learned appellate Court is illegal, incorrect and deserves to be set-aside. It is submitted that right from beginning the case of appellant was that the appellant and respondent are real brothers and respondent was residing with his father Noor Mohd.and appellant was also residing in the suit accommodation alongwith his family members right from the time of Noor Mohd. It is submitted that after taking into consideration all the evidence on record learned trial Court dismissed the suit filed by the respondent. It is submitted that in the circumstance there was no justification on the part of learned appellate Court in setting-aside the judgment and decreeing the suit against appellant. It is submitted that suit was amended on 11/09/2001 by the respondent whereby it was alleged that respondent is entitled for possession of the suit accommodation on the basis of title. It is submitted that in the circumstance in absence of evidence only on the basis of pleadings decree could not have been passed against the appellant on the basis of title. It is submitted that suit was filed by the respondent u/s 12 (1) (a) of the M.P. Accommodation Control Act but prior to the suit no notice was given by the respondent to the appellant for demand of rent, therefore, there was no occasion to the appellant to deny the title of the respondent. It is submitted that since respondent is claiming that the appellant is in arrears of rent w.e.f. 17/04/1984, while the suit was filed on 07/02/1998 which is barred by time. It is submitted that respondent has stated that inspite of demand rent was not paid by the appellant. It is submitted that since no notice of demand was issued by the respondent before filing of the suit, therefore, possession of the appellant was adverse w.e.f. 17/04/1984 itself i.e. the day from which the appellant is in arrears of rent and refused to pay as per the respondent. For this contention reliance is placed on a decision in the matter of Ayodhya Singh Vs. Smt. Kamlesh Singh 2008 (1) MPHT 489 wherein plaintiff failed to prove that he got title to the suit land by exchange of land but the suit land was attached in proceedings u/s 145 of Cr.P.C. and SDM after final order restored the possession of the suit land from Supurdgidar, it was held by this Court that the plaintiff''s possession became adverse from that point of time and suit ought to have been brought for possession based on title from that day. Learned counsel further submits that the learned appellate Court ought to have decided the suit on the basis of pleadings of the parties. It is submitted that even if no issue was framed, then too, that aspect of the case can be looked into. For this contention reliance is placed on a decision in the matter of Gyarsilal Jagannathprasad Mor Vs. Pandit Sitacharan Dubey and Others, wherein this Court has held that when the parties are at issue on certain statement made in their pleadings, then the matter cannot be decided on pleadings alone and the parties must produce evidence to support their averments. It is submitted that in the facts and circumstances of the case appeal filed by the appellant be allowed and the impugned judgment and decree passed by the learned appellate Court be set-aside.

Mr. M.K. Jain, learned counsel for the respondent submits that it is true that suit filed by the respondent was dismissed holding that respondent is owner of the suit property. It is submitted that since no order of eviction was given, therefore, respondent filed the appeal but in that appeal no cross-objections were filed by the appellant. It is submitted that since respondent adduced the evidence to prove the title, therefore, learned appellate Court has rightly passed the decree of eviction on the basis of title. It is submitted that appeal filed by the appellant be dismissed.

From perusal of record, it appears that to prove the case respondent filed the documents Ex.P/1 to P/11. Ex.P/1 is memorandum of oral gift dated 11/05/1984 alleged to have been executed by Noor Mohd. father of appellant and respondent in favour of respondent. Ex.P/2 is the extracts of Register of Notary where the document was notarized. Ex.P/3 is copy of Ex.P/1 which was being kept by Notary. Ex.P/4 is the notices issued by Municipal Corporation, Ujjain to the respondent. Ex.P/5, 6, 7 and 8 are the permission and maps of the suit property issued by Municipal Corporation, Ujjain. Ex.P/9 is the complaint lodged by daughter of respondent. Ex.P/10 is again the copy of Ex.P/1. Ex.P/11 is the copy of power of attorney. Appellant has also filed the Will Ex.D/1 which was executed by deceased/Noor Mohd. in favour of appellant dated 15/05/1998. Respondent has examined Balkrishna Verma PW/1 and examined himself as PW/2 while appellant has examined Nafis Ahmed as DW/1, appellant himself as DW/2 and Vikrant as DW/3.

From perusal of record, it is evident that in the statement which was recorded on 15/01/2002 appellant has stated that appellant is owner of the suit property on the basis oral gift of which memorandum is Ex.P/2. Appellant has further stated that his name was mutated in the record of Municipal Corporation and permission of construction was also granted and appellant constructed the house. It has also stated that since appellant has challenged the title of respondent, therefore, respondent has filed the suit for eviction on the basis of title as well. In the presence of these evidence it cannot be said that respondent has failed to prove the ownership by adducing evidence. In the opinion of this Court, there is no variance between pleading and proof. It is true that relationship of landlord and tenant has not been found proved but in absence of that also no illegality has been committed by the learned appellate Court in passing the decree of eviction against the appellant as the possession was also claimed on the basis of title. So far as the contention of the counsel for the appellant that suit is barred by time as the suit was filed after more than 12 years is concerned, this ground was not raised in the written statement filed by the appellant before the learned trial Court. Apart from this, this ground was not raised by the learned counsel for the appellant at any point of time and no substantial question of law is framed in this regard. After taking into consideration all the facts and circumstances of the case, since the learned trial Court has observed that respondent is owner of the suit property and no appeal or cross-objections were filed by the appellant and the findings of learned trial Court relating to ownership of respondent was maintained by learned appellate Court and also learned appellate Court passed the decree against the appellant, this Court is of the opinion that in the absence of appeal/cross-objections/oral objections findings of learned trial Court affirmed by learned appellate Court appellant cannot be permitted to challenge the decree which was passed in favour of respondent on the basis of title. Thus, it appears that learned appellate Court committed no error in passing the judgment and decree in favour of respondent. This Court is also of the view that respondent is entitled to take a stand to claim a decree of possession as owner of the suit property in a eviction suit and can ask the relief on the basis of ownership and it cannot be said that the stand of the respondent is contradictory in nature. In view of this, appeal filed by the appellant has no merits and the same stands dismissed. Thus, the substantial question framed are answered against the appellant. Since the appellant is in occupation of suit accommodation, therefore, to save the appellant from the peril of eviction, the order of eviction shall not be executed on or before 01/07/2013 on the condition that the appellant herein files an undertaking before the learned trial Court within six weeks to the effect that the appellant herein shall not induct any other person in the suit premises and shall hand-over vacant and peaceful possession of the said premises to the respondent/landlord on or before 01/07/2013 failing which respondent shall be entitled to get the decree executed forthwith.

With the aforesaid observations, appeal stands disposed of. No order as to costs. C.C. as per rules.