Tahir Ali vs Rameshchandra Agrawal

The appellant/defendant has filed the present appeal being aggrieved by judgment and decree dated 10.1.2017 passed by 3rd Additional District Judge,

Mhow, District Indore by which the judgment and decree dated 29.9.2015 passed by 1st Civil Judge, Class-II, Mhow, District Indore has been

affirmed.

Facts of the case, in short, are that the respondent/plaintiff being the owner of House No.2788/A, Tanga Khana, Yadav Mohalla, Mhow, District

Indore, filed the suit for eviction, arrears of rent and mesne profit against the defendant/tenant . According to the plaintiff, one room of the aforesaid

house was given on rent to Late Tillu, the father of the defendant by the erstwhile owner viz. Late Radhabai. The tenancy was oral and the rent was

Rs.5/- per month. Later on she had sold the said house to Moolchand.The plaintiff purchased the said house from Moolchand by registered sale-deed

dated 7.10.2003. Thereafter, he sent an information by way of a notice to the defendant, which he received on 20.5.2004. The defendant replied the

said notice by denying the ownership of the plaintiff. The plaintiff again sent a registered notice dated 22.8.2008 to the defendant, which was replied

by him vide letter dated 14.10.2008. After terminating the tenancy by the above notices, the plaintiff filed the suit for eviction u/s. 12(1)(a), (c) and (e)

of the M.P. Accommodation Control Act, 1961 (hereinafter, for short, “the Actâ€). The plaintiff claimed the arrears of rent from 7.10.2003 to

30.9.2008 amounting to Rs.300/- and also claimed Rs.3,250/- from 1.10.2008 to 15.4.2009. The plaintiff sought the decree of eviction on the ground of

bonafide need as the existing house was insufficient for his family. According to the plaintiff, he has two sons viz. Arun and Amit and two daughters

who are married now. At present he is residing jointly with his brother Govardhandas in House No.2787 in the same locality. His brother is having four

sons and they all are residing jointly. Since the said house is insufficient for his family, therefore, he sought eviction of the defendant from the rented

accommodation.

After notice, defendant filed the written statement denying the averments made in the plaint. By way of special pleading, the defendant pleaded that

the said house was initially owned by one Durgabai who kept his father â€" Tillu as a tenant. Before the death, his father Tillu, he left the said house

and started living in Indore city and at present, the wife and daughter of Tillu are residing in the said rented accommodation hence they are necessary

parties in the suit. It was also stated that his ancestors are residing in the said rented accommodation since last 60-70 years. Durgabai had assured his

father Tillu that she will sell the said accommodation to him, but she sold the said accommodation to Moolchand who constructed a 4-storied building.

Moolchand had also filed a suit for eviction against the Tillu, but the said suit had already been dismissed. Lateron Moolchand also assured late Tillu

that he will sell the rented accommodation to him, but he has also l sold the same to the present plaintiff. The legal heirs of Tillu were ready to

purchase the said rented accommodation in a consideration of Rs.1,05,000/- and they have also spent Rs.50,000/- towards repairs of the rented

accommodation.

On the basis of pleadings, the learned trial Court framed 8 issues for adjudication and allowed the parties to adduce their evidence.

The plaintiff examined himself as P.W.1; Govardhan Agrawal as P.W.2 and Vinod Garg as P.W.3. The defendant examined himself as D.W.1;

Abdul Gaffar as D.W.2; and Shabbir as D.W.3. The plaintiff got exhibited 10 documents as Ex. P/1 to P/10 and four CDs as Ex. P/11 to P/15.

After appreciating the documentary as well as oral evidence adduced by the parties, the learned trial Court vide judgment dated 29.9.2015 has

decreed the suit u/s. 12(1)(a), (c) and (e) of the Act.

Being aggrieved by the aforesaid judgment and decree, the defendant filed the first appeal before the learned 3rd Additional District Judge, Mhow.

In the said appeal, the defendant filed an application u/s. 13(1) of the Act seeking permission to deposit the arrears of rent and future rent Rs.3,250/-.

He also filed an application under Order 41 Rule 27 read with Section 107 and an application under Order 8 Rule 1 of the C.P.C. By way of aforesaid

applications, the defendant wanted to produce some additional documents in order to establish that his mother and sister are residing in the said house

and he is not residing . He has also sought permission for framing of additional issues on these pleas.

The learned first appellate Court has rejected all these three applications by observing that the defendant was having knowledge of all these facts

and documents at the time of filing of the written statement and he could have deposited the entire rent as the suit remained pending for six years.

Since he engaged the counsel, therefore, legal advise for this was also available to him.

The learned first appellate Court vide judgment dated 10.1.2017 has set aside judgment and decree of trial Court u/s. 12(1)(c), but upheld the same

u/s. 12(1)(a) and (c) of the Act. Hence, the present second appeal before this Court.

Shri Shrivastava, learned counsel appearing for the appellant, emphasized that the learned courts below have wrongly granted the decree of

eviction against the defendant alone whereas other legal heirs of Tillu are also residing in the said rented accommodation. The suit suffers from non-

joinder of parties. He further submitted that the courts below while decreeing the suit has placed reliance over the judgment of Delhi High Court in the

case of Rakesh Jain V/s. Suresh Kumar Kohli : LAWS (DLH) 2013 12 23 which is based on the judgment of the apex Court passed in case of Kanji

Manji V/s. The Trustees of the Port of Bombay : AIR 1963 SC 468, whereas the facts of the present case are all together different. He has also

placed reliance over the judgment of apex Court in the case of Textile Association V/s. Balmohan : AIR 1990 SC 2053, but the said judgment was

also based on the judgment passed in the case of Kanji Manji (supra).

Shri Shrivastava further emphasized that the plaintiff has failed to prove his bonfide need. He is already having alternate and suitable

accommodation in the same locality. The tenancy of the appellant is very old and the erstwhile owners had agreed to sell the suit house to him,

therefore, his tenancy is liable to be protected.

On the other hand, Shri Malviya, learned counsel appearing for the respondent, opposed the prayer and argued in support of the impugned

judgments and decree. It is submitted that both the courts below have concurrently held that the suit accommodation is bonafidely needed by the

plaintiff and the said concurrent findings are not liable to be interfered with in this appeal filed u/s. 100 of the C.P.C. by this Court. No question of law

is involved in this appeal, hence the same is liable to be dismissed.

I have heard the learned counsel for the parties at length and perused the record of civil suit and first appeal as well .

So far as issue of bonafide need is concerned, both the courts below have elaborately discussed the evidence which came on record. Both the

courts below have concurrently held that the plaintiff is residing with his brother in a joint accommodation which is insufficient for his family. His

brother is having four sons and all are married. Two sons of the plaintiff are also married and due to shortage of accommodation, one of them is

residing in Indore. The present accommodation is insufficient for his family and, therefore, the suit house is required bonafidely. Since both the Courts

below have concurrently recorded this finding in favour of the plaintiff and the defendant has failed to prove and establish that the plaintiff is having

alternate and suitable accommodation in Mhow city for residential purposes, I do not find any perversity in it and also do not find any question of law is

involved in this appeal. Therefore, the decree granted u/s. 12(1)(e) of the Act, is not liable to be interfered.

So far as the decree u/s. 12(1)(a) of the Act is concerned, after receipt of the notice, the defendant did not pay the rent to the plaintiff and also

denied his ownership. The plaintiff filed the suit seeking decree of eviction on the ground of default of payment of rent and after receipt of the

summons and before filing the written statement, the defendant did not deposit the arrears of rent. The suit remained pending for almost 6 years, but

he did not deposit the rent before the trial Court. The rent was only Rs.5/- per month, therefore, the learned first appellate Court has rightly rejected

the application filed u/s. 13(1) of the Act and rightly upheld the decree u/s. 12(1)(a) of the Act.

The defendant took the defence that he is not residing in the said accommodation and the wife and daughter of late Tillu are residing, therefore,

the suit is not maintainable against him. Since the defendant took this defence from the very beginning, therefore, the burden lies on him to prove by

way of oral as well as documentary evidence. The suit remained pending for more than six years, but he did not file any document to prove that he is

not residing in the suit house and residing in Indore. The learned trial Court has specifically framed the issues in respect of non-joinder of the parties

even then, he did not file any documents. Therefore, the learned first appellate Court did not commit any error in rejecting the applications under Order

41 Rule 27 and under Order 8 Rule 1 of the C.P.C. The learned first appellate Court has elaborately discussed the evidence came on record and

concurrently held that the defendant is residing in the same accommodation along with his mother and sister. The notice was sent to him being elder

son of Tillu.

The apex Court in the case of Kanji Manji (supra) has held that the notice terminating the tenancy sent to one of the joint tenant is valid, the

tenancy can be determined by giving notice to one of the tenant and the judgment and decree in such a suit are not invalid. The aforesaid view has

been followed by this Court in the case of Kanhaiyalal V/s. Shri Ram : 1991 JLJ 119. Para 11 to 16 of the said judgment are reproduced below :

“11. But even if other legal representatives were jointly in possession of the suit accommodation with Defendants Ramsingh, as alleged by him, it

has been contended that the tenancy stood determined by notice Ex.P.1, dated 8.1.1989 given to Ramsingh and the suit for ejectment against

Ramsingh alone cannot be held to be bad or not maintainable and the judgment and decree passed in such suit are not invalid or ineffective as has

been held by the learned Lower Appellate Court. The learned Counsel in support of his submission placed reliance on a decision of the Supreme Court

in Kanji Manji v. The Trustees of the Port of Bombay AIR 1963 SC 468, wherein it has been observed that once it is held that the tenancy was joint, a

notice to one of the joint tenants was sufficient and the suit for the same reason was also good. The suit in that case was filed against both the joint

tenants Rupji Teraji and Kanji Manji, but later, the plaint was amended by striking out the name of Rupji Teraji, who had died even before the suit was

filed and the legal representatives of Rupji Teraji were not joined as parties to the suit.

In reply learned Counsel for the Respondent has submitted that Ramsingh and other legal representatives of the deceased tenant Gopalsingh

cannot be treated as joint tenants since under section 19 of the Hindu succession act, 1956, if two or more heirs succeed together to the property of an

intestate, they shall take the property as tenants-in-common and not as joint tenants.

Learned Counsel has also cited a decision of Delhi High Court in Indra Sharma v. Gopal Dass 1984(2) RCJ 504 in which section 19 of the hindu

succession act has been applied to hold that an ejectment application is not maintainable against one of the heirs of the deceased tenant.

There is, however, a contrary view to be found in a decision of Bombay High Court in the case of Mst. Ramubai v. Jivaram Sharma AIR 1964

Bom 96 to the effect that in a case between landlord and tenant, the heritable interest of the tenant is held by the heirs as joint tenants vis-a-vis the

landlord. The relevant observations in the case of Mst. Ramubai (supra) are as under:

In my judgment, the phrase ""tenants-in-common"" or ""joint tenants"" used in section 19 of the hindu succession act or in other texts, when considering

the rights of owners of property inter se cannot be confused with the right to hold land as joint tenant in the sense as joint lessees or co-lessees or co-

tenants of property such as the subject-matter of the suit. The word ""tenant"" in Section 19 is not used in the sense of lessees. That word is used in the

sense of owners of property or holding in defined shares. It is an incident of ownership that has been referred to in Section 19 and that incident in the

case of persons holding as tenants-in-common the is that devolution in the case of each of these tenants-in-common would be according to the

personal law while in the case of persons holding as joint tenants it will be by survivorship. The expression is not germane in deciding whether the

leasehold is held as joint tenants. That expression may have led to some confusion and it is preferable to refer to rights of more than one person

holding under the leasehold vis-a-vis the landlord as co-tenants or co-lessees. If understood in that sense, there will be no difficulty in holding that all

the co- lessees or co-tenants hold as joint tenants in the sense that they have a single tenancy relationship with the landlord and they are not different

tenants vis-a-vis the landlord.

I find myself in respectful agreement with the view taken by the Bombay High Court and the reasoning therefor as stated in the observations

reproduced hereinabove. In view of the decision of the Supreme Court in the case of Kanji Manji (supra) and the decision of the High Court of

Bombay in the case of Mst. Ramubai (supra), I hold that the suit filed by the Plaintiff-landlord Kanhaiyalal against the tenant Ramsingh is good and

maintainable in which the decree passed by the learned trial Court must be held to be valid and effective which will be binding on the other heirs of the

deceased Gopalsingh, original tenant who had died long years before filing of the instant suit for eviction. The judgment and decree of the learned

Lower Appellate Court directing remand of the case for joining other heirs of deceased Gopalsingh as co-tenants cannot, therefore, be sustained in

law and are liable to be set-aside.

In the result, this appeal succeeds and is hereby allowed. The judgment and decree of the learned Lower Appellate Court are set-aside and the

case is remitted to the learned Lower Appellate Court for deciding the appeal on merits in accordance with law.

Even otherwise, the apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722, has held as under:

It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first

appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but

even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the

appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn

by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot

substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were

erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court,

or was based upon inadmissible evidence or arrived at without evidence.

If the question of law termed as a substantial ques-tion stands already decided by a larger Bench of the High Court concerned or by the Privy

Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial

question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant

should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary

evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found

that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a

substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an

error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR

1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.

In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264, again the apex court has held as under:

Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established

their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was

no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A

schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’

right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the

findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by

the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.

Recently, the Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others : (2017) 9 SCC 586 has held as under:

Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their

case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law

much less substantial question of law, are binding on this Court.

It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also

not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though

concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court.

In view of the above, this appeal does not involve any question of law much less substantial question of law and the same is hereby dismissed.

No order as to costs.