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Judgment
This order will govern disposal of Second Appeal No. 768/2026 and Second Appeal No. 907/2026 as both the second appeals are arising out of Civil Suit No. 20-A/2014.
Short facts of the case are that the respondent Suresh Kumar (HUF) (hereinafter for short referred to as, 'plaintiff') filed a suit for eviction and recovery of arrears of rent and mesne profit against Mahavijay Motor Transport Company and M/s. Jakeriya Brothers on the grounds enumerated under Sections 12(1)(a), 12(1)(b) and 12(1)(f) of Madhya Pradesh Accommodation Control Act, 1961 (hereinafter for short referred to as, 'Act of 1961') stating that the plaintiff Suresh Kumar (HUF) purchased the suit house No. 8, Siyaganj, Indore through registered sale deed on 15/01/2002. The appellant of Second Appeal No. 907/2026 i.e. Mahavijay Motor Transport Company (hereinafter for short referred to as, 'defendant No. 1') was the tenant of the plaintiff in a shop of the suit house situated at ground floor for rent @ Rs. 325/- per month for commercial purposes.
2.1) First ground of eviction pleaded by the plaintiff is that the defendant No. 1 is irregular in payment of rent and rent is due since 15/04/2004 and has not been paid or tendered within two months from the date of service of notice, therefore, the plaintiff is entitled to evict the defendant No. 1 from the tenanted accommodation (hereinafter for short referred to as, 'suit shop').
2.2) The second ground pleaded by the plaintiff in the plaint is that the defendant No. 1 has withdrawn his possession from the suit shop and handed over exclusive possession of the suit shop to M/s. Jakeriya Brothers, the appellant of Second Appeal No. 768/2006 (hereinafter for short referred to as, 'defendant No. 2').
2.3) The allegation of the plaintiff is that the defendant No. 2 is the subtenant in the suit shop and is doing business there without any consent of the plaintiff, therefore, the plaintiff is entitled to decree of eviction under Section 12(1)(b) of the Act of 1961.
2.4) The plaintiff further pleaded that the suit shop is bona fidely required by the plaintiff for starting the business of his major son Nayan, who wants to start the business of Sugar, Ghee, Oil and other grocery items in the suit shop and the plaintiff or his son Nayan are not having any other suitable reasonable accommodation for the said purposes, therefore, the plaintiff is entitled to get decree of eviction under Section 12(1)(f) of the Act of 1961.
2.5) The plaintiff issued a notice on 23/11/2010 and terminated the tenancy of the defendant No. 1 with effect from 31/12/2010. The defendant No. 2 refused to accept the notice, however, the notice was served upon the defendant No. 1 and consequently, the plaintiff filed a suit on 01/02/2011 for eviction, recovery of arrears of rent and mesne profit.
2.6) The defendant No. 1 denied the plaint allegation in toto, however, admitted landlord tenant relation. He pleaded that defendant No. 2 is not a subtenant. The plaintiff does not required the suit shop to start the business of his son. He is having alternate accommodation for the said purpose. His son is already engaged in the business of Cement along with plaintiff. He prays for dismissal of the paint.
2.7) The defendant No. 2 filed a separate written statement, wherein he pleaded that the defendant No. 2 is doing business in the suit shop with the consent of the earlier owner of the house. The defendant No. 2 deposited the rent on behalf of the defendant No. 1 in the Court. The defendant No. 2 submits that the Firm is doing business in the suit house since 1984 and it was requested by the defendant No. 2 to the earlier landlord Smt. Dropadibai to transfer the tenancy of the suit shop in favour of the defendant No. 2, however, she avoided to transfer the tenancy on the ground of legal complications and tenancy was continued in the name of defendant No. 1, whereas the defendant No. 2 was doing business in the suit shop.
2.8) The defendant No. 2 further pleaded that the defendant No.2 is doing business in the suit shop with the consent of the earlier landlord, therefore, no case for eviction on the ground of subtenancy is made out. He denied the allegation of subtenancy and the bona fide requirement of the plaintiff for starting the business of his son Nayan. Defendant No. 2 also pleaded that plaintiff has suitable alternate accommodation for starting the business of his son Nayan.
2.9) The plaintiff examined himself as PW-1 and his son Nayan as PW-2. The defendant No. 1 examined its Proprietor Mohammed Hanif Gouri and defendant No. 2 examined Mohammad Jakeriya.
2.10) The Trial Court after considering the pleadings, oral and documentary evidence and arguments of the parties by judgment and decree dated 29/11/2017 decreed the suit filed by the plaintiff on all the grounds enumerated under Sections 12(1)(a), 12(1)(b) and 12(1)(f) of the Act of 1961 and passed a decree of eviction against the defendants and decree of mesne profits against the defendant No. 1.
2.11) The defendants preferred separate appeals under Section 96 of CPC. The defendant No. 1 preferred RCA No.15/2018, whereas defendant No. 2 preferred RCA No. 14/2018 and both the appeals were decided by common judgment dated 23/01/2026 by XV District Judge, Indore (M.P.), whereby the appeals were partly allowed and the decree passed under Section 12(1)(a) was set aside, whereas the decree passed under Section 12(1)(b) and 12(1)(f) have been maintained against which these appeals have been preferred by the defendant No. 1 and defendant No. 2 before this Court.
Learned Senior Advocate appearing on behalf of the appellants in Second Appeal No. 768/2026 submits that the plaintiff has failed to prove the ground of subtenancy as the defendant No. 2 is not subtenant in the suit accommodation and is not in exclusive possession of the suit shop. He submits that the possession of the defendant No. 2 is permissive and earlier owner of the house Smt. Dropadibai permitted the defendant No. 2 to use this premises for the business purposes. The defendant No. 2 is not in the exclusive possession of the suit premises and defendant No. 1 has not withdrawn himself.
3.1) Learned Senior Advocate further submits that the plaintiff has failed to prove that the defendant No. 2 is paying the rent of the suit premises to defendant No. 1 and in the absence of proof of payment of rent by the defendant No. 2 to defendant No. 1 and the exclusive possession and control of the defendant No. 2 over suit shop, no decree under Section 12(1)
could be passed.
3.2) He submits that the Trial Court as well as First Appellate Court have erred in passing the decree under Section 12(1)(b) of the Act of 1961. He pointed out para 14 of the statement of Suresh Kumar (PW-1), wherein he admitted that when he purchased the suit house in the year 2002, the defendant No. 1 and 2 were the tenants. The witness further admitted that he was not aware of that how much rent defendant No. 2 was paying to defendant No. 1 and rent receipts are not available with him. Learned senior counsel further pointed out from the statement of defendant No. 1 -Mohammed Hanif Gour that he has specifically stated that he has not handed over the possession of the suit shop to the defendant No. 2 in any manner and he himself is doing business in the suit shop.
3.3) Learned Senior Counsel relying on the judgment delivered by Supreme Court in the matter of Dipak Banerjee Vs. Smt. Lilabati Chakraborty reported in AIR 1987 SC 2055, wherein the Supreme Court has held that if the owner of the premises sought to evict the tenant on the ground of subletting part of premises, it is essential to prove that the alleged subtenant is in exclusive possession of the portion and he paid any rent to the tenant. The Supreme Court has further held that in order to prove tenancy or subtenancy, two ingredients are to be established. Firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent.
3.4) Learned Senior Counsel submits that the plaintiff has failed to prove these two essential ingredients and therefore, the judgment and decree passed by the Trial Court and affirmed by the Appellate Court are liable to be set aside.
3.5) Learned Senior Advocate further argued that a decree under Section 12(1)(f) of the Act of 1961 is also not sustainable as the plaintiff has suppressed the availability of a shop in the suit house itself. He submits that Nayan (PW-2) in para 4 of his cross-examination accepted that there are four shops in the suit house. Out of which, one is used by his father for business purposes, another is by his uncle, in one shop defendant No. 1 is tenant and fourth one is vacant.
3.6) He further submits that the plaintiff's witness No. 2 Nayan accepted that he is student of MBA and he is not having any experience of business. He has never did the business of grocery and no one in his family ever did the business of grocery. However, he voluntarily said that he wants to do the business of grocery. Learned Senior Advocate submits that as the availability of the alternate shop has been suppressed by the plaintiff, the plaintiff was not entitled for decree of eviction under Section 12(1)(f) of Act of 1961.
Learned counsel appearing on behalf of the defendant No. 1 in Second Appeal No. 907/2026 in addition to the arguments advanced by learned Senior Advocate, raised further issue that the house was purchased by Suresh Kumar (HUF) and suit was filed by Suresh Kumar (HUF), however, the Trial Court and First Appellate Court in the cause title or memo of parties of the judgment mentioned the name of the plaintiff as Suresh Kumar Khandelwal instead of Suresh Kumar (HUF), therefore, the judgments and decrees passed by the Trial Court and First Appellate Court are not sustainable.
4.1) He further submits that the Trial Court and First Appellate Court have not considered the evidence available on record. The defendant No. 2 was paying the rent directly to the earlier landlord and defendant No. 2 can't be considered as subtenant in the suit shop. He submits that the plaintiff is having the sufficient accommodation in the basement and the first floor of the suit house and plaintiff has not pleaded that the space available at the basement and the first floor are not suitable for starting the business of his major son Nayan.
4.2) Learned counsel further submits that the plaintiff is not having any bona fide and realistic need of suit shop and the Trial Court and First Appellate Court committed error in passing the decree of eviction.
The arguments raised by learned counsel for the appellants are considered and the record of the Trial Court and First Appellate Court are perused.
So far as the exclusive possession of the defendant No. 2 is concerned, the written statement of defendant No. 2 is very material wherein, the defendant No. 2 himself has admitted that he is in exclusive possession of the suit shop. The defendant No. 2 has stated in the written statement that he was depositing the rent in the Court, when the earlier landlord filed the suit and he made a request to the earlier landlord to transfer the tenancy of the suit shop, which was avoided by earlier landlord stating that it will create the legal complications and continued to issue the receipts in the name of defendant No. 1. Meaning thereby his tenancy was never accepted by earlier landlord. He further pleaded that he is doing business in the suit shop with the consent of the defendant No. 1 and the defendant No. 1 in his written statement completely denied this fact that the defendant No. 2 is doing business in the suit shop. However, later on admitted in the cross-examination that the defendant No. 2 is doing business in the suit shop.
Once it is proved by the plaintiff rather admitted by the defendant that he is doing business in the suit shop, the burden was shifted upon the defendant No. 2 to prove that in which capacity he is doing the business in the suit shop, which is owned by the plaintiff. It is not the case of the defendant No. 2 that he is doing business with the consent or permission of the plaintiff and nothing could be brought by the defendant No. 2 on record to prove that earlier landlord permitted the defendant No. 2 to do the business from the suit accommodation except his oral statement, which lacks the credibility.
As the defendant No. 2 accepted that he is doing business from the suit accommodation and the suit shop is in his possession and he deposited the rent in the name of defendant No. 1 in the Court in a suit filed by the earlier landlord, the ingredients of subtenancy are duly proved that the defendant No. 2 was paying the rent and is in exclusive possession of the suit accommodation, therefore, in view of this Court the Trial Court and Appellate Court have not committed any error in holding that the defendant No. 2 is the subtenant in the suit accommodation. This issue was duly proved by the plaintiff and the defendant failed to adduce any credible evidence, which can be relied upon by the Court. Only denial is not sufficient evidence.
Defendant No. 1 is still doing business in the said accommodation could be proved by the defendant No. 1 by submitting the relevant documents of his business, however, no such document filed by the defendant No. 1. In the absence of any credible evidence, it could not be accepted that the possession of the defendant No. 2 in the suit shop is legal. The defendant No. 1 in para 12 and 13 of his cross-examination accepted that for the purpose of doing business, the Shop Establishment Registration is required, which has not been renewed by the defendant No. 1 since 2011. He is not having any document of payment of Income Tax in respect of the business of Mahavijay Motor Transport Company. He also accepted that no document could be filed by the defendant No. 1 to demonstrate that Mahavijay Motor Transport Company is still doing business and more specifically from the suit accommodation.
The defendant No. 2 in his cross-examination accepted that there is no rent receipt or tenancy agreement in existence to demonstrate that he is doing business from the suit shop under the permission of the earlier landlord and he accepted that the rent which he paid, the receipts have been issued in the name of Mahavijay Motor Transport Company, which was being run by Abdul Gafur Gouri, who is already died.
The defendant No. 2 in para 16 of his cross-examination accepted that he is doing business from the suit shop and the business is of his own. He used to open and closes the shop. He voluntarily said that accept him, his staff also opens the shop and closes the shop. There are four persons working in the shop and all of them are in the service of defendant No. 2 and he is paying salary to them. He has obtained the Shop Establishment Licence from the Municipal Corporation for doing the business in the suit shop and accepted that he is in exclusive possession of the suit shop.
The defence of defendants have been demolished by the plaintiff by cross-examining the defendant No. 2 and consequently the ingredients of subtenancy described by the Supreme Court in the matter of Dipak Banerjee (Supra) are duly proved. It is proved that the defendant No. 2 is in exclusive possession of the suit shop and it is also proved that the defendant No. 2 deposited the rent in the Court on behalf of the defendant No. 1.
So far as the decree under Section 12(1)(f) is concerned, the plaintiff Suresh Kumar has categorically stated that no vacant shop is available in the suit house. One shop he is using for his business. Another shop is being used by his brother for his business, one shop they are using for the purpose of godown and the fourth shop is the suit shop, therefore, the contention of the learned Senior Counsel that the plaintiff has suppressed the availability of the alternate suitable accommodation is not acceptable. Even the defendant No. 1 and 2 have not stated in their statements that any vacant shop is available in the possession of the plaintiff. The only one line admission of the son of the plaintiff i.e. Nayan (PW-2) is not sufficient to non-suiting the plaintiff on the ground that alternate suitable accommodation is available.
The plaintiff has proved the bona fide requirement of the suit shop for starting the business of his son, who is major, completed the education and is not doing any business independently. He wants to start the business of grocery. It is trite that lack of experience is not a ground for disbelieving the bona fide requirement of the landlord. It is also not a ground that no one has earlier engaged in the business of grocery in the family and Nayan wants to start the same for the first time without having any experience.
The contention of the defendants that Nayan is doing business of Cement with his father could not be proved, however, it is settled position of law that the major son of the plaintiff will not sit idle till availability of the accommodation for starting his business and he can help his father in his business.
Considering the averments of the parties, oral and documentary evidences, the findings recorded by the Trial Court and First Appellate Court, no Substantial Question of Law involved in this appeals. Consequently, the admission is declined. Both the appeals are dismissed. Judgments and decrees passed by the trial court and first appellate court are affirmed.
Record of the Trial Court and First Appellate Court be returned along with copy of this order. Let a copy of this order be kept in the record of both the appeals.