Ram Singh Tomar and Others vs Bhagwan Gupt and Others

U.C. Maheshwari, J.—The defendants-tenants have filed this appeal u/s 100 of the CPC challenging the sustainability of the judgment and decree dated 03rd December, 2009 passed by 13th Additional District Judge, Gwalior in Civil Regular Appeal No. 11-A/09 affirming the judgment and decree dated 22nd June, 2009 passed by 8th Civil Judge Class II, Gwalior in civil original suit No. 32-A/09 whereby the suit filed by the respondents/plaintiffs against the appellants with respect of non-residential premises situated at Gwalior and described in the plaint has been decreed on the ground enumerated u/s 12(1)(f) of the M.P. Accommodation Control Act, 1961 (for brevity, the "Act"). The facts giving rise to this appeal, in short, are that the respondents filed the above mentioned suit against the appellants for their eviction from the aforesaid premises described in the plaint on the grounds available under sections 12(1)a), 12(1)(c) and 12(1)(f) of the Act. As per the pleadings, the plaintiffs/respondents became the landlord of the appellants by purchasing the property in question in consideration from its earlier registered owner namely Anwari begum, through registered sale deed dated 08th January, 2004. An averment regarding attornment of the tenancy is also stated in the plaint. Pleadings about notice of demand of arrears of rent are also made. It appears from the entire plaint that after giving notice regarding payment of arrears of rent as well as termination of tenancy, the impugned suit was filed on the ground of arrears of rent, nuisance, i.e. denial of tenancy and bona fide genuine requirement of the respondents for non-residential purpose.

In the written statement of the appellants, derivative title of the respondents has been challenged stating that no intimation regarding attornment of the sale transaction was given by the appellants and in such premises, from time to time, rent of the accommodation was paid to Anwari Begum, the landlord and there is no arrears of rent. It is also stated that the concerning sale deed by which the house was purchased by the respondents is in dispute at the instance of the seller of such document. The alleged requirement of respondent No. 2 has also been denied with the averment that the respondents are having sufficient alternate accommodation with them with respect to the alleged need. Description of some other available alternate accommodations with the respondents is also stated. By way of amendment, it was also stated that during pendency of the suit, the respondents have got vacated possession of some accommodation, so in such premises also, the alleged need has come to an end. In such premises, the prayer for dismissal of the suit is made.

After framing issues and recording the evidence, on appreciation of the same, the suit of the respondents was not found to be proved by the trial court on the ground of arrears of rent and nuisance, i.e. under sections 12(1)(a) and 12(1)(c) of the Act and consequently, on such counts, the suit was dismissed. But the same was decreed on the ground of bona fide genuine requirement of respondent No. 2 for non-residential purpose. The relationship of landlord and tenant was also found to be established between them.

On challenging the said judgment and decree of the trial court by the appellants herein before the subordinate appellate court, on consideration, by affirming the same, the appeal was dismissed, on which the appellants have come to this Court with this appeal.

Shri K.S. Tomar, learned Senior Counsel assisted by Shri J.S. Kaurav, learned counsel for the appellants after taking me through the records of the courts below, alongwith impugned judgments argued that the sale deed on which the respondents are claiming their title over the property is sub judice in another matter at the instance of the seller herself and, therefore, on the basis of such sale deed, the respondents could not be treated to be the owners of the disputed house, and the impugned suit being filed by the respondents on the ground of bona fide genuine requirement for non-residential purpose, could not be decreed unless ownership of the house is proved in their favour. Till the decision on the validity of the impugned sale deed, the impugned suit could not have been decreed by the trial court as well as appellate court on the ground of bona fide genuine requirement. In such premises, he stated that the respondents having claimed relationship of landlord and tenant with the appellants on the basis of derivative title from Anwari Begum and when the document of sale itself is sub judice, the respondents could not be treated as landlord for the purpose of granting a decree u/s 12(1)(f) of the Act and in such premises, the decree is not sustainable. He also argued that the respondents have failed to put forth the account in their pleadings regarding unsuitability of available alternate accommodation with them and whatsoever evidence has been adduced by them, the same being contrary to the existing pleadings, the impugned suit could not have been decreed. However, the courts below have not considered the principles regarding the difference between the pleadings and proof. In fact, in the lack of proper pleadings, the suit could not have been decreed by the courts below, hence, the decree is not sustainable. He further argued that in the entire pleadings of the plaint, either initially on filing of the suit or amended subsequent thereof, specific nature of the business for which the premises is required by respondent No. 2 has not been pleaded. In the lack of such material pleadings, mere on the basis of deposition of the plaintiffs showing their requirement, the suit could not be decreed. He also argued that while considering the question of bona fide genuine requirement, the availability of alternate accommodation with the respondents in his ancestral property was not taken into consideration. In continuation, he sated that in appeal on behalf of the appellants to produce additional evidence, one application under order 41 rule 27 of CPC was filed on 10/11/2009 while another application was filed under Order 6 Rule 17 of CPC on the same day to amend the written statement regarding availability of some other alternate accommodation with the respondents for their alleged need, but such applications have not been properly considered and have been dismissed under wrong premises. In this regard, he argued that application for amendment or to produce additional evidence could not be dismissed on their merits at the initial stage, but by adopting a lenient view, the same ought to have been allowed by the appellate court. He, therefore, prayed for admission of this appeal on the proposed substantial questions of law mentioned in the appeal memo. He also placed reliance on the case laws, viz. Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, , Ramesh Kumar and Another Vs. Furu Ram and Another etc., , Hasmat Rai and Another Vs. Raghunath Prasad, , Smt. Gayatri and Others Vs. Ashish Kumar, and Banarsi Devi Jain Vs. M.P. Transport Company and Another, .

Having heard counsel at length, keeping in view the arguments, I have gone through the records of both the courts below alongwith impugned judgments so also above mentioned applications filed by the appellants before the appellate court under Order 41 Rule 27 and Order 6 Rule 17 of CPC so also the aforesaid case laws cited by the learned Senior Counsel appearing on behalf of the appellants.

It is an apparent fact in the matter that the respondents herein after purchasing the disputed property from its earlier owner Anwari Begum had become the owner of the property and as per available pleadings and evidence, intimation regarding such sale transaction was given to the appellants, and accordingly, the tenancy was attorned in favour of the respondents. Even otherwise, if a registered sale deed is executed by the owner of the property in favour of some other person then by operation of law on the basis of registered sale deed, unless the same is set aside by any competent court, the purchaser deserves to be treated as owner of the property for all purposes. In the case at hand, it is apparent that alleged sale deed has not been set aside by any court of law or operation of the same has not been stayed. So in such premises, mere on account of pendency of some litigation against the respondents with respect of the sale deed at the instance of the seller, it could not be assumed or deemed that the respondents did not acquire title or ownership of the disputed house. So in such premises, the approach of the trial court holding the respondents to be the landlord of the appellants for all purposes including the purpose of the ground of section 12(1)(f) of the Act could not be said to be faulty in any manner. Even otherwise, there is settled proposition of law that concurrent findings of the courts below on the question of relationship of landlord and tenant being findings of fact cannot be interfered with u/s 100 of CPC at the stage of second appeal. In such premises, this appeal could not be admitted on such ground by framing any substantial question of law. My such view is based on the dictum of the Apex Court in Kalyan Singh Vs. Ramswaroop and Another , so also on the dictum of the Apex Court in the matter of Dr. Ranbir Singh Vs. Asharfi Lal, . Such principle is further followed by this Court in the matter of Machala Bai Vs. Nanak Ram, .

In view of the aforesaid legal position the submissions and the arguments of the learned Senior Counsel of the appellants that the respondents could not be treated to be the landlord for the purpose of section 12(1)(f) of the Act have not appealed me and the case laws cited on behalf of the appellants in this regard being distinguishable on facts from the facts of the present case are of no help to the appellants.

Coming to consider to find out the probability to form the substantial question of law on the ground of availability of alternate accommodation with the respondents with respect of their alleged need is concerned, on going through the judgments of both the courts below it is apparent that each and every objection raised by the appellants was considered by the courts below through appreciation of the available evidence and concurrently it was held that whatsoever alternate accommodation is shown by the appellants with the respondents is neither sufficient nor convenient to the respondents for their alleged need and in that premises, the aforesaid both the interlocutory applications of Order 41 Rule 27 and Order 6 Rule 17 of CPC have been dismissed by the appellate court. For dismissal of such applications, whatsoever reasons have been assigned by the appellate court that appears to be in consonance with the records and the same does not require any interference at this stage. So on the ground of availability of alternate accommodation with the respondents for the alleged need or dismissal of above mentioned applications of the appellants, this Court has not found any circumstance to frame any substantial question of law. So there is no scope on such grounds also.

Simultaneously, availability of alternate accommodation with the respondents themselves or of the joint Hindu family does not require any reconsideration at this stage when there is concurrent finding of both the courts below on appreciation of evidence holding that whatsoever alternate accommodation is shown by the appellants with the respondents the same is neither sufficient nor convenient to the respondents being a finding of fact cannot be interfered with u/s 100 of CPC at this stage.

Apart from above, the law is almost settled on the question that house of a join Hindu family cannot be treated or held to be an alternate accommodation for the coparcener if the coparcener is having independent house and by alleging the need of such house the suit is filed by him, although in the present matter, all the alleged available alternate accommodation shown by the appellants have been considered and answered by the courts below, so on that question also there is no scope for admission of this appeal.

Coming to consider the prayer of the appellants that in the lack of proper pleadings about the nature of business in the suit, merely on the basis of the available adduced evidence, it could not be inferred that the need of the landlord is bona fide and genuine. The law is almost settled that the landlord is not always bound to state the nature of business in the plaint or availability of fund or experience with respect of the business because such questions have already been settled in various decisions by the Apex Court as well as by this Court that now a days, for the purpose of bona fide and genuine requirement, the pleadings of the nature of business, the availability of fund or experience of some specific business to the landlord or the person for whose requirement the suit is filed is not necessary and such thing could be proved by way of evidence. In such premises, the courts below have not committed any error in holding the alleged need of the respondents bona fide and genuine with respect of the disputed premises. Apart from the aforesaid, the law is well settled by the Apex court that concurrent findings of the courts below on the ground of bona fide and genuine requirement either way being the findings of fact could not be interfered with u/s 100 of CPC at the stage of second appeal as laid down by the Apex Court in the case of Dr. Ranbir Singh (supra). So in such premises also, on examination of the matter, I have not found any circumstance requiring any consideration at this stage by framing substantial question of law u/s 100 of CPC.

So far as case law cited on behalf of the appellants are concerned, this Court does not have any dispute regarding the principles laid down in those cases, but the same being distinguishable on facts are not of any help to the appellants for admission of this appeal.

In view of the aforesaid discussions, in the lack of any circumstance giving rise to any substantial question of law, this appeal being devoid of any merits, deserves to be and is hereby dismissed at the stage of motion hearing.

At this stage, considering the oral submissions of the learned Senior Counsel appearing of the appellants which were also made in alternate on the date of arguments saying that if this Court comes to the conclusion that there is no scope for admission of the appeal then some reasonable period be extended to the appellants to vacate the premises in question, for which the respondents'' counsel Shri Jai Prakash Sharma and Shri M.B. Mangal have also given their consent that if some reasonable time is extended to the appellants to vacate the suit premises, then in that circumstance, some reasonable terms and conditions be also imposed on the appellants so the respondents may take possession of the disputed premises peacefully.

So considering the overall circumstances of the case, keeping in view that the appellants are running their business in the disputed premises since long, and it would not be possible for them to vacate the same on some early date within two months or some smaller period, so I deem fit to extend them the period to vacate the suit premises upto 30th June, 2014 with some terms and conditions. Pursuant to it, subject to following terms and conditions the appellants are extended the period upto 30th June, 2014, for vacating the suit premises and handover it''s peaceful possession to the respondents.

(A) The appellants shall deposit the entire decreetal sum (including the arrears of rent) in accordance with the impugned decree within 30 days from today with the trial Court along with an undertaking that he shall vacate the disputed shop peacefully and handover it''s possession to the respondents on or before 30.06.2014.

(B) The appellants shall also pay the mesne profit in connection of using the aforesaid disputed shop at the rate of Rs. 450/- per month i.e. equal to the monthly rent as held by the Courts below within 15 days from the end of every Gregorian calendar month till vacating the premises within the aforesaid period. If, such amount is not accepted by the respondents then, it will be deposited by him with the trial/executing Court.

Subject to aforesaid compliance the eviction part of the impugned decree till 30.06.2014, is hereby stayed.

It is further observed that if any of the aforesaid terms or conditions is violated by the appellants, then the respondents as well as the executing court shall be at liberty to execute the decree at once without any further order or direction of this Court. In the available circumstances, there shall be no order as to the costs.