Suresh Chandra And Another vs Shantabai And Others

The appeal under Section 100 of CPC has been preferred by the appellants/plaintiffs against the judgment and decree dated 01.02.2018 passed by

District Judge, Datia, in Civil Appeal No.200025/2016 confirming the judgment and decree dated 14.10.2016 passed by the Civil Judge Class-I,

Bhander, District Datia in Civil Suit No.28-A/2015.

This appeal has been admitted on the following substantial question of law:-

1) Whether Courts below erred while dismissing the suit/appeal on the ground of title also when the issue No.1 was decided against the plaintiff where

relationship of landlord and tenant was not found to be existed between the parties?

2) Whether Courts below erred in not calling the demarcation report when the identity of the property was in dispute?

3) Whether Courts below erred in rejecting the application under Order 41 Rule 27 of CPC without taking into account the importance of documents

sought to be placed on record for adjudication of the controversy?

The necessary facts for the disposal of the present appeal in short are that the plaintiffs filed a suit for eviction as well as for recovery of arrears of

rent on the ground that the property originally belongs to their father Nathuram Sahu and after his death, although the names of the plaintiffs have not

been mutated so far, but they are the owner of the property in dispute by virtue of inheritance. The husband of defendant No. 1 / father of defendants

No. 2 and 3 namely Ramchandra Rao was working in the Police Department on the post of Constable and was posted at Police Station Bhander.

Ramchandra Rao had taken the property on rent about 40 years back and started residing in the same along with his family. During life time of

Ramchandra Rao, the rent was paid regularly. Ramchandra Rao expired in the year 1980 and thereafter the defendants started making payment of

rent to the father of the plaintiffs namely Nathuram Sahu. In the year 2007 father of the plaintiffs namely Nathuram Sahu expired and thereafter the

defendants became the tenant on the monthly rent of Rs.3,000/- and till June, 2014, the defendants have paid the rent regularly. During the last few

years, there is an exorbitant hike in the prices of the properties, therefore, the defendants started pressurizing the plaintiff to transfer the property in

their favour. However, when the appellants refused to alienate the property then the defendants have stopped making payment of rent from the month

of July, 2014 and unnecessarily use abusive language and creates nuisance. The plaintiffs / appellants had accordingly lodged a report on 12.07.2015.

It was further pleaded that the appellants require property in dispute for bonafide requirement for a non-residential purposes and they do not have any

alternative accommodation and in absence of any commercial accommodation, the sons of the appellants are unemployed and the appellants have

sufficient funds for starting the business.

The defendants filed their written statement and denied the plaint averments. It was accepted that father of Ramchandra Rao was working in the

police department and was posted in Police Station Bhander. However, the remaining pleadings were denied. It was denied that the appellants are the

owner of the property in dispute. It was further denied that the property in dispute was ever taken on rent. It was further pleaded that according to the

appellants, the property in dispute is situated in Survey No. 106/1, 106/2 min-1 and 106/2 min-3 but in fact the property in dispute is situated in Survey

No. 111 and the said land does not belong to the plaintiffs. It was further pleaded that when the plaintiffs are not the owner of the property in dispute

then there is no question of payment of rent. It was further pleaded that neither the defendants are tenant of the plaintiffs nor they have taken the

building on monthly rent of Rs.3,000/- and nothing is outstanding against the defendants. It was specifically pleaded that the plaintiffs are not the

owner of the property in dispute and Ramchandra Rao (husband and father of defendants No. 1, 2 and 3) was in possession of the said house and

water connection as well as electricity connection is in the name of Ramchandra Rao which was never objected by Nathuram Sahu father of the

appellants.

The Trial Court after framing issues and recording evidence dismissed the suit on the ground that the plaintiffs have failed to prove that the house in

dispute is situated in Survey No. 111 and, thus, they have failed to prove that the defendants are tenants. Although it was held that the appellants are

in bonafide need for non-residential purposes, but since they have failed to prove ownership of the property in dispute, thus, they are not entitled for

any decree.

Being aggrieved by the judgment and decree passed by the Trial Court, the appellants filed their appeal and that too has suffered dismissal by

judgment and decree dated 01.02.2018 passed by District Judge, Datia in Regular Civil Appeal No. 200025/2016.

Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellants that it is well established

principle of law that the question of title is not required to be proved in case of eviction. Both the Courts below have come to a conclusion that the

house in question is situated in Survey No. 111 whereas it is the case of the appellants that the house in question is situated in Survey No. 106/1, 106/2

and 106/3. Once the Courts below had come to a conclusion that the identity of the suit property is in question, then it should have appointed the local

commissioner to resolve the dispute. It is further submitted that the Appellate Court has wrongly rejected the application filed under Order 41 Rule 27

of CPC without taking into account the importance of documents sought to be placed on record for adjudication of the controversy.

Per contra, the appeal is opposed by the counsel for the respondents. However, it is fairly conceded that both the Courts below have come to a

conclusion that the house in dispute is situated in Survey No. 111. It is fairly conceded by the counsel for the respondents that it is not the case of

respondents that they are the owner of the house in question, on the contrary, it is their contention that in fact Survey No. 111 is a Government land.

Heard the learned counsel for the parties.

It is the case of the plaintiffs/appellants that the house in question is situated in Survey No. 106/1, 106/2 and 106/3, whereas it is the case of the

respondents that house in question is situated in Survey No. 111, which is a Government land and, therefore, they were never the tenants of the

appellants or their father. Thus, in the considered opinion of this Court, question of identity of the property in dispute is involved.

Under these circumstances, this Court is of the considered opinion that the Court below should have appointed the Commissioner to adjudicate the

question of identity of the house. In a suit for eviction, the Court is only required to decide that whether the relationship of landlord and tenant is in

existence or not and the question of title to the properties in question should not be decided [Kindly see (2006) 5 SCC 532 (Bhogadi Kannababu and

others Vs. Vuggina Pydamma and others]. In a suit for eviction, landlord and tenant are the necessary parties and the landlord is required to plead and

prove only two things (i) existence of relationship of landlord and tenant between parties and; (ii) the grounds of eviction mentioned under the relevant

rent law. Title of landlord and tenant is not relevant. If landlord fails to prove his title but proves relationship of landlord and tenant and proves the

grounds for relationship of tenant and landlord, then his suit must succeed. [Kindly see (2018) 2 SCC 352 (Kanaklata Das and others Vs. Naba

Kumar Das and others].

In the present case, the basic question is with regard to the identity of the house in dispute. Although in a suit for eviction, the title of the landlord is

not relevant but the said question can be incidentally considered. In the present case, the only question for consideration is that whether the house in

question is situated in Survey No. 111 as claimed by the defendants or in Survey No. 106/1, 106/2 and 106/3 as claimed by the plaintiffs. When the

identity of the property is in dispute, then the same can be resolved by appointing the Commissioner.

The Coordinate Bench of this Court in the case of Kamal Singh and another Vs. Roop Singh and another reported in 2011 (3) MPLJ 333 has held

as under:-

“4. Learned counsel for the appellant has cited a judgment of this High Court in the matter of Keshav Singh vs. Dhantobai and ors., 2009 (I) MPJR

182 in which it has been held that application for appointing a commissioner may be filed even before casting the issues â€" If the Court deems a local

investigation to be proper for the purpose of elucidating the matter the Court may issue commission. Even after demarcation of land by a Revenue

Officer commission can be issued.

Learned counsel for appellant has also cited the judgment of this High Court in the matter of Hajarilal vs. Jaychand and another, 1999 Revenue

Nirnaya 219 in which it has been held that for a question of encroachment if there is no agreed map, the local commissioner should be appointed

because such a dispute cannot be resolved without appointment of local commissioner. The case was remanded back to the First Appellate Court

after setting aside the judgment and decree passed by First Appellate Court for appointing a commissioner preferably a revenue officer undertake

local investigation and measurements of the disputed land.

Learned counsel for the appellant has also cited the judgment of Hon'ble Apex Court in the matter of Shreepat vs. Rajendra Prasad and ors., 2000

(6) Supreme 389 in which it has been held that the suit for declaration defendant disputing identity of property on the ground that property is not part of

Khasra No....stated in plaint decree only on the basis of oral evidence is not correct. The Court should have got identity of property established by

issuing survey commission. After setting aside the decree, case was remitted back to trial Court for disposal afresh.

Learned counsel for the appellant has also cited the judgment of this Court in the matter of Durga Prasad vs. Parveen Foujdar and others, 1975

MPLJ 801 = 1975 JLJ 440 in which it has been held that in case of dispute regarding encroachment, the dispute can be determined on the basis of

either on agreed map or a report of a Commissioner under Order 26, Rule 9 of Civil Procedure Code. If agreed map is not existing then it can be

decided by appointment of a Commissioner.â€​

Thus, in the considered opinion of this Court, the Courts below have committed material illegality by not directing for appointment of Commissioner

under Order 26 Rule 9 of CPC. It is true that none of the parties had moved the said application before any of the Court so that the dispute can be

resolved, however, this Court in exercise of suo motu power can appoint the Commissioner for the said purpose.

Accordingly, the judgment and decree dated 01.02.2018 passed by District Judge, Datia, in Civil Appeal No.200025/2016 and the judgment and

decree dated 14.10.2016 passed by the Civil Judge Class-I, Bhander, District Datia in Civil Suit No.28-A/2015, are hereby set aside. The matter is

remanded back to the Trial Court for appointing a local Commissioner under Order 26 Rule 9 of CPC in order to find out that on which survey

number, the house in question is situated. The parties are directed to appear before the Trial Court on 05.08.2019 and the Trial Court is directed to

proceed further by appointing the Commissioner and to decide the suit in accordance with the Commissioner's report.

Let the suit be decided within a period of 5 months from today.

Accordingly, the appeal is allowed to the extent mentioned above.