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Judgment
The plaintiffs/appellants being aggrieved by the judgment and decree dated 20.12.2005 passed by 2nd A.D.J, Sagar, in Civil Appeal No. 1-
A/2005, reversing the judgment and decree dated 16.11.2004, passed by 3rd Civil Judge Class- II, Sagar, in Civil Suit No. 35-A/2003, have
preferred this appeal under Section 100 of C.P.C.
The admitted facts are that the defendants/respondents are in possession of the disputed house. The suit house Nos. 171 and 172 (old No. 28),
Sanichari Ward, Sagar was owned by Mohammed Sabir. The suit house was purchased by the plaintiffs/appellants on 15.10.1992 by registered
sale deed. Some portion of the house was rented to the Police Department and a separate suit has been filed for eviction of that part. The
respondents/defendants are in possession of the first and second part of the house. Earlier it was occupied by their father- Mirazul Haque, who
died 8- 10 years ago. Mirazul Haque was the tenant of Md. Sabir, the erstwhile owner of the house. The plaintiffs/appellants have claimed that
there are several members in their family. They do not have sufficient accommodation in the house where they are living, nor they have any other
accommodation available at Sagar. Therefore, the tenanted house is required for their own living, hence, in bona fide need of the house. Earlier the
house was tenanted to Mirazul Haque by Md. Sabir and a rent deed dated 10.11.1970 was executed. Earlier the rent was Rs.60/- per month but,
subsequently, it was raised to Rs.100/- per month. From 01.01.1983 till June 1983, defendants/respondents paid rent. Receipts of rent paid were
given by Md. Sabir to the respondents/defendants. Thereafter, no rent was paid. Therefore, the defendants/respondents were defaulters. After
their purchase, the plaintiffs received possession of the house. The plaintiffs became the owner of the house on 15.10.1992. The
defendants/tenants neither tried to pay the rent nor they expressed their intent to continue the tenancy. As Mirazul Haque was the tenant of Md.
Sabir, the Lrs/respondents became the tenants of Md. Sabir. After the plaintiffs purchased the suit house, the respondents became the tenants of
the plaintiffs. The defendants/tenants denied the title of the plaintiffs/appellants. Therefore, the plaintiffs are entitled for a decree of eviction. The
plaintiffs sought decree of eviction, possession of the suit house and mesne profit.
The defendants/respondents opposed the contentions advanced by the appellants/plaintiffs and submitted that Ramzan Khan was also the owner
of the house. Md. Sabir had no right to alone execute the sale deeds in favour of the plaintiffs/appellants. The plaintiffs/appellants are not in
requirement of the present house. The plaintiffs/appellants have rented out a portion of the house in the ground floor to Md. Jalil on rent. Mirazul
Haque remained in the house since 1947. Ramzan Khan had gifted the house to Mirazul Haque in the year 1947 and left for Bhopal. Mirazul
Haque then became the owner of the house and was in possession of the house. Ramzan Khan and Md. Sabir never opposed the possession of
Mirazul Haque. Mirazul Haque never given any rent @ Rs.60/- nor @ Rs.100/- per month, for he was never a tenant. Mirazul Haque passed
away in the year 1968.
After the death of Mirazul Haque, Md. Sabir informed defendant- Minhazul Haque that some portion of the house was tenanted to Mirazul
Haque and he was giving Rs.60/- rent per month. Therefore, Minhazul Haque also started paying the rent but later he came to know that the house
was gifted to Minhazul Haque. Therefore, he stopped paying the rent. Md. Sabir took loan from the respondents. Therefore, on 12.04.1985,
Minhazul Haque executed document and the red marked portion of the house was given to Minhazul Haque, since then he has renovated those
portion of the house. Therefore, the plaintiffs/appellants have no right to evict respondents/defendants from the house.
On these pleadings the learned trial Court in Civil Suit No. 35- A/2003 passed the judgment and decree on 16.11.2004. The suit was allowed
and decree of eviction was passed against the respondents/defendants.
Before the 1st appellate Court, the defendants/respondents Minhazul Haque challenged the same on several grounds. Learned 2nd A.D.J,
Sagar in Civil Appeal No. 1-A/2005, setting aside the judgment and decree dated 16.11.2004, held that the learned trial Court erred in
appreciating the evidence. Therefore, the judgment and decree dated 16.11.2014 was set aside.
The appellants/plaintiffs Wahid Bhai, Rashid Anwar, Mohd. Rafique and Mohd. Shafique have preferred this appeal against the Lrs of Minhazul
Haque, Ujharul Haque, Javed and Nasir M. Siddiqui (the defendants).
The contention of the appellants are that the 1st appellate Court committed gross error of law as there was no fresh attornment by the
defendants in favour of the appellants/plaintiffs, who are the purchasers, there can be no relationship between the appellants and defendants as
landlord and tenant.
It is contended that the attornment is brought about by operation of law and there is no need of consequential attornment. The appellants also
contended that the first appellate Court failed to appreciate that the right to receive rent from the lessee in terms of the lease is one of the rights
which passes to assign and lessee cannot say that he is not bound to pay the rent as he used to pay merely because there is no privity of contract
between him and the new landlord. The learned 1st appellate Court failed to appreciate that the transferee possess all rights of the transferor under
Section 109 of the T.P Act and the tenancy does not begin afresh.
It is also contended that no attornment is necessary under the T.P. Act. Section 109 of the T.P. Act provides that the title of assignee is
complete on the execution of the sale deed and is not postponed till the notice of assignment. Though a notice was issued to the respondents in the
present case before filing of the suit. The respondents/defendants failed to deposit rent to the plaintiffs/appellants after the execution of the sale
deed. The liability of the tenants/respondents to pay the rent to the appellants arose from the moment of transfer.
It is further claimed that the defendants have clearly admitted that they did not pay any rent to the appellants/plaintiffs. Therefore, under Section
12 (1) (A) of the M.P. Accommodation Control Act, the appellants are entitled to evict the respondents from the date of service of notice. No
notice under Section 106 of the Transfer of Property Act is necessary in the present case for ejectment though a notice was sent to the
defendants/respondents. The defendants/respondents have taken the plea that the appellants/plaintiffs are not the only owner of the suit house.
Therefore, the plaintiffs/appellants are also entitled to decree for eviction under Section 12 (1) (c) of the M.P. Accommodation Control Act.
It is also claimed that under Section 12 (1) (e) of the M.P. Accommodation Control Act, the plaintiffs/appellants have bona fide need of the
house, for they have no alternative accommodation. The learned 1st appellate Court has failed to consider the same for the same is perverse,
arbitrary and based on misleading evidence.
The following substantial questions of law has been framed by this Court on 04.04.2007.
(i)Whether the finding of the appellate Court that in absence of the attornment in their favour by tenants after purchase, appellants were not
entitled to file a suit for eviction is erroneous and contrary to the provisions of Section 109 of the Transfer of Property Act, 1882?
(ii) Whether the plaintiffs were entitled to file a suit under Section 12 (1) (a) of the M.P. Accommodation Control Act, 1961?
(iii)Whether the defendants were entitled to deny the title on the ground that sale deed was not executed by two more sisters of vendor in favour of
the plaintiffs?
(iv)Whether the appellate Court erred in taking into consideration the alternative accommodation; which is adjoining to the suit accommodation but
belonging to Yusuf, nephew of plaintiffs?
The substantial question of law has been analyzed as follows:- Substantial question of law No. (i):- The property was purchased by the
plaintiffs/appellants from the previous landlord i.e. Md. Sabir vide registered sale deeds dated 15.10.1992 Ex. P/1, P/20, P/21 and P/22. Md.
Sabir and Rashid Anwar- (appellant No. 2) have stated so. Minhazul Haque DW-1 has admitted these documents in his cross-examination para
This establish that plaintiffs/appellants have purchased the tenanted house. In the case of Gyanchand Vs. Narain, 1985 M.PW.N, 359, it has
been held that:-
(i) Transfer of Property Act, 1882- S. 2 (d)- purchaser from previous landlord- becomes landlord of the tenant- provision under has no
application."" 15.
In the case of Narayan Das Vs. Mahila Kamlesh, 2000 (II) M.P. Weekly Notes, 121, wherein a co-ordinate Bench of this Court has held that:-
(i) Transfer of Property Act, 1882- S. 109- property purchased from previous landlord- purchaser acquires all rights of predecessor and
becomes landlord.
(ii) Accommodation Control Act, 1961 (M.P)- S. 23-A (b) - need of landlord to be judged objectively- need for starting business by son not
established- even son not examined- no decree of eviction can be granted.
Therefore, by operation of law, the appellants become the landlords of the suit house. It is difficult to appreciate the contention of the
respondents/defendants that they did not become tenant of the plaintiffs/appellants by operation of law. The provision of Section 2 (d) of the T.P
Act does not help the respondents. In the case of Munnalal Vs. Kailash Chandra, 1998 (1) M.P. Weekly Notes, 207, wherein the coordinate
Bench of this Court has held that:-
(i) Accommodation Control Act, 1961 (M.P)- S. 23- E-revision under powers are wider than under Section 115 C.P.C- even this width does
not entitle to enter into merits of factual controversies.
(ii) Accommodation Control Act, 1961 (M.P)- S. 2 (b) and (i)- ''landlord'' and ''tenant''- purchaser of house- becomes ''landlord''- person residing
therein becomes ''tenant''.
In this regard, reliance has also been placed on Abdul Nabi Vs. Hajarilal, 1985 M.P. Weekly Notes, (24), wherein it has been held that:-
(ii) Transfer of Property Act, 1882- S. 109- plaintiff purchasing house from previous ownerdefendant''s suit for title dismissed- plaintiff becomes
landlord of the defendant.
(iii) Landlord and tenant- plaintiff purchasing house from the previous owner- becomes landlord."" Therefore, the substantial question (i) is
answered in affirmative.
Substantial question of law No. (ii) and (iv) :- As regarding the bona fide need, the plaintiffs/appellants have clearly made out a case that they
have not much accommodation in the present house in which they are residing. Therefore, they require the suit house for their accommodation.
The learned appellate Court at paragraph 42 has given findings on assumptions and presumptions. Whereas the house was purchased by
Yusuf, the son of plaintiff No. 2, in which three rooms are available. It is presumed that Yusuf had purchased the house from the joint family
property and, therefore, the plaintiffs/appellants have joint income and newly acquired house has sufficient accommodation. Therefore, the
appellants have no bona fide need of the suit house. This finding of the appellate Court is based on assumptions and presumptions that the house
has been purchased by the plaintiff No. 2- Yusuf by joint family income seem to be erroneous. In this regard reference can be made to Prem
Kumar Vs. Kanahyalal, 2000, (ii) M.P. Weekly Notes, 4 wherein a co-ordinate Bench of this Court has held that :-
(i) Accommodation Control Act, 1961 (M.P).- S. 12 (1) (e)- requirement of felt need outcome of sincere honest desired established- landlord is
entitled to eviction decree.
(ii) Accommodation Control Act, 1961 (M.P)- S. 12 (1) (e) - Court trying eviction suit- Judge should place himself in armchair of landlord- he
should find out whether need is natural, sincere and honest.
(iii) Accommodation Control Act, 1961 (M.P)- S. 12 (1) (e)- eviction suit under- choice of landlord should be respected.
(iv) Accommodation Control Act, 1961 (M.P)- S. 12 (1) (e)- landlord showing prima facie casepresumption of his bona fide requirement may be
drawn.
(v) Civil P.C. 1908- S. 100- second appealconcurrent finding of bona fide need recorded by two Courts- cannot be assailed as the jurisdiction is
limited.
In the case of Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, decided by the Apex Court on 30.07.1999 in Civil Appeal No. 4166 of
1999, the Court had clarified that ""a requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra- distinction with
a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family
would entitle him to seek ejectement of the tenant. The Apex Court had made it clear that the Court would permit the landlord to satisfy the proven
need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its
own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his
need. The concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too
liberal or too conservative or pedantic must be guarded against.
Counsel for the appellants placed reliance on Hamida Vs. Md. Khalil, 2001 (II) M.P.W.N, 94 in which the Hon''ble Apex Court has held
that:-
(2) Accommodation Control Act, 1961 (M.P)- Ss. 12 (1) (e) and 12 (1) (f)- large number of family members with newly married son- cannot be
accommodated in three rooms- need rightly assessed as bona fide.
Therefore, on the factual and legal aspect analyzed as above, the substantial question Nos. (ii) and (iv) are answered in affirmative.
Substantial question of law No. (iii) :- The defendants/respondents are the tenants in the present case. They have no rights whatsoever to
suggest that the sale deed was not executed properly in favour of the plaintiffs/appellants/landlord.
The ""words"" used in Section 12 (i) (c) of the M.P. Accommodation Control Act clearly appear that the words ""any act"" in clause (c) have not
been used in relation only to physical acts on the part of the tenant. Whenever the Legislature uses the word ""any,"" it means ""each and every"" and,
therefore, the words, ""any act"" must and ought mean each and every act which is likely to affect adversely and substantially the interest of the
landlord. A denial of landlord''s title undoubtedly affects him adversely, and it also affects him substantially.
The denial of landlord''s title undoubtedly affects him adversely and it also affects him substantially. In this regard reference can be made to
Nebraj Vs. Amrit Kaur, 1973 M.P.L.J, 386 and Ghulam Mohd. Vs. Punamchand, 1969 MPLJ 843. ""Where there is a ''disclaimer,'' mere
''disclaimer'' is sufficient to constitute an act which is likely to affect adversely and substantially the interest of the landlord in the accommodation
constituting a ground for his eviction under section 12 (1) (c) of the Act without further proof that the ''disclaimer'' is likely to affect his interest
adversely and substantially.
In the present case, the respondents/defendants have taken a plea that the sale deed executed in favour of the plaintiffs/appellants have not
been properly executed. It is denial of landlord''s title affecting him adversely and substantially. In this regard reference can also be made to
Nirvikar Vs. Ramkumar, AIR 1992 MP 115. Therefore, substantial questions No. (iii) is answered in affirmative.
In this view of the matter, I find it difficult to sustain the impugned judgment dated 20.12.2005 passed by IInd A.D.J, Sagar. Hence, this
appeal is allowed. Impugned judgment and decree are set aside The judgment passed by the trial Court on 16.11.2004 is restored. The appellants
are entitled to cost of Rs.5,000/- from the defendants/respondents.