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Hon'ble Judges/Coram:
A.K. Shrivastava, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. S.K. Dwivedi, Advocate
Subject: Tenancy
Acts/Rules/Orders:
Indian Evidence Act, 1872 - Section 116; Madhya Pradesh Accommodation Control Act 1961 -
Section 12 (1), Madhya Pradesh Accommodation Control Act 1961 - Section 12 (1) (c), Madhya
Pradesh Accommodation Control Act 1961 - Section 12 (1) (f), Madhya Pradesh Accommodation
Control Act 1961 - Section 12 (1)(f), Madhya Pradesh Accommodation Control Act 1961 -
Section 12(1), Madhya Pradesh Accommodation Control Act 1961 - Section 12(1) (c), Madhya
Pradesh Accommodation Control Act 1961 - Section 12(1) (f), Madhya Pradesh Accommodation
Control Act 1961 - Section 2 (b), Madhya Pradesh Accommodation Control Act 1961 - Section
25; Transfer Of Property Act, 1882 - Section 111 (g)
Cases Referred:
Nirvikar Gupta vs. Ram Kumar MANU/MP/0028/1992; Sheela and Ors. vs. Firm Prahlad Rai
Prem Prakash MANU/SC/0150/2002; Prem Narayan Barchhiha vs. Hakimuddin Saifi
MANU/SC/0440/1999; Manorama Bahadur and Others vs. A.C.M. Swami MANU/MP/0161/1976;
Devraj s/o Baldev Prasad Sharma vs. Naina Devnani w/o Ramesh Devnani and others
MANU/MP/0953/2007; Anar Devi (Smt) vs. Nathu Ram MANU/SC/0712/1994
Disposition:
Appeal Allowed
Citing Reference:
Discussed 3
Mentioned 1
Relied On 2
Case Note:
Tenancy - Eviction - Section 12 (1) (c) and (f) of M.P. Accommodation Control Act,
1961 - First Additional District Judge upheld order passed by Second Civil Judge
decreeing suit of Plaintiff/Respondent for eviction - Hence, this second Appeal -
Ratio Decidendi
"If Plaintiff is not found to be owner of suit property, suit accommodation shall not be
considered to be needed by him bona-fidely for his own requirement."
JUDGMENT
A.K. Shrivastava, J.
1. This is tenant's/defendant's second appeal against the judgment and decree dated 9-9-2003
passed by learned First Additional District Judge, Katni in Civil Appeal No. 41-A/2002, whereby
the judgment and decree dated 29-4-2002 passed by learned Second Civil Judge, Class II,
Katni in Civil Suit No. 11-A/1998 decreeing the suit of plaintiff/respondent has been affirmed.
The facts necessary for disposal of this second appeal lie in narrow compass. Suffice it is to say
that the plaintiff/respondent on the basis of relationship of landlord and tenant filed a suit for
eviction against defendant/appellant on the ground envisaged under Section 12 (1) (c) and (f)
of M.P. Accommodation Control Act, 1961 (for brevity "Act").
2. The appellants are the L.Rs. of defendant/tenant who had died during the pendency of this
second appeal. In brief the case of plaintiff is that he is the landlord of the tenanted premises
3. The defendant by filing written statement denied the bonafide need of plaintiff, although he
admitted the rate of rent to be ` 1600/- per month of the suit premises. The factum of tenancy
has not been denied by him in the written statement. On the other hand he has admitted that
he is the tenant of plaintiff of the suit accommodation given for non-residential purpose.
However, so far as the ownership of the suit premises is concerned, the tenant has pleaded that
he is requesting that the ownership part be proved by the plaintiff and this is also indispensable
because in respect to ownership for the year 1977-78 to 1995-96 in the record of Municipal
Corporation Mudwara (Katni) the name of plaintiff as owner of the suit property is not
mentioned and hence defendant by paying respect to the law and without prejudicing the
plaintiff's right in order to provide justice pleaded in the written statement and prayed to the
Court that plaintiff may be asked to prove his ownership. Further, defendant pleaded that in the
year 1996-97 also in the municipal record plaintiff has not been shown to be owner of the suit
premises however, anyhow, he got his name entered in the municipal record in the later year.
Although, earlier to 1996-97 throughout Dhanya Kumar, Rajkumar and Krishna Kumar have
been shown to be the owners of the suit premises.
4. The defendant also specifically denied in so many words in the written statement about the
alleged bonafide need of the plaintiff for himself and for his two major sons and also denied that
plaintiff is not having any other reasonably suitable vacant non-residential place of his own in
the township. Further, he had denied the allegations of plaintiff that he (defendant) ever gave
any assurance to plaintiff that suit accommodation would be vacated by him till 1-4-1997 and
hence it has been prayed that suit be dismissed.
5. After the written statement was filed, looking to its averments, the plaintiff amended his
plaint and pleaded that earlier the owner of the suit property was one Mahadev Prasad Agrawal
and plaintiff was his Purohit (a Brahmin who often offers Puja in the house of a person) and
because plaintiff was offering Puja etc., therefore, said Mahadev Prasad in consideration of
service of Puja rendered by the plaintiff, gave the suit property to him and declared him to be
the owner of the suit property. Said Mahadev Prasad also delivered possession of the suit
property to the plaintiff and thereafter the plaintiff inducted the defendant as his tenant 20
years ago and the defendant by accepting to be his landlord is paying monthly rent to him
regularly. In the rent receipts also the plaintiff has been mentioned as the landlord of the
defendant and the defendant by accepting the plaintiff to be his landlord has signed the rent
receipts. Further, it has been pleaded by the plaintiff by way of amendment that defendant
never objected that plaintiff is not his landlord. Not only this by accepting the plaintiff to be his
landlord, the defendant in Case No. 11/A/90 (3) 1996-97 filed a case under Section 25 of the
Act before the Rent Controlling Authority praying the said authority to permit him to deposit the
rent and before the said authority, he also deposited the rent. Hence, the defendant cannot
challenge the title of the landlord/plaintiff.
6. Simultaneously, plaintiff further amended his plaint praying the Court that since the
defendant has denied his title of the plaintiff, therefore, a decree of eviction on the ground
under Section 12 (1) (c) of the Act be also passed.
7. After the plaint was amended, the defendant also amended his written statement and denied
8. On the basis of averments made in the plaint and denial in the written statement, learned
Trial Court framed necessary issues and after recording the evidence of the parties found that
the plaintiff is entitled for decree of eviction under Section 12 (1) (c) and (f) of the Act.
9. The defendant being dissatisfied by the judgment and decree of Trial Court filed first appeal
before the learned First Appellate Court, which has also been dismissed by the impugned
judgment and decree.
10. In this manner, this second appeal has been filed by defendant/tenant in this Court, which
was admitted on 20-8-2004 on the following substantial questions of law:--
11. Shri S.K. Dwivedi, learned Counsel for appellant/defendant by inviting my attention to
clause (c) of Section 12 (1) of the Act has submitted that nowhere the defendant has set-up the
title of suit premises in himself and very clearly he has pleaded that by paying all the respect to
the law and without prejudicing the right of the plaintiff in order to serve the justice, the tenant
is requesting the Court that plaintiff be asked to prove his ownership because nowhere earlier
to 1996-97 his name was ever entered in the municipal record as owner of the suit property, on
the contrary the names of Dhanya Kumar, Rajkumar and Krishna Kumar Agrawal were entered
as owner of the suit property.
12. Further, it has been contended by learned Counsel that after the plaintiff amended his
written statement by pleading that at the time of obtaining the suit premises from Dhanya
Kumar and his father Dharamdas Agrawal on their assurance and understanding provided to
defendant and his father Kishan Chand that because several disputes would rise in regard to
income tax and property tax etc., therefore, plaintiff shall issue receipt in his name to the
defendant mentioning him to be the landlord of defendant, and because the defendant was in
need of the suit premises, therefore, in such a situation, he accepted the plaintiff to be his
landlord and therefore, in these facts and circumstances, if the clear picture is shown it cannot
be said that on the basis of such pleading the tenant has denied the title of plaintiff and his
pleading will never adversely or substantially affect the interest of the landlord/ plaintiff. In
support of his contention, learned Counsel has placed heavy reliance on the decision of learned
Single Judge of this Court (Justice R.C. Lahoti, J. as His Lordship then was) in Nirvikar Gupta
13. By addressing on the second substantial question of law it has been propounded by Shri
Dwivedi, learned Counsel for appellant that bonafide need envisaged under Section 12 (1) (f) of
the Act can be conveniently divided into two categories. According to learned Counsel in the
first category the bonafide need of the landlord can be considered for the purpose of continuing
or starting his business or that for his any major son or unmarried daughter if he is owner
thereof and the second category contemplates and authorises the landlord to file suit on the
ground of bonafide need of any other person for whose benefit the accommodation is held with
a further stipulation in both the categories the landlord must not have any other reasonably
suitable vacant non-residential accommodation of his own in the city or town concerned. Thus,
according to learned Counsel the word "owner" is having great significance for the purpose of
this clause in passing the decree of eviction. Specifically, learned Counsel argued that it is not
his submission that in order to prove the ownership in a suit of eviction under Rent control
Legislation, the landlord is required to prove strict legal title as the same is required to be
proved in a title suit, however, still it is having some significance although in a narrow sense,
but, certainly it is having some wider connotation for the purpose of this clause in comparison
to the other clauses of Section 12 (1) of the Act. Learned Counsel submitted that after
amending the plaint, the pleadings of ownership which plaintiff has pleaded, he cannot be
accepted under the law to be the owner of the suit property because according to plaintiff the
suit property was originally belonged to Mahadev Prasad Agrawal whose son was Dharamdas
and Dharamdas's son is Dhanya Kumar and without alienating the suit property by way of sale,
gift or any other mode of a valid conveyance recognised by law, the suit property cannot be
alienated to plaintiff. According to learned Counsel admittedly there is no registered document
of conveyance of the suit property which is immovable, in favour of the plaintiff.
14. Learned Counsel further submits that had the case been filed by present plaintiff in the
second category of Section 12 (1)(f), the matter would have been different. But, in order to
bring the case within the ambit and scope of first category of clause (f) of Section 12(1) of the
Act, the plaintiff was legally bound to prove his ownership which may be narrower in
comparison to the title suit, but, it is wider than that of other clauses envisaged under Section
12 (1) of the Act. In support of his contention, learned Counsel has placed reliance on the
decision of Supreme Court in Sheela (supra) and also another decision of Supreme Court in
Prem Narayan Barchhiha Vs. Hakimuddin Saifi, MANU/SC/0440/1999 : (1999) 6 SCC 381.
Learned Counsel submits that although in Prem Narayan's case, the appeal of landlord was
allowed by the Apex Court by passing a decree of eviction but in Para 12 how clause (f) to
Section 12(1) is to be interpreted, the Supreme Court has thrown sufficient light on it and the
present appeal is to be examined on the anvil and touchstone of norms fixed by the Supreme
Court in Para 12 of the said decision. Learned Counsel has also placed reliance on Single Bench
decision of this Court in Manorama Bahadur and others Vs. A.C.M. Swami,
MANU/MP/0161/1976 : 1978 JLJ 416. Hence, according to learned Counsel for appellant since
the grounds envisaged under Section 12 (1) (c) and (f) are not proved, by allowing this appeal
the impugned judgment passed by two Courts below be set aside and the suit be dismissed.
15. On the other hand, Shri Jain, learned Counsel for respondent/plaintiff submitted that
admittedly defendant is paying rent to plaintiff for a considerable long period, and therefore,
under Section 116 of the Evidence Act, he is estopped from challenging the plaintiffs title.
Learned Counsel submits that admitting the plaintiff to be his landlord, the defendant submitted
the application under Section 25 before the Rent Controlling Authority praying to the said
Authority to permit defendant to deposit the rent. Hence, if now the defendant is disowning the
16. It has been then contended by learned Counsel for respondent that if the tenant is denying
the title of his landlord without setting up a title in himself or in third person then it would mean
that although he is denying the title of his landlord and is not setting up his title in himself or in
third person, but, he cannot be evicted from the suit premises and this cannot be the intention
of the Legislature and, therefore, in this backdrop the decisions of Sheela (supra) and Devraj
(supra), should be considered.
17. Further, it has been contended by learned Counsel for the respondent that for all practical
purposes, the plaintiff being owner of the suit premises so far as the defendant is concerned,
therefore, rightly a decree of eviction under Section 12 (1) (f) of the Act has been passed.
Learned Counsel has also placed heavy reliance on the decision of Supreme Court in Anar Devi
(Smt.) Vs. Nathu Ram, MANU/SC/0712/1994 : (1994) 4 SCC 250, and argued that what is the
meaning of word "owner" used in Section 12 (1) (f) of the Act should be seen on the touchstone
of principles laid down by the Supreme Court in this decision. On the aforesaid submissions, it
has been submitted by learned Counsel for respondent that this appeal is having no force and,
therefore, the same be dismissed.
18. Having heard learned Counsel for the parties, I am of the view that this appeal of tenant
deserves to be allowed.
19. To deal with the rival contentions of learned Counsel for parties on the touchstone and anvil
of grounds of eviction envisaged under Section 12 (1) (c) and (f) of the Act, it would be
appropriate to go through the Preamble, object and nature of the Act.
An Act to provide for the regulation and control of letting and rent of
accommodations, for expeditious trial of eviction cases on ground of "bonafide"
requirement of certain categories of landlords and generally to regulate and control
eviction of tenants from accommodations and for other matter connected therewith
or incidental thereto.
On bare perusal of the Preamble, it is gathered that the Act has been enacted to regulate and
control eviction of tenants from accommodation. The words "regulate" and "control" of tenants
are deliberately used by the Legislature so that it may be beneficial to landlords as well as to
the tenants. According to me, the Legislature will never use surplusage words. The object of the
Act is to provide protection to the tenants by preventing unscrupulous and veracious landlords
from evicting the tenants. Looking to the aim of the Legislature obviously it is not to extinguish
all the rights of landlords and the reasonable restrictions are provided under the Act itself to the
20. The grounds of eviction envisaged under clause (c) of Section 12 (1) of the Act can be
further sub-divided into three clauses. Under the first sub-clause the landlord is entitled to have
a decree of eviction if the tenant or any person residing with him has created a nuisance. The
second sub-clause authorises landlord to seek a decree of eviction if the tenant has done any
act which is inconsistent with the purpose for which he is admitted to the tenancy of the
accommodation and under the third sub-clause a decree of eviction shall be passed if any act
has been done by the tenant which is likely to affect adversely and substantially to the interest
of the landlord. It would be germane to quote Section 12 (1) (c) of the Act in its entirety, which
reads thus:--
Section 12 (1) (c) that the tenant or any person residing with him has created a
nuisance or has done any act, which is inconsistent with the purpose for which he
was admitted to the tenancy of the recommendation, or which is likely to affect
adversely and substantially the interest of the landlord therein. Provided that the
use by a tenant of a portion of the accommodation as his office shall not be deemed
to be an act inconsistent with the purpose for which he was admitted to the
tenancy.
21. In the present case, the plaintiff/respondent has filed the suit of eviction under the third
sub-clause to clause (c). Hence, in order to give any finding whether the plaintiff's suit is liable
to be decreed under the said clause, it is to be seen whether defendant/appellant has done any
act, which is likely to affect adversely and substantially the interest of plaintiff and in order to
arrive at a conclusion in this regard it would be condign to see the pleading of the defendant
because originally the suit was not filed by the plaintiff seeking decree of eviction under this
clause, but it was filed on the sole ground of bonafide requirement envisaged under Section 12
(1) (f) of the Act. Indeed, after filing of the written statement a decree of eviction under sub-
clause (c) of Section 12(1) of the Act has been sought by the landlord. Hence, in order to take
out the grain from the chaff whether any such act has been done by the defendant, which has
adversely and substantially affected the right of the plaintiff, the pleading of the defendant in
the written statement is required to be seen and it would be appropriate to quote necessary
pleading made by defendant in Para 1 of his written statement, which reads thus:--
22. On bare perusal of Para 1 of the written statement this Court finds that very humbly the
23. A very interesting part in the present case is that the plaintiff examined Dhanya Kumar as
P.W. 2 and when cross-examination was started upon him, unfortunately, it was not, completed
because Court's time was over and, therefore, this witness was given-up by plaintiff later on
and was never called for further cross-examination and, therefore, again one can infer why he
was given-up and not put for cross-examination. Because in cross-examination when this
witness was cornered, he has admitted that his name alongwith the names of his other brothers
has been entered as owner in the municipal record not only in regard to the suit property but
also in respect to several other immovable properties in the township. This point was further
cross-examined but unfortunately Court's time was over and the cross-examination was
deferred to next date of hearing 14-5-2001. On 14-5-2001 plaintiff's uncrossed witness Dhanya
Kumar was not present and a date was sought on behalf of plaintiff and matter was adjourned
to 27-7-2001. On this date and also on 24-8-2001 said witness Dhanya Kumar was not present
although other witnesses of plaintiff were examined. Similarly, on next date 19-9-2001 some
more witnesses of plaintiff were examined but said witness Dhanya Kumar did not remain
present. Ultimately on 24-9-2001 plaintiffs Counsel stated to the Court that his evidence is over
and he does not want to examine any more witness and in this manner said witness Dhanya
Kumar was not further cross-examined.
24. In the aforesaid backdrop, if we uplift the veil, the hidden malafide idea of seeking eviction
of defendant is exposed that in order to create a ground of eviction of alleged bonafide need
firstly the name of plaintiff was entered in the municipal record as owner and thereafter the
truth may not come out from the mouth of witness Dhanya Kumar when he was cornered
during cross-examination that indeed plaintiff is not the owner of the suit property and this
witness alongwith his brothers, is the owner of the suit property and the defendant/tenant was
asked to accept the plaintiff as his landlord on the assurance and the understanding provided by
the true owners to him, the present suit for eviction has been filed. Hence, the said witness was
not produced for cross-examination so as to save him from saying the truth. As a matter of
fact, the purpose of quoting the Preamble, aims, object and nature of the Act hereinabove was
only in order to visualise the pleadings of the parties on the touchstone and anvil of ground of
eviction which plaintiff has taken and whether in the facts and circumstances of the case, can a
decree of eviction be passed or not.
25. According to me, the principles laid down in the decision of Supreme Court in Sheela
(supra) and that of decision of this Court in Nirvikar Gupta (supra), are squarely applicable in
the present case. In the decision of Sheela (supra), although defendant pleaded inter alia, that
the plaintiffs were not the owner of the suit premises and therefore, tenant was not liable to be
evicted but in that very written statement at other places the defendant admitted the plaintiffs
to be his landlords. The purpose of quoting the relevant portion of Para 1 of the written
26. On going through the pleadings of the defendant this Court finds that defendant has never
renounced his character as tenant and in a clear and unequivocal term nowhere he has setup
title of the suit premises in him or in a third party and he is bonafidely calling upon the plaintiff
to prove his ownership or putting landlord to prove his title so as to protect himself (defendant)
or to earn a protection made available to him under the Act, but without disowning his
character of possession over the tenanted premises as tenant. In these facts and
circumstances, according to me, it cannot be said that his act was anyway injurious to
landlord/plaintiff and he had not done any act which may likely to affect adversely and
substantially to the interest of the plaintiff. Hence, according to me, a decree of eviction under
Section 12 (1) (c) of the Act cannot be passed.
27. The substantial question of law No. 1 is thus answered that the Courts below have erred in
law in passing the judgment under Section 12 (1) (c) of the Act.
28. At the cost of repetition, I may again state here that initially the suit for eviction was filed
by plaintiff for bonafide need of himself and for his two major sons to start the business of
Seeds and Fertilisers in the suit premises. After the written statement was filed, the plaintiff
amended his plaint and pleaded in Para 1 (a) that because the then owner of the suit property
Mahadev Prasad Agrawal was pleased on account of services of offering Puja etc., by the
plaintiff, he gave the suit property to the plaintiff, which was in consideration of the Puja etc.
Further it has been pleaded by the plaintiff that said Mahadev Prasad also declared him to be
the owner of the property and delivered its possession. According to me, for no scintilla of
imagination it can be said that any title of the suit property whose value is admittedly more
than ` 100/- was conveyed in the plaintiff because no registered document and a valid
conveyance deed has been executed in favour of plaintiff. True, as rightly contended by learned
Counsel for respondent that inquiry in respect to ownership in eviction suit under the Rent
Control Legislation is not that much wider as that of title suit. But according to me, it is equally
true that it is having some wider connotation (though in narrow sense) than that of other
grounds of eviction envisaged under Section 12(1) of the Act and the plaintiff is legally bound to
prove his ownership in narrow sense so as to bring his case within the ambit and scope of word
"owner" used in Section 12(1) of the Act.
29. The word "owner" has not been defined in the Act although words "landlord" and "tenant"
are defined in Section 2 (b) and (i) respectively. In order to obtain a decree of eviction on the
ground of bonafide requirement envisaged in clause (f) of the Act, according to me, the plaintiff
is required to prove not only that he is a landlord but at the same time he has to prove that he
is also the owner of the premises for the simple reason that the word "owner" has been
deliberately used by Legislature under clause (f) of the Act. As already held hereinabove by me
that Legislature will never use any surplusage word while enacting a particular provision of the
statute and therefore, according to me if bonafidely the tenant is disputing the ownership of the
plaintiff then upto certain extent within the ambit and scope of narrow sense, the plaintiff is
required to prove his ownership. True, a person who is receiving or is entitled to receive the
rent of any accommodation would come within the ambit of definition of "landlord" but merely
he is receiving or is having right to receive the rent, cannot be said that he would be the owner
of the said accommodation unless and until he proves it. The plaintiff has already admitted in
the first line of cross-examination that his name was never recorded as owner in the record of
Municipal Corporation for long period from the year 1978 to 1996 and further admitted that suit
property has been recorded in the name of Dhanya Kumar, Krishna Kumar, Rajkumar and
Kishore. The defendant Dayaldas (D.W. 1) has specifically stated in Paras 1 and 7 of his
30. By keeping these situations in mind as well as the proposition of provisions of Section 116
of the Evidence Act, the Supreme Court in the decision of Sheela (supra), has thrown sufficient
light in Para 10 of the said decision. Further on bare perusal of Para 7 of the said decision, the
Supreme Court by clarifying that although the ground under Section 12 (1) (f) of the Act was
not the point in hand in the Supreme Court, but, in order to interpret clause (c) of the Act
effectively the Apex Court in Para 10 has laid down the law in regard to bonafide need also. On
the aforesaid backdrop, the decision of Supreme Court in Anar Devi (supra), and the decision of
this Court in Devraj (supra), relied by learned Counsel for respondent are not applicable.
31. Apart from what I have held hereinabove, had the suit been filed by the plaintiff/respondent
under the second category of Section 12 (1) (f) of the Act (i.e., the non-residential
accommodation is bonafide needed by landlord for any person for whose benefit the
accommodation is held), matter would have been altogether different. But the present case has
not been filed by the plaintiff by pleading that for the benefit of Dhanya Kumar, Rajkumar,
Krishna Kumar and Dharamdas the accommodation was held by him and they are in need of
the suit accommodation and for that plaintiff or those persons do not have any reasonably
suitable vacant accommodation of their own in the city or town. Hence, I am of the view that a
decree of eviction under Section 12 (1) (f) also cannot be passed.
32. Substantial question of law No. 2 is thus answered that because plaintiff is not found to be
the owner of the suit property, it cannot be said that suit accommodation is needed by him
bona fide for his own requirement and for his sons and Courts below have erred in passing the
decree of eviction under Section 12 (1) (f) of the Act. Resultantly, this appeal succeeds and is
hereby allowed. The impugned judgment and decree passed by learned two Courts below are
hereby set aside and the suit of the plaintiff is hereby dismissed with no order as to costs.