Case: 1.Harveer Singh and Subalal (Deceased) through his L.Rs., 2.Shri Kishan Singh Tomar Vs 1.Shri Kishan Singh Tomar and Ors., 2.Subalal (Deceased) through his L.Rs. and Ors.. High Court of Madhya Pradesh (India)
| Judges | Abhay M. Naik, J. |
| Issue | Madhya Pradesh Accommodation Control Act, 1961 - Sections 2, 12(1) and 50; Indian Contract Act - Sections 21 and 22; Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11(3); Constitution of India - Article 340; Civil Procedure Code (CPC) - Order 22 - Rule 4(2) |
| Judgement Date | January 15, 2010 |
| Court | High Court of Madhya Pradesh (India) |
Judgment:
Abhay M. Naik, J., (At Jabalpur Gwalior Bench)
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This judgment disposes of Second Appeal Nos. 108/00, 62/00 and 206/00, as they arise from a common suit.
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Subalal, the original plaintiff, instituted a suit for eviction and recovery of arrears of rent on 04.11.1985 against Harveer Singh and Shri Kishan Singh Tomar with allegations that the defendant No. 1 (Harveer Singh) had obtained the suit shop from the plaintiff on rent @ Rs. 400/- per month vide rent note dated 20.02.1980. He sublet it to defendant No. 2 (Shri Kishan Singh Tomar) and parted with possession of the suit shop in favour of defendant No. 2, who is running a shop of motor parts in it. Suit shop is required bonafide for the plaintiff's son, namely, Bahadurlal to start a business of grains.
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Defendant No. 1 submitted his written statement and denied the claim of the plaintiff. He denied to have executed the alleged rent note and equally denied to have obtained the suit shop on rent from the plaintiff. He also denied to have parted with possession of the suit shop in favour of defendant No. 2. Alleged genuine requirement for the plaintiff's son was also denied.
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Defendant No. 2 submitted a separate written statement. He asserted his possession as tenant of the plaintiff on account of having obtained the suit shop on rent @ Rs. 25/- per month under oral tenancy. He stated that defendant No. 1 was never a tenant in the suit shop and defendant No. 2 was not and is not sub-tenant of defendant No. 1. Alleged genuine need for the plaintiff's son was also denied.
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During pendency of the suit, written statement was amended by defendant No. 2 and it was pleaded, in specific, as a special plea that the plaintiff was not owner and occupant of the suit shop on the date of the institution of the suit, therefore, he has no right to seek eviction. In the light of the aforesaid amended version, plaintiff amended the plaint and pleaded that the mutual partition between his sons was accepted by the Municipality, Morena on 01.07.87 and accordingly the suit shop was allotted to the share of Bahadurlal, plaintiff's son, whose need was pleaded in the plaint.
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After the complete trial, learned trial judge vide judgment and decree dated 31.03.98 granted a decree for eviction with a finding that the defendant No. 1 had obtained the suit shop from the plaintiff on rent @ Rs. 400/- per month vide rent note dated 20.02.1980. Suit shop is required bonafide for the business of grain-merchant of Bahadurlal, the plaintiff's son. Defendant No. 2 has not occupied the suit shop as a tenant of the plaintiff and is rather a sub-tenant. Accordingly, a decree under Sections 12(1)(b) and (f) of the M.P. Accommodation Control Act, 1961 (for brevity "the Act") was granted in favour of the plaintiff with the arrears of rent and mesne profits @ Rs. 2000/- per month w.e.f. 01.04.1983.
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Aggrieved by the aforesaid, defendants No. 1 and 2 preferred separate civil appeals bearing numbers 55A/98 and 42A/98, respectively. Leaned lower appellate judge found that the defendant No. 1 has sublet the suit shop to defendant No. 2 and that the suit shop is bonafide required for the business of grain-merchant of Bahadurlal, plaintiff's son. Accordingly, on these two grounds, judgment and decree of the learned trial judge was confirmed. However, the judgment and decree with regard to mesne profits @ Rs. 2000/- per month has been set aside and instead the same @ Rs. 400/- per month is granted.
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Aggrieved by the aforesaid, defendant Nos. 1 and 2 preferred Second Appeal Nos. 108/00 and 62/00, respectively, containing challenge to eviction on ground under Sections 12(1)(b) and (f) of the Act. Simultaneously, plaintiffs/appellants preferred Second Appeal No. 206/00 for grant of future mesne profits @ 2000/- per month.
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Appeals are admitted and heard on the following substantial questions of law:
(i) Second Appeal No. 108/2000:
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Whether in a suit of eviction a decree can be passed to handover the possession to someone else other than the plaintiff?
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Whether the decree of eviction can be passed on the ground of subtenancy only on the ground that the rent-note is proved?
(ii) Second Appeal No. 62/2000:
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Whether the suit filed by the plaintiff/respondent after the disputed shop falling to the share of another member of family was maintainable?
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Whether the maintainability of the suit can be decided on the basis of receipts of rent when the rent was so received in ignorance of family partition and the transaction of payment of rent was governed by Section 50 of the Act?
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Whether the receipt of rent in ignorance of the fact of partition was vitiated by mistake as to the right to receive rent and the transaction was void under Section 21 of the Indian Contract Act and in any case it was voidable under Section 22 of Indian Contract Act which could give no right under Section 2(b) Accommodation Control Act?
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Whether acceptance of rent by the plaintiff from appellant Shri Krishna Singh attracted the principle of waiver and the right of the plaintiff to file the suit for eviction on the ground of subtenancy is waived and no decree could be passed on this ground?
(iii) Second Appeal No. 206/2000:
Whether on the basis of Naval Kishore Mangilal's case finding arrived at by first appellate court regarding mesne profit is without any basis and against evidence led by parties?
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Shri P.K. Patni, learned Counsel for the...
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