First Appeal No. 664/2006. Case: Hameeda Begum Vs Inder Kumar Jain. High Court of Madhya Pradesh (India)
| Case Number | First Appeal No. 664/2006 |
| Counsel | For Appellant: Hafizullah Khan, Advocate and For Respondents: Pranay Verma, Advocate |
| Judges | Rajendra Menon, Actg. C.J. and Anurag Shrivastava, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order II Rule 2; Limitation Act, 1963 - Section 27; Madhya Pradesh Accommodation Control Act 1961 - Sections 12(1), 12(1)(f); Partition Act, 1893 - Section 4; Transfer of Property Act, 1882 - Section 44 |
| Judgement Date | February 01, 2017 |
| Court | High Court of Madhya Pradesh (India) |
Judgment:
Anurag Shrivastava, J.
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This appeal has been filed by the appellant/plaintiff against the judgment and decree dated 14.07.2003 passed by XV Additional District Judge, in Civil Suit No. 94-A/2002, whereby the trial Court has dismissed the suit on the ground of maintainability of suit and res-judicata.
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The appellant/plaintiff has filed the suit against the respondent/defendant alleging that the suit house bearing Nos. 667, 667/1 to 667/3 situated at Kotwali ward, Jabalpur known as "Kudrat Manzil" is ancestral property of Barkatulla and Sheikh Shamsuddin. At present, Barkatulla and Sheikh Shamsuddin are dead. Barkatulla legal heirs wife Smt. Rafiquan Bi, sons Hafizullah (plaintiff), Inayatullah, Habibullah and daughter Smt. Sona Bi had inherited the interest of Late Barkatulla in the property. Similarly, the other co-owners were also legal heirs of Shamsuddin as his wife Smt. Amina Bi, son Jalaluddin and daughter Hamida Bi. Smt. Begum Bi is wife of Jalaluddin. It is not disputed that Barkatulla, Amina Bi, Jalaluddin and Hamida Bi had granted the lease of building "Kudrat Manzil" to Sheikhar Chand Jain by registered lease deed dated 01.05.1968 for ten years. During life time of original tenant Sheikhar Chand Jain, his son defendant Inder Kumar Jain had purchased a portion of suit house from co-owners Hamida Bi and Sona Bi by registered sale deed dated02.02.1982 and 20.09.1982 respectively. Plaintiff Hafizulla being a joint owner of suit house filed a Civil Suit No. 31-A/1997 before XI ADJ, Jabalpur and another Civil Suit No. 17-A/1997 before District Judge, Jabalpur against the defendants for declaration that the sale deeds dated 02.02.1982 and 20.09.1982 as in effective on the ground that the defendant being a stranger purchaser who has not brought the suit for partition of the house, therefore, his right on the suit house have been extinguished by passage of time under Article 65 of Limitation of Act. In above civil suits, the defendant has filed the written statement, wherein inter alia pleaded that after purchased of the share of Hamida Bi and Sona Bi, the defendant has become the co-owner of the property, therefore, he cannot be evicted.
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It is further pleaded that the plaintiff has instituted a Civil Suit No. 147-A/1988 against the original tenant Sheikhar Chand Jain for eviction on various grounds under Section 12(1) of M.P. Accommodation Control Act. During the pendency of the Civil Suit No. 147-A/1988 the defendant Sheikhar Chand Jain had died. His wife Smt. Champa Bai and his son Puran Chand Jain and Inder Kumar Jain were brought on record as legal heirs. In the above suit the IX Civil Judge Class-II vide judgment dated 30.07.1991 had found bonafide need of the plaintiff Hafizulla established for his profession of Advocate under Section 12(i)(f) of the Act, but dismissed the suit on the ground that the suit for eviction at the instance of two co-landlords was not maintainable. Aggrieved by the judgment and decree the appellants have filed First Civil Appeal before XII ADJ, registered as Civil Appeal No. 61-A/1995, which was dismissed on 28.11.1995. Thereafter, the Second Appeal No. 813/1995 was filed by plaintiff, in which the high court had also upheld the bonafide need of the appellants but dismissed the appeal on the ground that the defendant Inder Kumar Jain had purchased the undivided share of Smt. Sona Bi and Smt. Begum Bi by sale deeds dated 02.02.1982 and 20.09.1982 and have become the co-owner of the property. His share qua sole owner has not been specified. Therefore, he cannot be evicted at the instance of other co-owners without partition of property.
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It is further pleaded by the plaintiff that earlier suit No. 147-A/1998 relates to the dispute between landlord and tenant no question of title was raised in it, whereas, in the present suit which is for possession and mesne profit, the question of title of plaintiff involves. Therefore, the findings in the earlier suit and Second Appeal No. 813/1995 shall not operate as res judicata, in the present suit. It is further pleaded that the possession of defendant in suit house is as tress-passer, who has no right to claim joint possession with other co-owners, therefore, he is liable to be evicted. The defendant is unauthorizedly in possession of suit house, the market value of house is at present not less than Twenty Five lacs and rental value is not less than Fifteen Thousand per month. Therefore, plaintiff prayed for decree of vacant possession of the suit house alongwith mesne profit @ Rs. 500/- per day from the date of decree till vacant possession handed over by defendant to plaintiff.
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In the written statement filed by the defendants, it is denied that the suit house is a dwelling house. It is pleaded that the suit house belongs to Barkatulla and his brother Shamsuddin. Later on house was partitioned in 1951, in which the half north part of the suit house came in share of Barkatullah and remaining south part was allocated to Shamsuddin. After the death of Shamsuddin, his son Jalaluddin inherited his share in suit house and later on, he had gifted his share to his wife Begam Bi by executing Tamleefnama dated 17.04.1974 with the consent of Barkatullah. Thus, Begam Bi was the owner of half south portion of the house and she was receiving the rent @ Rs. 75/- per month from Sheikhar Chand Jain for his part of house.
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It is averred by the defendant that Barkatulla, Amina Bi, Jalaluddin and Hamida Bi had let out the suit house to Sheikhar Chand Jain. A Civil Suit No. 147-A/1988 has been instituted against the original tenant Sheikhar Chand Jain for eviction on various grounds under Section 12(1) of M.P. Accommodation Control Act. During pendency of the suit, original tenant Sheikhar Chand Jain died and his LRs were brought on record as successor tenants. One of LRs of Sheikhar Chand Jain, his son Inder Kumar Jain had purchased the share of Smt. Begam Bi vide order sale deed dated 03.02.1982 and share of Smt. Sona Bi vide sale deed dated 20.09.1982 in suit house. It is claimed that by virtue of these sale deeds, Inder Kumar Jain became the co-owner of the suit house and retains possession in the suit house as co-owner.
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The defendant has admitted that the Civil Suit No. 147-A/1988 was dismissed by the trial Court on 30.07.1991, thereafter, first appeal No. 61-A/1995 and Second Appeal No. 813/1995 filed by the plaintiffs also dismissed. Against this plaintiffs filed SLP before Apex Court which was dismissed in limine...
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