Sunita Yadav, J
1. This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellant/plaintiff against the impugned judgment and decree dated 13/10/2009 passed by Court of XIII Additional District Judge, Gwalior in Civil Appeal No. 13-A/2009 arising out of Judgment and decree dated 30/04/2007 passed by 5t h Civil Judge, Class – 1, District Gwalior in Civil Suit No. 26-A/2007.
2. The necessary facts for disposal of the present appeal, in short, are that appellant (hereinafter referred to as the plaintiff ) filed a suit for eviction u/s 12(1)(a)(c) & (f) of M.P. Accommodation Control Act, 1961 (for brevity, “Act”) and arrears of rent against the respondents (hereinafter referred to as the defendants) narrating therein that the plaintiff owns a house situated at Hanuman Chouraha, Lashkar, Gwalior bearing Municipal House No. 45/26. The said house has been owned by the plaintiff by virtue of a Will dated 12.05.99 executed by her father-in-law, Shri Ramjidas Sharma. Tenanted shop is situated at ground floor of aforesaid house wherein, father of defendants, Late Shri Kishanlal has been inducted as tenant on 09.11.53 by father-in-law of plaintiff. After demise of Late Shri Kishanlal, defendants have become tenant in the shop at the rate of Rs. 300/- per month. The defendants have paid the rent promptly till December, 1999, thereafter, they have been constant defaulter even after repeated request since January, 2000. So, the arrears of rent for 22 months i.e till the date of filing a suit (October, 2001) is Rs. 6,600/-.
3. It has further been pleaded in the plaint that the husband of plaintiff has already been running a shop of sweets, namkeen, gajak etc. adjoining to eastern side of tenanted premises and the same shop has been given to the minor sons of plaintiff through a Will dated 12.05.99. Husband of plaintiff alongwith his father since his lifetime has been running the business of sweets, namkeen, gajak etc. Plaintiff is also willing to start the same above mentioned business of sweets, namkeen, gajak etc. with the aid of her husband, and, for this very business, plaintiff requires the tenanted shop bonafide as she is not available with any non-residential accommodation within the municipal limits. Plaintiff has further pleaded about the convenience, suitability and feasibility of the tenanted shop for her business in paragraph 6 of plaint. Plaintiff has also pleaded about non-suitability of an another available accommodation owned by her husband in context of its' present usage.
4. It has further been pleaded by the plaintiff that the denial of her title by defendants makes out a case under Section 12(1)(c) of M.P. Accommodation Control Act, 1961.
Therefore, plaintiff sent a registered notice dated 29.08.2001 to defendants demanding arrears of rent and requested to evict the tenanted shop. Same has been received by defendants, but of no avail. Hence, plaintiff filed the present suit.
5. The defendant No. 1 has submitted his written statement and denied the relation of landlord and tenant between him and plaintiff in respect to tenanted shop. It is averred that the Will dated 12.05.99 itself mentions about prior ownership of Sualal who died in January 1984. Ramjidas was not the son of Sualal, but, he was the son of Madhavlal. So, Ramjidas was merely a rent collector on the instructions of Sualal. Moreover, Ramjidas did not have any right to execute the Will dated 12.05.1999 as heirs of Sualal were also alive at the time of his death. Sualal did not execute any Will, if produced, then it would be a forged one.
6. It has further been pleaded by the defendants that they have already paid the rent to husband of plaintiff upto 30.11.2001. It is also averred that many times rent has been enhanced under the threat of eviction. However, husband of plaintiff never issued the rent receipts. Since, rent is already paid upto 30.11.2001, so, any arrears from January 2000 onwards are denied.
7. It has further been pleaded that the requirement of plaintiff is malafide simply for the purpose of eviction. Otherwise also, plaintiff is a house wife and, she is not interested in starting the business with the help of her husband. Plaintiff also lacks experience. Plaintiff and her husband are also having alternative accommodation. Defendants have also denied the amended plea of plaintiff with regard to non-availability of any alternative accommodation in toto. Defendants have further denied the plaintiff averment in respect of convenience, suitability and feasibility of tenanted shop for starting the business.
8. It has further been pleaded by the defendants that they have challenged the derivative title of plaintiff which would not entitle plaintiff for eviction decree under Section 12(1)(c) of M.P. Accommodation Control Act, 1961.
9. The defendants have also taken the special pleas that if plaintiff proves her ownership then defendants agree to hold her their landlord. Defendants are depositing the rent in the Court reserving their rights under Section 13(2) & 13(3) of M.P. Accommodation Control Act, 1961. Hence, defendants have prayed for dismissal of suit.
10. The defendant No. 2 has remained ex-parte through out the matter and therefore, he has been proceeded ex-parte.
11. After hearing the parties, the learned trial court has dismissed the suit in toto vide judgment and decree dated 30.04.2007. Thereafter, plaintiff preferred the First Appeal wherein learned first appellate court has remanded the matter for re-adjudication of all the issues. Defendant no. 1 preferred an appeal against remand order before this Court wherein findings of learned first appellate Court were set aside and case was remanded to learned first appellate Court for re-adjudication. Thereafter, an application under Section 24 of C.P.C. was moved by defendant which has been decided by the High Court. Learned first appellate Court dismissed the suit vide impugned judgment & decree. Hence, this second appeal.
12. Learned counsel for the appellant/plaintiff submits that the judgment & decree dated 13.10.2009 is contrary to law. The learned Courts below have though discussed the extent of degree of proving the ownership in requirement based eviction suit, but have still failed to understand it conceptually. That is to say, in view of specific pleading of plaintiff with regard to acquisition of title by virtue of Will dated 12.05.1999 from Ramjidas, then, learned Courts below ought not to have required the plaintiff to prove the title of Ramjidas as the present suit is an eviction suit and not a title suit.
13. It has further been submitted that the learned Courts below have overlooked the admission of defendant No.1 in respect to ownership of Ramjidas and Rent Note Ex.P-5 and so, erred in pronouncing the impugned judgment & decree.
14. It has further been submitted that the defendants have denied the title of Ramjidas also, however, learned Courts below ought to have held them estopped under Section 116 of Evidence Act.
15. It has further been submitted that the learned Courts below have committed an error by letting the defendants to challenge the Will dated 12.05.1999 executed in favour of plaintiff.
16. It has further been submitted that the learned Courts below have, otherwise also, wrongly applied the principle of attornment and thus, erred in passing the impugned judgment & decree. It is a trite law that attornment of tenancy is desirable but not a necessity.
17. It has further been submitted that both the learned court below has lost its sight over the provisions of Section 63, Indian Succession Act, 1925 and Section 68, Indian Evidence Act, 1872. Undisputedly, plaintiff has successfully proven the Will dated 12.05.1999 in accordance to the aforesaid provisions,
18. It has further been submitted that the learned Court below has also erred in holding that the attesting witness PW-2 has been an interesting witness being a relative, and therefore, his testimony would not suffice.
19. It has further been submitted that the learned appellate Court has also committed an error by comparing the signatures of Ramjidas on its own.
20. It has further been submitted that the learned appellate Court did not bother to adjudicate the bonafide need of plaintiff.
21. It has further been submitted that the learned appellate Court has also mislead itself while adjudicating the ground of eviction under Section 12(1)(c) of M.P. Accommodation Control Act, 1961. It is crystal clear that defendants have not only challenged the title of plaintiff, but also alleged the Will dated 12.05.1999 to be forged and executed by Ramjidas who was not competent to execute the same. So, explicitly, defendants have challenged the admitted title of Ramjidas which entities the plaintiff for a decree of eviction U/s 12(1)(c).
22. It has further been submitted that the learned trial Court has otherwise also erred in considering the impact of Section 109 of Transfer of Property Act, 1882, whereby, it is provided that in case of a valid transfer, transferee shall possess all the rights.
23. On the other hand, learned counsel for the respondent/defendant supported the impugned judgment and decree passed by the court below and prayed for dismissal of the instant appeal being bereft of merit and substance.
24. Heard parties on I.A. No. 1496/2019, an application under section XLI Rule 27 of CPC filed by the appellant.
25. By filing this application, the appellant prays to admit the judgment of probate court passed in case No. 08/2015 in respect to the Will allegedly executed by Ramjidas on 12/05/1999.
26. The respondent has filed its reply vide document No. 3452/2023 and vehemently opposed the application and argued that relationship of the landlord between appellant and the respondent has not been found established by both the courts below and, therefore, the suit was dismissed. It is further argued that the ground of Will was raised before learned trial court as well as learned first appellate court, but that ground has been rejected. Now, after obtaining the probate on the basis of the same Will, in which, the respondents were not made party, the appellant is trying to fulfill the lacunae which cannot be allowed. It is further argued that no ground is available to the appellant under Order XLI Rule 27 of CPC for taking additional evidence on record, therefore, the application be dismissed.
27. Order 41 Rule 27, of the Civil Procedure Code of 1908 specifies the conditions under which the court may permit parties to the appeal to present evidence at the appellate stage.
These conditions are:
1. If the trial court that rendered the decree refused to accept evidence that should have been accepted, or;
2. If the appellant is successful in proving that the evidence in question was not known to him, or;
3. If the party appealing is able to prove that, despite his best efforts, he was unable to produce the evidence when the trial court issued the decree being appealed;
4. If an appellate court requires a document be produced or a witness be questioned in order to reach a decision, or;
5. If the appellate court requests the production of any documents or the cross-examination of any witnesses for any other substantial cause.
28. The perusal of the record indicates that the appellant /plaintiff claimed her ownership over the disputed shop on the basis of Will allegedly executed by Ramjidas, however, learned trial court as well as learned first appellate court have disbelieved execution of said Will on various grounds. Once execution of the Will was disbelieved by two competent courts, the petition for probate has been filed during pendency of appeal. The appellant has failed to show any ground why the petition for getting probate was not filed during the trial. The appellant has also failed to show that the trial court that rendered the decree refused to accept aforesaid evidence that should have been accepted or the evidence in question was not known to him or despite his best efforts, he was unable to produce the evidence when the trial court issued the decree being appealed. The counsel for appellant vehemently argued that the probate which is judgement in rem, must be accepted as an additional evidence. However, above argument is not acceptable in the light of the fact that this evidence was created just to fulfill the lacuna after dismissal of suit by two competent courts because the will was not found to be proved on various grounds. It is a trite law that additional evidence can not be accepted to fulfill the lacuna. the judgment of probate court reflects that nowhere in the entire judgment there is discussion about the findings given by the learned courts below. It was the duty of the appellant herein to inform the probate court that the will has already been scrutinized by two courts and the same has not been found to be genuine.
Moreover, the evidence which is being filed along with the application is a created evidence which never existed either before learned trial court nor before learned lower appellate court. Therefore, such created evidence cannot be admitted in evidence in any manner. Further, this provision does not apply, when on the basis of evidence on record, the appellate court can pronounce a satisfactory judgment. The matter of taking additional evidence on record is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. The appellate court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. 29. In view of above, I.A. No. 1496/2019 is hereby dismissed.
30. Heard learned counsel for the rival parties on merits and perused the material available on record.
31. This second appeal has been admitted on the following substantial questions of law:
“(i) Whether, learned appellate Court has wrongly discarded the Will dated 05.12.99 on the basis of non-examination of second attesting witness even though it was successfully proven by one attesting witness?
(ii) Whether, defendant / tenant can challenge the execution Will dated 05.12.99 by Ramjidas in favour of plaintiff although title of Ramjidas was admitted by tenant?
(iii) Whether, a landlord is required to prove admitted title of his predecessor in requirement based eviction suit?
(iv) Whether, PW-2 an attesting witness to Will dated 05.12.99 could be held as an interesting witness merely due to his relation with Ramjidas specifically in absence of any legal prohibition / bar ?
(v) Whether, learned appellate Court has acted contrary to law by comparing the signatures of Ramjidas on its own motion under Section 73 of Evidence Act, 1872?
(vi) Whether, challenging the admitted title by defendant against the principle of estoppel under Section 116 of Evidence Act, 1872 shall not entitle the plaintiff/landlord for eviction decree under Section 12(1)(c) of M.P. Accommodation Control Act, 1961?
(vii) Whether, learned appellate Court was not under legal obligation to give finding upon bonafide need of plaintiff especially when plaintiff is proven to be owner thereof under Section 12(1)(f) of M.P. Accommodation Control Act, 1961?”
Substantial Question of Law No.-1 and 4
32. The perusal of judgments of learned courts below indicate that the will was disbelieved not only on the ground of non examination of second attesting witness but on the basis of various other reasons. In the case in hand the execution of will has been found to be suspicious on various other grounds and plaintiff has failed to remove the suspicious circumstances surrounding the execution of will. Learned courts below have disbelieved the testimony of PW-2 and such finding is based on appreciation of evidence and as per settled law finding recorded on the basis of appreciation of evidence even if perverse cannot be set aside in second appeal as the same are pure finding of fact. Disbelieving a particular witness is a pure finding of fact which is not open for interference in an appeal filed under Section 100 of CPC. Therefore, these substantial questions of law which are wrongly framed as they are question of facts, are answered against the appellant.
Substantial Question of Law No.2 and 6
33.The reading of aforesaid substantial questions of law indicates that question no.2 framed by this court is totally contradictory with question no.6. As per question no.2 the tenant has admitted the title of Ramjidas and therefore once having admitted the title, no challenge can be made to the will executed by Ramjidas. However, question no.6 is framed in such a manner with shows that the defendant is not accepting the title of Ramjidas and therefore the tenant should be evicted. Findings on both the questions are being given as below.
SQL No.-2
34. In this case the plaintiff claimed herself as the owner of the suit house on the basis of alleged execution of will by late Ramjidas. However, as discussed above, the plaintiff has failed to prove execution of will.
35. So far as question of attornment is concerned, the plaintiff has filed rent receipt Ex. P/5 as documentary evidence to prove the payment of rent by defendant-tenant from 01/10/1999 to 31/12/1999. However, this receipt does not have the signature of landlord or the person who had received the rent. Ex. P/5 indicates that respondent /defendant has signed on the back side of the receipt on 30/03/1999, therefore, this receipt does not prove that after execution of the alleged Will, the plaintiff has received the rent from the respondent/defendant.
36. The plaintiff (PW/1) in her statement stated that no notice was given to the respondent/defendant before the date of Ex. P/5 indicating that she had become the owner of the disputed shop on the basis of Will (Ex. P/1). The plaintiff at para 18 has also stated that she had never demanded rent from the defendant. The plaintiff has failed to file any receipt which was issued by her. In her statement at para 18, she has stated that she has never demanded rent from defendant. Even after perusal of Ex. P/5, it reveals that name of Kishanlal is written as tenant on it. The record further reveals that the plaintiff has admitted at para 37 of her statement that after the death of her father-in-law Ramjidas, and before giving rent receipt Ex.P-5 to defendant, she never sent any notice to the defendants indicating that her father-in-law had died after executing any Will in her favour.
37. The plaintiff (PW/1) at para 31 has also stated that after the death of father-in-law her husband had received rent from the defendants and she has never signed any receipt. The statement of plaintiff (PW/1) further reveals that before the death of Ramjdas he was getting the rent and after his death Madan Mohan Sharma was receiving the rent from the defendants. She has also admitted that though the rent receipt Ex.P-5 was given in her presence but she has not signed the receipt.
38. There is no pleadings in the plaint that Madan Mohan Sharma was receiving the rent on behalf of his wife/ plaintiff. There is nothing on record to show that Madan Mohan Sharma has ever informed to the defendants that he was receiving the rent on behalf of his wife/plaintiff. PW/3 – Madan Mohan Sharma in his cross examination at para 17 stated that after the death of his father, he received rent from the defendant- Vishnu. He has admitted that he has never given any receipt to the defendants with the signature of his wife in the capacity of the landlord. This witness PW-3 has further admitted that after the death of his father Ramjidas, he has not sent any notice to the defendants indicating that plaintiff on the basis of Will has become the owner of the disputed shop. In view of the aforesaid evidence, learned Courts below have not erred in holding that the plaintiff has failed to prove that after the death of Ramjidas there was attornment of tenancy in favour of plaintiff by defendant.
39. As discussed above, there had never been any attornment of the tenancy by the tenant-defendant in favour of plaintiff. Neither the plaintiff has received the rent, not any receipt signed by plaintiff as landlord has been given to tenant. Therefore, the plaintiff is totally a third party for tenant. As per plaintiff only after the death of Ramjidas which took place on 07.08.1999, it was husband of plaintiff namely Madan Mohan Sharma who was receiving the rent and therefore Madan Mohan Sharma would be landlord for the tenant as per Section 2 (b) of Act of 1961. Once Madan Mohan Sharma became landlord, then if a suit is filed by person who is neither natural successor of Ramjidas nor a landlord, then in that circumstance, the tenant can challenge the will allegedly executed by Ramjidas in favour of plaintiff. Since the plaintiff has based her claim on the basis of will and the suit has been filed under Section 12 (1) (f) of the Act of 1961 also, therefore, the plaintiff is required to prove her ownership and not just land lordship. Therefore, the tenant has every right to challenge the derivative title of the person filing the suit. In these circumstance, the defendant/tenant is having right to challenge the will filed by plaintiff because the will which has been filed by plaintiff is required to be proved by her in order to fall under the definition of owner as per Section 12 (1) (f) of the Act of 1961.
40. Hon’ble Apex Court in Sheela and others versus firm Prahlad Rai 2002 (2) JLJ 312 (SC) (para 11 to 18)— arising out of State of Madhya Pradesh considered the entire law on the question of granting decree on the ground of disclaimer of title when the tenant challenges the derivative title. Apex Court held that a tenant calling upon landlord to prove his ownership or putting the landlord to prove his title so as to protect his tenancy without this owing his character of possession of tenant cannot be said to be disclaimer of title. In the case at hand also, the present respondent never disclaimed himself to be tenant and has always admitted his tenancy and has only asked the plaintiff to prove his derivative title in order to protect his tenancy and therefore no ground under Section 12 (1) (c) of the Act is made out.
41. In the case of Chandramohan Versus Sengottaiyan (Dead) by LR’s and others (2000) 1 SCC 451 (para 16 to 18)- the Hon’ble Apex Court held that the tenant is having right to challenged the derivative title of landlord if the suit is filed by the person who is not the natural successor of the original owner. On challenging the derivative title it cannot be held that there has been disclaimer of title and no decree for disclaimer of title can be passed on such challenged.
42. In the case of Bajranglal Verms Vs. Smt. Gyaso Bai and others 2005 (1) JLJ 173 para 10 to 15 — this Court held that if a suit is filed by a person who is not the successor of original owner and is claiming derivative title then the tenant is having right to challenge the derivative title of the plaintiff. Further, once the plaintiff do not renounces his status as tenant, no decree under Section 12 (1) (c) can be granted.
43. In the case of Manisha Lalwani Versus Dr. D.V. Paul 2007 (2) MPLJ 52 para 31 & 32 — this Court held that when in the written statement the tenant admitted his tenancy and a suit is filed by a person on the basis of will, then the tenant is entitled to raise the question that the will is suspicious and the plaintiff is required to prove the will. In case such objection is taken, the same would not amount to denial of title and consequently no decree under Section 12 (1) (c) can be passed.
44. Thus, learned courts below have not erred in considering the genuineness of Will as tenant can always challenge derivative title of the plaintiff.
45. Further, question of law no.-2 framed by this court refers to a contingency that since title of Ramjidas is not denied therefore the will executed by Ramjidas cannot be denied. However, in view of the facts of this case, such question has no relevance and is meritless, because, even if the title of Ramjidas is admitted,the natural successor of Ramjidas would have filed suit then in view of the admission of title of Ramjidas the tenant could not have challenged the title of successor of Ramjidas. However, in this case the plaintiff is not the successor of Ramjidas but is claiming title from Ramjidas on the strength of will. Therefore, the defendant is having every right to challenge the derivative title of the plaintiff by challenging the will.
SQL No.-6
46. This question of law revolves around the position when the title of the plaintiff once admitted, then the same cannot be challenged and if challenged the same would be contrary to Section 116 of Indian Evidence Act giving rise to disclaimer of title as a ground envisaged under Section 12 (1) (c) of the Act of 1961. However, this question of law is also not framed as per the facts of this case. In the case at hand the defendant never admitted the title of plaintiff, therefore there would be no estoppel operating against the defendant. At no point of time the defendant admitted either title or landlord ship of plaintiff and once there was no admission of title, then no estoppel under Section 116 of Evidence Act would be applicable. Therefore the cases of Mangat Ram and Another vs. Sardar Meharban Singh and Ors. reported in (1987) 4 SCC 319, Bismillah Be (dead) by legal representatives vs. Majeed Shah reported in (2017) 2 SCC 274, Bhogadi Kannababu and Ors. vs. Vuggina Pydamma and Ors. reported in (2006) 5 SCC 532, Tej Bhan Madan vs. II Additional District Judge and Ors. reported in (1988) 3 SCC 137 cited by the appellant do not give any benefit to her case.
47. Learned counsel for the appellant cited the case law of Zehra Bai vs. Jagmohan Arora reported in MPWN 2000 (2) 142 in support of his contentions. However, in the facts and circumstances of that case, his title is different from this case. In the case of Zehra Bai (supra) tenant was paying rent to the landlord, therefore, it is held that he cannot object land lordship and ownership of the landlord and landlord need not produce his title deed. However, in this case, the plaintiff has failed to prove that she has ever received the rent from the tenant / defendant and relationship of the landlord and the tenant has not been established, therefore, the appellant does not get any benefit from this case.
48. Learned counsel for the appellant has also cited the case of Dashrath Rao Kate vs. Brij Mohan Srivastava reported in (2010) 1 SCC 277. However, the facts and circumstances of this case is totally different from the present case. As per the facts of the case of Dashrath (supra) after inquiry by the Court under Order XXII Rule 5 of CPC, the will was found to be proved and the trial Court decreed eviction against the respondent, thereafter, respondent tenant disputed Will. In aforesaid case, it is held that question regarding Will was gone into in detailed enquiry, proved by cogent evidence and appellant's status was finally decided in the Order XXII Rule 5 proceedings, therefore, it was held that it can not be challenged. However, in this case, the suit of the landlord appellant was dismissed not only by the learned trial Court but also by the learned first appellate Court. Therefore, the facts being different, this case also does not give any benefit to the appellant.
49. Under Section 12 (1) (c) of Act of 1961 ground of disclaimer of title is only made out on fulfilling three condition firstly the defendant challenges the title of plaintiff after attornment of tenancy in favour of plaintiff, secondly when the tenant renounces his character as tenant and thirdly when the tenant sets up title of the property in third person. In the case at hand none of these conditions are fulfilled as there was no attornment of tenancy between plaintiff and defendant, secondly as specifically pleaded by the defendant that he is admitting himself to be the tenant of the property and he did not renounced his character as tenant, thirdly the tenant did not pleaded any third person to be owner of the property, rather plaintiff admits after Ramjidas it is PW-3 Madan Mohan who was landlord to whom defendant was paying the rent who is entitled to succeed the property. Therefore, none of the essentials of Section 12 (1) (c) of the Act of 1961 are made out Under above circumstance the case of Mahendra Raghunathdas Gupta vs. Vishvanath Bhikaji Mogul and Ors. reported in (1997) 5 SCC 329, Subhash Chandra vs. Mohammad Sharif and Ors do not help the case of appellant.
50.Consequently the substantial questions of law no.-2 and 6 are answered against the appellant.
Substantial Question of Law No.3
51. This suit is filed under provision of Section 12(1)(f) of M.P. Accommodation Control Act. For ready reference and convenience Section 12(1) (f) of the Act is reproduced herein below :-
“12. Restriction on eviction of tenants.
(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely :
(a) to (e) xxxxxxxxxxxxxxxxxxxxxxxxxxx
(f) that the accommodation let for non-residential purposes is required bonafide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably non-residential accommodation of his own in his occupation in the city or town concerned] ”
52. The plain reading of the aforesaid provision of section 12(1) (f) of the Act indicates that even the landlord is required to prove his title for seeking decree of eviction. The perusal of impugned judgements reveal that learned courts below while dealing with the question of ownership have kept in mind the settled principle of law that in eviction case the title is not required to be proved as strictly as if they are title suit (para 17 of the judgment of the trial court). In the case of Dayal Das (dead) through LRs Vs. Rajendra Prasad Gautam 2012 (4) MPLJ 153 ( para 20 to 33 ) this Court held that if the tenant has not setup title of the property in third person and when the tenant has not disowned his character as tenant and has only challenged the derivative title, no ground under Section 12 (1) (c) of the Act would be made out. Further, the court held that for getting decree of eviction under Section 12 (1) (f), only owner can file a suit and no other person. In the present civil suit which has been filed by the plaintiff for bonafide need under section 12 (1)(f) of the Act, the plaintiff has to prove that she is the owner of the disputed shop.
53. In this case, suit is filed not by the actual successor but by a person who is deriving title on the basis of will and as discussed above, the will has not been proved in accordance with law. In this case the plaintiff was never the landlord of defendant, in fact either Ramjidas who has been rent receipt or husband of plaintiff who has received the rent after the death of Ramjidas in presence of plaintiff would be considered to be landlord as per Section 2 (b) of Act of 1961. Therefore, the defendant had every right to challenge the title of the person who is filing the suit since she was neither natural successor of the owner, nor she was landlord. Thus the case of Learned counsel for the appellant has cited the case of Kanaklata Das and Ors. vs. Naba Kumar Das and Ors. reported in (2018) 2 SCC 352 does not support the case of the plaintiff.
54. Consequently, the SQL No.-3 is answered against the appellant.
SUBSTANTIAL QUESTION OF LAW NO.5:—
55. In this case the plaintiff in order to file the suit has placed on record will Ex.P-1 allegedly executed by Ramjidas and further the plaintiff herself has placed on record other documents in which signature of Ramjidas are present. The learned courts below after due appreciation and comparision found that there is a total mismatch in the signature of Ramjidas on all the documents. It is settled in law that court is an expert of expert and further the report given by the expert are not binding on court. Therefore, learned trial court exercised its discretion to match the signature of Ramjilal which cannot be challenged at the second appellate stage. It is settled in law that the propounder has to remove all the suspicious circumstance. The defendant since inception, cross examined the plaintiff on the point of mismatch of signature, it was plaintiffs duty to prove the signature of Ramjidas on will Ex.P-1. Admittedly the plaintiff has not led any evidence to prove such signature on the contrary, the plaintiff filed various document which made the signature of Ramjidas suspicious. Therefore, learned court below did not committed any illegality in comparing the signature of Ramjidas on will and other admitted signature of Ramjidas on the rent receipt. It was the plaintiff who wants the Court to rely on the fact that on will Ex.P-1 signature of Ramjidas is present. Therefore, in view of Section 101, 102 of Indian Evidence Act the plaintiff should have sought expert report and once the plaintiff has failed to do so the learned court below has not committed any illegality in matching the signature on its own. Therefore, the substantial question of law is answered in negative.
SUBSTANTIAL QUESTION OF LAW NO.7:—
56. A bare reading of this question of law clearly reflect that the same has been framed under the mistaken belief that plaintiff has held to be owner by the first appellate court and after holding plaintiff to be owner of the property, the court below could not have dismissed the suit of plaintiff under Section 12 (1) (f) of the Act of 1961. Nowhere in the entire judgment of learned trial court or appellate court there is a finding that the plaintiff is owner of the property as per Section 12 (1) (f) of the Act of 1961. Thus this question of law is not framed correctly and is nswered against the appellant.
57. The learned trial court while deciding the issue No. 6 held that the suit is not maintainable on account of non-joinder of necessary parties and that finding has attained finality. Under these circumstances also the appellant is not entitled to get the decree of eviction.
58. In view of the aforesaid discussions, the present second appeal sans merits and is hereby dismissed.
