The plaintiff has filed the present appeal being aggrieved by the judgment and decree dated 15.5.2000, passed in Civil Suit No.8A/1993, by the Addl.
District Judge, Narsinghgarh Dist. Rajgarh (Biaora) whereby the suit for eviction has been dismissed despite regarding finding under Section 12(1)(a)
of the M.P. Accommodation Control Act, 1961 (hereinafter referred as 'the Act') in favour of the plaintiff.
3. Facts of the case in short as under :-
The plaintiff purchased a house situated at ward No.2 Bada Bazar Narsinghgarh vide registered sale deed dated 4.4.1983 and became the absolute
owner of the said property. There was a shop of Jewellery in the name of Shri Chandmal and Himatram situated in a ground floor of the said house
(hereinafter referred as 'suit shop'). Both of them expired 9 to 10 years back and thereafter, the business of Jewellery had been closed. The defendant
No.1 being a son and defendant no.2 being grandson of Chandmal are in possession of the suit shop illegally. The tenancy with the Chandmal and
Himatram was at the rate of Rs.3 per month. Since the defendants are illegally in possession , therefore, they are not entitled to continue with the
possession. The defendants did not pay the rent since 4.4.1983 and there is an arrears of rent for last 3 years of Rs.108/-, have become wilful
defaulters. Now the plaintiff wants to start the business of manufacturing and sale of Jewellery and he is not having suitable premises in the suit. The
plaintiff served a legal notice to the defendants by terminating the tenancy from 31.7.1985 and demanded the rent of preceding 3 years and requested
them to vacate and handover the suit shop. The defendants declined to accept the notice .In the afore said premises the plaintiff filed the present suit.
Apart from the aforesaid facts, the plaintiff also pleaded in the plaint that he was given the vacant possession of the suit shop on 4.4.1983 and
thereafter, the defendant No.1 has forcefully taken the possession by breaking the lock and, therefore, the defendants are in possession as an
encroachers. the shop is not closed since last 8 years .They have denied the title of the plaintiff. The market rate of the property of the suit shop is
Rs.21,000/- and accordingly, he paid the court fees. The cause of action accrued in favour of the plaintiff on 4.4.1983. By way of final relief the
plaintiff claimed the decree of eviction and arrears of rent of Rs.3600/-.
4. After the notice, the defendants No.1 and 2 jointly filed their written statement by submitting that after purchase, the suit property on 4.4.1983, the
plaintiff served a legal notice to Pradeep Kumar Saxena, showing the seven persons as tenants in the premises. Thereafter, he filed a Civil Suit
No.195, before the Civil Judge Class II, on 15.3.1993. In the said suit, there was no averment about the allegation of breaking up of lock and forcefully
possession of the suit shop. Later on, the plaintiff withdrew the suit, therefore, the present suit is not maintainable under Order 7 Rule 11 of CPC and
prayed for dismissal of the suit. On the basis of pleadings, the trail court has framed the following issues for adjudication :-
1- 04.04.1983 ‘‘ ‘‘
?
2- ?
3- 30.04. 1993 9-10 ?
4- 30.04.1993 8
?
5- 30.04.1993 6
?
6- . 1 ?
7- 04.04.1983 . 1
?
8- . 1 ?
9- 31.07.1986 3 108 ?
10- 08.07.1985
?
◌
11- ?
12- ?
13- 100/- . ?
14- ?
5. The defendants filed an application under Section 151 read with Order 7 Rule 10 of CPC seeking return of the plaint on the basis of improper
valuation . Vide order dt.28.7.1994, the court has rejected the application.
6. Vide order dt.13.12.1999, the learned trial court decided the following two preliminary issues in favour of the plaintiff :-
1- , , , ,
2-
7. By the aforesaid order, the court has held that Manakchand, Motichand, Manoharlal, Laxmichand and Laxmibai are not necessary party in the suit
and the suit is not barred by any law.
8. The trial court has held that after giving the possession of suit shop to the plaintiff 4.4.1983, the defendant No.1 forcefully taken the possession of
the suit shop, therefore, the earlier tenant namely Manakchand, Motichand, Manoharlal, Laxmichand and Laxmibai are not necessary party in this suit.
The defendants raised the objection that the present suit is filed on the basis of allegation of encroachers, therefore, the suit filed under Section 12(1)
(a)(d) & (f) of the Act is not maintainable. The learned trial court has answered the issue No.2 in favour of the plaintiff by holding that the suit is not
barred by any law.
9. Thereafter, the plaintiff examined himself as PW1, Bhawarlal PW2, Ramratan PW3, Gangaram PW4, Awadhkishore Sharma PW5 and got
exhibited 20 documents as Exhibits P/1 to P/20. In rebuttal, the defendants No.2 examined himself as DW1 and Shantilal as DW2.
10. After elaborate discussion of the evidence, the learned ADJ has recorded the finding that the plaintiff is the owner of the suit property and the
defendants are tenant on rent. The issue No.4 has been answered against the plaintiff that the shop is not closed since last 8 years. The issue No.7
has also been recorded against the plaintiff to the fact that on 4.4.1983, the defendant No.1 has again forcefully taken the possession. The issue No.8
has been answered against the defendants that they denied the title of the plaintiff. The issue No.9 has been answered against the defendants that
they did not pay the rent of Rs.108/- for the period of 3 years from 31.7.1986. As per the findings recorded issue No.10, that after the receipt of
notice dt.8.7.1985, the defendants did not pay the rent to the plaintiff. However, the issue of bonafide need has been answered against the plaintiff.
After recording the aforesaid finding in favour of the plaintiff on some issues, vide judgment and decree dt.27.6.2000, the suit has been dismissed on
the ground that the plaintiff had earlier withdrawn the Civil Suit No.308A/1989, on the ground that the defendants become the encroacher, but the
issue No.7 has been answered to the effect that the defendant did not take the forcefully possession on 4.4.1983 and as per the issue No.12, the
tenancy with the legal heirs of Manakchand Jandadi is still in existence and without impleading them as defendants, the decree of eviction cannot be
passed. Para 52 of the judgment and decree is reproduced below :-
. ..
52- 1 . 12(1)
() 308/89
. .
7 12
/
:-
-
-
- ,
11. Being aggrieved by the dismissal of the suit and denial of decree of eviction, the plaintiff has filed the present first appeal before this court.
12. I have heard Shri Himanshu Joshi, Advocate for the appellant and Shri H.Y. Mehta, Advocate for the respondents â€" defendants.
13. Shri Himanshu Joshi, Advocate for the plaintiff â€" appellant submitted argued that the learned trial court has wrongly dismissed the suit on the
ground of withdrawal of the earlier suit by the plaintiff and also on the ground that the legal heirs of Manakchand have not made party in the suit. The
earlier suit was withdrawn on 15.3.1993 with a liberty to file a fresh suit before the competent court. Whether Manakchand, Motichand, Manoharlal,
Laxmichand and Laxmibai, are necessary party or not, the same had alredy been decided by way of preliminary issue. Vide order dt.13.12.1993, it has
been held that the defendants are in possession; therefore, the others are not necessary party. The order dt.15.3.1993, passed in Civil Suit
No.195A/1986, has not been marked as Exhibit, therefore, the court has wrongly placed the reliance on it. Once the trial court has held that the
defendant did not pay the rent despite service of notice , the plaintiff ought to have been granted decree of eviction under Section 12(1)(a) of the Act,
the learned trial court has wrongly dismissed the suit. Hence, the appeal is liable to be allowed.
14. Shri H.Y. Mehta, Advocate appearing for the defendants submitted that the earlier suit was withdrawn on the ground that the defendants no.1 and
2 have become the encroachers, therefore, the second suit based on the ground of landlords and tenant relationship is not maintainable hence no
decree could have been granted under the provisions of the Act. The learned trial court has rightly held that the tenancy is still in continuation,
therefore, the other legal heirs of Manakchand are necessary party.
15. He further submitted that the first suit was withdrawn on the ground that the defendants have become encroacher, but in the second suit the
finding has been recorded that the defendants are not encroachers, but they are tenant in the premises, therefore, the second suit is not maintainable
because in the earlier suit also the decree was sought on the ground of bonafide need and arrears of rent. Hence, technically the second suit is barred
under Order 7 Rule 11 of CPC and the learned trial court has not committed any error of law while dismissing the suit.Hence appeal is liable to be
dismissed.
16. The plaintiff purchased the suit property vide registered sale deed dated.4.4.1983 (Exhibit P/1). Thereafter, he served a legal notice to
Manikchand, Vardhamanmal Motichand, Manoharlal, Laxmichand, Laxmibai and Hemraj (Exhibit P/2) that he purchased the suit property and the said
suit shop is closed since last 2 years, there is an arrears of rent upto 30. 6.1985 (39 months) and now he does not want to continue with that tenancy
and the shop is b0nafide requirement to start his business . He terminated the tenancy w.e.f. mid night of 31.7.1985 to 1.8.1985. The said notice was
served to all the noticee and acknowledgement is filed & marked as Exhibit P/3 and the notices were duly served to all and received by way of
Exhibits P/8 to P/13. Thereafter, he filed a civil suit No.195A/86, seeking eviction against Manikchand, Vardhamanmal Motichand, Manoharlal,
Laxmichand, Laxmibai and Hemraj. In the said suit Vardhamanmal being a defendant No.2 filed a written statement admitting that Chandmal and
Himatram have expired. He has claimed that he is in possession by virtue of ownership and denied the title of the plaintiff. The written statement is
filed and marked as Exhibit P/2. In the said suit the plaintiff filed an application under Order 22 Rule 3 of CPC, seeking withdrawal of the plaint with
liberty to file a fresh on the ground that after purchase of the house by the plaintiff, the defendants have forcefully taken the possession and become
the encroachers and they are also denying the title of the plaintiff, therefore, it has become necessary to file a fresh suit as there is a technical defect,
which cannot be cured by way of amendment. By order dt.15.3.1993, the court permitted him to withdraw the suit with liberty to file before, the
competent court having pecuniary jurisdiction. The said application was opposed by the counsel of the defendants in the said suit and prayed for cost.
The learned court accepted the application only on the condition that if any fresh suit is filed and that would be filed before the court having pecuniary
jurisdiction and granted liberty to file a fresh suit with cost of Rs.50/-. The said order has also not been marked as Exhibit in the present suit, but
certified copy it is available on the record, which was taken into the cognizance by the trial court also.
17. Later on, the plaintiff filed a suit with the pleading that the earlier tenant Chandmal and Himatramji have expired and business of jewellery had
been closed since last 8 years, therefore, their legal heirs were not impleaded as party. At present, the defendant No.1&2 are in possession as they
entered in the suit shop forcefully on 4.4.1983, therefore, they have been impleaded as defendants . The defendants filed a written statement by
submitting that earlier suit was filed against seven defendants namely Manikchand, Vardhamanmal Motichand, Manoharlal, Laxmichand, Laxmibai
and Hemraj in which there was no pleading that they had handed over the possession and the defendant No.1 has forcefully entered into the
possession of the shop. Since plaintiff has withdrawn the suit against those persons in subsequent suit, he has not impleaded them as defendants,
hence there is no cause of action against the defendants to file a second suit. Therefore on these pleadings in WS the trial court framed the
preliminary issues whether Manikchand, Vardhamanmal Motichand, Manoharlal, Laxmichand, Laxmibai and Hemraj are necessary party in the suit.
Vide order dt.13.12.1993, the court has held that as per the pleadings in the plaint, the defendant No.1 is in possession since 4.4.1983, therefore, they
are not necessary party. The learned ADJ has also held that the plaintiff has filed the composite suit on the ground that the defendant is encroacher as
well as the plaintiff is entitled to claim decree under Section 12(1)(a)(d)(f) of the Act, therefore, the suit for eviction is maintainable.
18. In para 11 of the evidence PW1, he stated that when he purchased the house, the suit shop was in possession of legal heirs of Chandmal and
Himatram as tenant. In cross examination, he admitted that after 1 ½ year of execution of sale deed Vardhamanmal defendant no.1 took forcefully
possession after breaking the lock. He has also admitted that he did not give any notice to the defendant No.2 who is running the grocery shop in the
suit house.
19. While deciding the issue no.12, the learned trial court has held that the other legal heirs of Chandmal has not been impleaded as defendants ie.,
Manikchand, therefore, the decree of eviction against one of the tenant cannot be passed. That the defendant No.1 / DW3 stated that in the suit shop
his son Pankaj plaintiff No.2 is running a grocery shop since last 20 to 22 years and before him his father, ie., Chandmal and uncle Himatram used to
run a shop of Jewellery. Himatram, died in 1983 issue less. They used to pay the rent to Ramchand Sharma. He had no information of purchase of the
suit house by Ghanshyamdas - Plaintiff. Chandmal expired in 1975. In cross examination, he admitted that he is a Government employee and in
service last 38 years. He has not stated that the other legal heirs of Chandmal or his brother Manikchand are also tenant in suit shop. The defendant
No.2 who entered into the witness box as DW1 has also stated that in the suit shop his father was never a tenant and after the death Chandmal and
Himartram, the shop is in his possession and at present, he is running a shop. He did not disclose the name of his brother and other legal heirs of
Chandmal. DW2 has also submitted that Chandmal and Himatram used to run the jewellery shop, but due to loss they had closed the business of
Jewellery and thereafter, Himatram has started the shop of grocery for Pankaj Kumar, therefore, it is clear from the defendant’s own evidence
that the shop is in the possession of the defendant No.2, who is running a grocery shop. He has also admitted that he is depositing the rent in the court
therefore; the suit for eviction is maintainable against him being one of the legal heir of original tenant Chandmal. The other brothers of defendant no.2
are not necessary party as the defendant No.1 Vardhamanmal was never the tenant as he was in the Government job. He was never in the business
of Jewellery as well as business of grocery shop and after the death of Chanmal and Himatram, the defendant No.1 became the tenant. Chandmal
expired in the year 1975. Thereafter, Himatram became the sole tenant and Himatram has transferred the tenancy to Pankaj by way of grocery shop.
As per the evidence of defendant No.2, the other legal heirs did not file any application under Order 1 Rule 10 of CPC and did not deposit any rent
and their names have not been disclosed by the defendants No.1 and 2, therefore, they are not necessary party. The learned trial court has wrongly
decided the issue no.12 that other legal heirs of Chandmal are necessary party by way of succession.
20. So far adjudication of issue No.7 is concerned, the trial court has held that the plaintiff has failed to prove that he was given the key of the suit
shop after the sale deed in his favour and thereafter, the defendant No.1 has forcefully entered into the shop. According to the plaintiff the key of the
shop was given on 3.4.1983. PW5 has stated that the key was given one week ago to the sale. In the Civil Suit No.195A/86 and in the notice
dt.9.7.1985, there is no averment of handing over the key, therefore, the trial court has rightly held that the defendants are not encroachers in the suit
shop. Hence the findings recorded on issue No.7 is not liable to be interfered as has been correctly decided.
21. The trial court has recorded the finding in favour of the plaintiff in respect of decree under Section 12(1)(a) of the Act as the defendants did not
pay the rent after receipt of notice. Since there is no cross appeal and there is no challenge to the aforesaid finding by the defendants, therefore, the
said finding recorded for the relief under Section 12(1)(a) of the act has attained finality. The issue No.9 has rightly been answered to the effect that
the defendants did not pay the rent for the last 3 years of Rs.108/-, neither by the defendant No.1 nor by the defendant No.2, till filing the present suit.
22. The learned trial court has dismissed the suit on the basis of the findings recorded on issue No.7 and 12. The finding recorded in the issue No.12
has already been reversed has held above. So far the findings of issue No.7, recorded are concerned, it has been held that the defendants are not
encroachers but they are tenant. The learned trial court while deciding the preliminary issue has already held that the suit for eviction under the
provisions the M.P. Accommodation Control Act is maintainable despite the defendants No.1 and 2 are encroachers. Since the trial court by elaborate
findings has held that the defendants No.1 and 2 are tenants and this court has also upheld in the aforesaid allegation that the defendant No.2 is in
possession being a tenant of the suit shop, therefore, despite that the plaintiff has failed to prove that he is encroacher, the suit for eviction is
maintainable against him.
23. So far the effect of withdrawal of the earlier suit No.195A/86 (308A of 1989) is concerned, the copy of the said plaint is
not on record. The copy of the application filed under Order 23 Rule 1 as well as the order passed on 15.3.1993, are also not on record. The learned
trial court has held that the earlier suit was withdrawn on the ground that the defendants has become encroachers, but in the present suit, the plaintiff
has failed to prove that they are encroachers, therefore, the second suit is not maintainable hence, the plaintiff has failed to prove his suit. When copy
of the earlier suit issues framed therein and the order passed on 15.3.1993 whereby the suit was permitted to be withdrawn with liberty are not
recorded and was not marked as an exhibits, therefore, the learned trial court has wrongly taken the cognizance of the said suit. While passing the
order dt.13.12.1993, the trial court has already held that the present suit is not barred under any law and Manikchand, Vardhamanmal Motichand,
Manoharlal, Laxmichand, Laxmibai and Hemraj are not necessary parties. The defendants have not challenged the order dt.13.12.1993 at the relevant
point of time as well as by cross appeal in this appeal, therefore, the learned trial court has wrongly dismissed the suit on these premises.
24. So far the denial of decree under Section 12(1)(c) of the Act is concerned, the defendants in the Civil Suit No.195A/86 (308A of 1989) denied the
title of the plaintiff as evident from the Exhibit P/20. In the present suit also the defendants have denied the title of the plaintiff. The defendant No.1 is
common in both the suit, therefore, he denied the title of the plaintiff in this suit as well as in earlier suit. In earlier suit, the defendants have claimed the
ownership by virtue of adverse possession, but they are not disputing the sale deed Exhibit P/1 whereby, the plaintiff purchased the suit. Since the
defendants were tenant of the erstwhile owner from whom the plaintiff purchased the suit shop, therefore, the decree under Section 12(1)(c) of the
Act cannot be passed against the defendants, therefore, there is no perversity or infirmity or illegality in the said finding. Hence, the finding recorded
under Section 12(1) (c) of the Act is hereby upheld. The suit has wrongly been dismissed for the decree of eviction
25. In view of above discussion the suit is liable to be decreed under section 12(1)(a) of the M.P. Accommodation Control Act, 1961 against the
defendants . The judgment and decree dated 15.5.2000, passed in Civil Suit No.8A/1993 is hereby modified to the extent that the plaintiff is entitled for
the decree of eviction under section 12(1)(a) of the M.P. Accommodation Control Act, 1961 . The defendants are directed to hand over the vacant
possession of the suit shop to the plaintiff within three months from today . The decree of payment of arrears of rent is maintained.
Decree be drawn accordingly.
No order as to cost.
