1. This appeal is directed on behalf of the appellant defendant under Section 100 of CPC being aggrieved by the judgment and decree dated 28.7.06 passed by Ist Additional District Judge, to the court of Ist Additional District Judge, Satna in Civil Regular Appeal No. 10-A/06 dismissing his appeal by affirming the judgment and decree dated 6.1.03 passed by IInd Civil Judge, Class-II, Satna in Civil Original Suit No. 289-A/99 decreeing the suit of the respondent against him for eviction on the ground enumerated under Section 12 (1) (a), 12 (1) (b), 12 (1) ( c) and 12 (1) (f) of the M.P. Accommodation Control Act 1961, in short "The Act".
2. Facts giving rise to this appeal in short are that the predecessor in title of the respondent herein namely Mahadai, wife of Laxmi Chand Safadiya filed a suit for eviction against the appellant with respect of the premises situated at house no. 849/5 in ward no. 15 of Subhash Chowk, Satna contending that the appellant being her monthly tenant @ Rs.300/- per month for non residential purposes is in occupation of aforesaid premises also described by mentioning the boundaries in para 1 of the plaint. As per further averments the appellant being defaulter in payment of the rent has not paid the rent of such accommodation since June 1984 and in such premises Rs.3000/- has become outstanding in such account. By denying the title of the respondent landlord with respect of the aforesaid house, the appellant has caused substantial injuries to the rights of the respondent and thereby he became nuisance in such premises. The disputed premises was used contrary to the purpose for which the appellant was inducted as tenant. The possession of some part of the premises contrary to the terms of tenacy without consent or obtaining the permission of the respondent landlord has been parted by the appellant to one Vinod Tailor earlier and subsequently to a person of Sindhi community. The principle plaintiff predecessor in title of the respondent was also in need of such accommodation for her own business for which she did not have any other convenient and suitable alternate vacant accommodation of her own in the township of Satna. With these averments the impugned suit was filed by the deceased plaintiff Mahadai bai on the grounds available under Section 12 (1) (a), 12 (1) (b), 12 (1) ( c) and 12 (1) (f) of the Act.
3. In pendency of the suit the principle plaintiff Mahadai Bai died, on which her L.R. - the present respondent Ashish Kumar Safadia alongwith her mother had come on record to prosecute the suit but at subsequent stage his mother also died, on which her name was deleted from the record. It also appears from the record that subsequent to substitute the name of respondent on record by way of amendment also pleaded his bonafide genuine requirement of the accommodation in dispute for his business for which he did not have any other suitable or convenient accommodation of his own in the township of Satna.
4. In the written statement of the appellant the averments of the plaint are denied. The right of the landlordship of the deceased plaintiff with respect of the disputed premises is also disputed and denied. The factual matrix with respect of the above mentioned grounds of eviction are specifically denied in the written statement. The family partition between the deceased plaintiff Mahadai and her other the then family members, in which she got the disputed property was also denied and the prayer for dismissal of the suit is made.
5. In view of the pleadings of the parties, the trial court after framing as many as eleven issues recorded the evidence on them. On appreciation of the same the trial court holding the relationship of landlord and tenant between them decreed the suit of the respondent for eviction against the appellant on the grounds of arrears of rent, nuisance, bonafide genuine requirement of the disputed premises to the respondent for business and also on the ground of sub tenancy, the ground is enumerated under Section 12 (1) (a) (b) ( e) and (f). Being dissatisfied with such decree the appellant, herein filed appeal before the subordinate appellate court. On consideration by affirming such decree, the same was dismissed, on which the appellant has come forward to this court with this appeal.
6. Shri G.S. Ahulwalia, learned appearing counsel of the appellant after taking me through pleadings of the parties, evidence available on record and the exhibited documents, said that the impugned decree has been passed by the courts below without proper appreciation of the available evidence. According to him on proper appreciation of the same, the courts below ought to have dismissed the suit of the respondent on all the above mentioned grounds. In continuation, he said that his defence was struck down by the courts below under the wrong premises. Inspite the proved circumstances by cogent evidence showing the respondent had sufficient alternate available accommodation of his own for the alleged need, the courts below contrary to such evidence had decreed the suit on the ground of bonafide genuine requirement, even the admission of the respondent in this regard has not been considered by the courts below while passing the decree on such ground. In the lack of any admissible evidence showing that the alleged property was given to the deceased plaintiff in family partition, the deceased plaintiff could not be deemed to be landlord of the appellant and in such premises the decree passed by the course below in favour of the respondent on the ground of nuisance under Section 12 (1) (c) is not sustainable. The alleged construction in front of the shop was not a part of the disputed premises, inspite that taking into consideration such other premises the decree has been passed on the ground of sub tenancy against him under Section 12 (1) (b) of the Act. Lastly, he said that the disputed premises was never used by the appellant for any inconsistent purpose for which it was not let out to him and prayed for admission of this appeal on the substantial questions of law mentioned in the appeal memo. In alternate, he said that in any case, if it is found that this appeal is not involving any substantial question of law as per requirement of Section 100 of the CPC, then keeping in view the circumstance that he is in possession of the premises since long and it would not be possible for him to vacate the same in a short period of one month or two, therefore, by adopting some lenient approach some time be extended to him for vacating the premises by imposing the terms and conditions under the discretion of the court.
7. Having heard the counsel, keeping in view his arguments advanced, I have carefully gone through the record alongwith the impugned judgments.
8. As per concurrent findings of the courts below, the relationship between the parties as landlord and tenant has been established and such concurrent findings being in consonance with available evidence is a finding of fact and the same could no be interfered under Section 100 of CPC at this stage as laid down by the Apex Court in the matter of Kalyan Singh v. Ramswaroop and another reported in 1996 JLJ, 247. Such view is also followed by this court in the matter of Machala Bai v. Nanak Ram 2006
9. Apart from the above, the concurrent findings of the courts on the below on the ground of bonafide genuine requirement being in consonance with the available evidence, in view of the law laid down by the Apex Court in the matter of Dr. Ranbir Singh v. Asharfi Lal-(1995) 6 SCC 580 , holding the concurrent findings on such ground in consonance with the available evidence being findings of fact could not be interfered under section 100 of CPC at the stage of second appeal. So this appeal is not giving any circumstance to frame the substantial question of law on such ground.
10. So far striking out the defence of the respondent on account of non depositing the rent and pursuant to that passing the decree of eviction under Section 12 (1) (a) of the Act are concerned, the concurrent findings on such ground being in consonance with evidence, in view of the law laid down by the Apex Court in the matter of Jamnalal and Ors. v. Radheshyam reported in (2000) 4 S.C.C. 380, could not be interfered under Section 100 of the CPC at this stage.
11. So far the decree on the grounds of sub tenancy and of the nuisance defined under Section 12 (1) (b) and 12 (1) ( c) of the Act are concerned, it is suffice to say that impugned decree on such ground have been passed concurrently on appreciation of the available evidence and on going through available evidence and the findings of courts below, I have not found any perversity between them. On the contrary, such findings appears to be in consonance with such evidence. It is settled proposition of law that concurrent findings of the courts below based on appreciation of evidence, however are erroneous, could not be interfered under Section 100 of the CPC at the stage of second appeal as laid down by the Apex Court in the matter of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others reported in AIR 1999 S.C. 2213.
12. In view of the aforesaid, I have not found any material or substance in the matter giving rise to any substantial question of law requiring any consideration under Section 100 of CPC at this stage. Consequently, this appeal being devoid of any such question deserves to be and is hereby dismissed at the motion hearing stage. There shall be no order as to the costs.
13. However, taking into consideration that the appellant is in possession of the disputed accommodation since long, therefore, it would not be possible for him to vacate the same within short period of one month or two. Therefore, subject to some conditions, I deem fit to extend some time to him for vacating the disputed premises. Hence, it is directed that on depositing the entire decreetal sum including the arrears of the rent, if any, and on furnishing appropriate surety to the satisfaction of the trial court within thirty days from today along with an undertaking that the appellant shall vacate the disputed premises and hand-over its peaceful possession to the decree holder on or before 30 t h June 2011, then subject to payment of regular monthly mesne profit of the disputed accommodation at the rate of the monthly rent as held by the courts below within 15 days from the end of every such month, the appellant is extended the time to vacate the premises up to 30 t h June 2011. Failing in compliance of any of the aforesaid condition, the respondents/decree holder and the executing court shall be at liberty to execute the decree of eviction forthwith with all aspects.
14.The appeal is dismissed as indicated above.