R.S. Garg, J.
1. The appellant being aggrieved by the judgment and decree dated. 9-2-1994 passed in regular Civil Appeal No. 1-A/92 by the learned II Addl. Judge to the Court of Distt. Judge, Bilaspur, reversing the judgment and decree dated 21-10-1991 passed in Civil Suit No. 22-A/91 by the learned VI Civil Judge, Class II, has preferred this appeal.
2. The brief facts leading to the appeal are that the respondent/landlord having succeeded to the property in a will executed by Siyavarsharan filed a suit for eviction of the appellant/tenant Ramsewak alleging that the tenant has not paid the rent despite demand, has changed the user of the premises, the premises are needed bona fide by the landlord, the premises need repairs and the tenant has acquired vacant possession of the accommodation suitable for his residence. The original tenant Ramsewak contested the suit on all possible grounds and contended that hewas not liable to be evicted. It was submitted that the user of the suit premises has not been changed. The premises did not need repairs and the tenant has not acquired an accom-modation suitable for his residence. The learned trial Court, after hearing the parties, came to the conclusion that the plaintiff could not make out a case for eviction, it dismissed the suit. Being aggrieved by the said dismissal the plaintiff preferred a regular appeal. Learned First Appellate Court held that the plaintiff was successful in proving the change of the user, the bona fide requirement and acquisition of the house by the tenant, though in para 18 of the judgment it held positively that the tenant is using the house as a godown were when it was given to them for residential purposes. In para 23 of the judgment it held that the tenant is liable to be evicted on the grounds enumerated under Sections. 12(1)(e) and 12(1)(i) of the M.P. Accommodation Control Act (hereinafter referred to as the Act). This second appeal has been admitted on 21-3-1995 on the following substantial question of law :--
'Whether the Lower Appellate Court is just and proper in reversing the judgment and decree of the trial Court where as the findings are that the suit is barred under Section 12(4) of the M.P. Accommodation Control Act?'
3. A bare reading of the question would show that the Court was of the opinion that the findings regarding Section 12(4) of the Act were bad and a decree on the ground could not be passed. From the appeal memo it does not appear that the decree granted on the ground of Sections 12(1)(d)and 12(1)(i) of the Act was ever sought to be challenged. Facing with the difficulty Shri Trivedi submitted that the appellant was misled by the observations made in para 23 and thought that decree under Section 12(1)(d) was not passed Assuming that to be correct para 23 is clear about the availability of the ground under Section 12(1)(i). Shri Trivedi thereafter submitted that the findings of the First Appellate Court regarding the availability of the ground under Section 12(1)(i) are perverse and he be permitted to challenge those findings irrespective of the question. He also submitted that findings regarding Section 12(1)(d) are also perverse. Shri Shrivastava submitted that in absence of a question raised in the appeal memo or thequestion framed at the time of admission ofthe appeal, such questions cannot be permitted. Section 100(4) gives a wide discretionto the Court to hear the appeal on suchfurther questions which arises in the matter hithe opinion of the Court/I permitted ShriTrivedi to argue the matter on these 2 groundsalso.
4. Regarding Section 12(4) Shri Trivedi submitted that in view of the language of Section 12(4) it cannot be contended that the landlord was entitled to file the suit within 1 year of the death of the executant of the will, as the plaintiff for the first time acquired certain rights by transfer. According to him Section 12(4). Is absolute bar against the landlord who wants to file a suit within 1 year from the acquisition of the title. On the other hand, Shri Shrivastava submitted that language of Section 12(4) does not include the transfers by way of succession. According to him the word acquire may be of widest amplitude but it is restricted in its meaning by the words 'by transfer'. In my opinion the contention raised by Shri Trivedi has to be accepted. The acquisition of the right, title and interest may be by way of some transfer. But in any case it is an acquisition. It cannot be gainsaid that the acquisition can be by 2 modes i.e. by way of transfer under Transfer of Property Act and by way of succession under Indian Succession Act. In either of the case, in my opinion, the title passes to the transferee. The accommodation is acquired by transfer irrespective of whether it is by way of sale, mortgage, gift or any other mode known under the Transfer of Property Act and such a transfer would also include a transfer which becomes effective only on the death of the testator. Relying Upon Sarin v. Ajit Kumar, AIR 1966 SC 432, Shri Shrivastava contended that the intention of the legislature was to put a bar on the unscrupulous landlord, who to evict the tenant made .transfer of the property. No doubt the Supreme Court has so observed in the judgment. The question with which we are faced is whether the transfer effected by a will is a transfer for the purposes of Section 12(4) of the Act or not. The Supreme Court was dealing with the case regarding-partition. It held that the persons who were the joint owners by way of partition what they get is the absolute right. The Supreme Courtfurther held that conferral of the absolute right in favour of the joint owner would not amount to a transfer. The Supreme Court did not hold that a transfer effected by a Will, which certainly would come into operation after the death of the testator, would also not, be a transfer. The further observation from para 13 of the judgment would be important which is as under :
'Having regard to the object intended to be achieved by this provision, we are not inclined to hold that a person who acquired property by partition can fall within the scope of its provision even though the property which he acquired by partition did in a sense belong to him before such transfer. Where a property belongs to an undivided Hindu family and on partition it falls to the share of one of the coparceners of the family, there is no doubt a change of the landlord of the said premises, but the said change is not of the same character as the change which is effected by transfer of premises to which Section 14(6) refers. In regard to cases falling under Section 14(6), a person who had no title to the premises and in that sense, was a stranger, becomes a landlord by virtue of the transfer. In regard to a partition, the position is entirely different. When the appellant was inducted into the premises, the premises belonged to the undivided Hindu family consisting of respondent No. I, his father and his brother. After partition, instead of the undivided Hindu family, respondent No. 1 alone had become landlord of the premises. We are satisfied that it would be unreasonable to hold that allotment of one parcel of property belonging to an undivided Hindu family to an individual coparcener as a result of partition is an acquisition of the said coparcener within the' meaning of Section 14(6).'
5. The Supreme Court emphasised by saying that Section 14(6) would be applicable to a person who had no title to the premises and in that sense was a stranger, beeomes a landlord by virtue of the transfer, then he cannot maintain a suit. In the instant case it cannot be doubted that the plaintiff prior to the death of the testator had no rights in the property. The succession would open on the death and the will Would become effective immediately.Under these circumstances, I have no hesitation in holding that even if the plaintiff acquired in the succession, then too the bar of Section 12(4) is applicable. In almost similar situation a Division Bench of the Bombay High Court in the matter of Anant Trimbak v. Vasant Pratap, AIR 1980 Bom 69, has observed as under (para 9):--
'It is true that the bequest becomes effective only after the death of the testator and is liable to be revoked at any time. This by itself, however, cannot make it anything but transfer. Even the restricted concept of 'transfer' inter vivos in Section 5 of the T. P. Act contemplated its becoming effective at some future date in a given case. Bequest does result in the passing of the property from the testator to the legatee. It is no doubt different in its nature from the sale, mortgage, lease or gift. It is nonetheless a transfer in its generic sense.'
The decree passed by the learned First Appellate Court on the ground of the bona fide requirement has to be set aside and the question on which the appeal has been admitted has to be answered in affirmative in favour of the appellant.
6. Regarding Section 12(1)(d), learned counsel contended that the findings recorded by the First Appellate Court are perverse. Shri Trivedi took me through the findings and the evidence. The learned First Appellate Court has come to the conclusion after considering the evidence and the circumstances floating on the surface of the records that ground under Section 12(1)(d) is legally made out in favour of the landlord. The First Appellate Court relying on the evidence of the plaintiff and the witnesses has come to the conclusion that the defendants are residing in the house situated at Nehru Nagar and are using the suit premises as godown. If the property was leased out for residential purposes and is being differently used, then certainly the tenant is liable to be evicted.
7. Regarding Section 12(1)(i) it is to be seen that the plaintiff in the suit itself has contended that the tenant i.e. Ramsewak has built a house and started residing with his family members in the same house. Theground was available against the tenant. Thesuccessors by amending the plea wanted tosubmit that some of the sucessors of thetenant were still residing in the suit premisesand only one son of deceased Ramsewak wasresiding in Nehru Nagar house. Once it isfound that the tenant built, acquired vacantpossession or has been allotted an accommodation suitable for his residence then the:aw mandates that he must vacate the premises belonging to the landlord. The suitability of the accommodation is to be consideredvis-a-vis the premises required. If the tenantleaves behind him number of successors thenit is not for the landlord to prove before theCourt that each of the successors has built,acquired or has been allotted some accommodation, Sufficient it is to prove that theoriginal tenant or the successors have acquired some premises. The legal representatives of the tenant are joint tenants. It cannottherefore, be submitted that because only oneout of the various successors of the tenant wasoccupying the house acquired by the deceasedtenant, the others cannot be evicted. Thelearned first appellate Court has given cogentreasons to come to this finding and afterconsidering the entire evidence, has come tothe conclusion that the plaintiff could makeout a case under Section 12(1)(i). In my opinion, thefindings cannot be challenged as perverse.Assuming as Shri Trivedi argued anotherview was possible, it is not for the secondappellate Court to re-appreciate the findingsand come to a different conclusion. Thefindings regarding availability of the groundunder Section (12)(1)(d) and 12(1)(i) are unchalleng-able. These are based on proper appreciationof the evidence. I do not find any reason toreverse these findings as I am also satisfiedthat the findings are perfect and based onevidence.
8. The decree granted on the ground of bona fide requirement is set aside. However, the decree is maintained on the availability of the ground under Section 12(1)(d) and 12(1)(i).
9. The appeal has no force and is liable to be dismissed. The appellant shall vacate the premises on or before 31-3-96 provided he furnishes solvent security to the satisfactionof the executing Court with unconditional undertaking that he shall vacate the premises on or before the said date. The tenant shall also be obliged to pay the mesne profits @ equivalent to the rate of the rent so long as he is in occupation. The undertaking and security be furnished within 1 month from today. If any of the condition is violated or not observed, the decree shall become executable immediately. No orders as to costs.