Judgment:
ORDER
P.K. Jaiswal, J.
1. Heard on admission.
This is a tenant's appeal under Section 100, CPC challenging the legality and validity of judgment and decree dated 2-7-2009 passed by XIX Additional District Judge, Jabalpur in Civil Appeal No. 20-A/2009, confirming the judgment and decree passed by IV Civil Judge Class-I, Jabalpur in Civil Suit No. 246-A/2006 whereby the suit of the respondent was decreed under Section 12(1)(c) and (f) of the M.P. Accommodation Control Act, 1961 (in short 'the Act').
2. Shankar Lal Bahre, father of the respondent had let out the suit accommodation consisting of a shop bearing House No. 1219, Ganjipura Main Road, Jabalpur to the defendant-appellant by creating tenancy in his favour for non-residential purposes and the defendant is using the same by doing business of medical store in the name and style of Vikas Medical Store. The tenancy of the appellant is monthly and starts from the first day of each calendar month and ends with the last date of the same month. The suit house belongs to Smt. Laxmi Bai Bahre and Shankar Lal Bahre, mother and father of the respondent. After their death, by virtue of their registered Will dated 15-2-1988, the respondent became owner of the suit properly and his name was mutated in the Corporation record and is paying all the taxes. After the death of respondent's father, the respondent recovered the monthly rent from the appellant. The appellant voluntarily paid the rent to the respondent. The respondent passed the rent receipt in favour of appellant as a landlord and owner of the suit shop. The appellant regularly paid the rent as owner to the respondent without any objection. The appellant attorned the respondent by paying the rent.
3. The respondent who is a medical practitioner is holding a degree of MBBS and M.D. (Medicine) and is running his clinic adjoining to the suit shop. He in his clinic provides the facility of consultation, Echo and ECG etc. to his patients. He filed a suit on 5-5-2005 claiming eviction of the appellant-tenant on the ground that the shop was bonafide required by him to provide TMC and coloured doppler facility to his patients. Except the suit shop he has no other reasonable suitable non-residential accommodation for this purpose in the City of Jabalpur. It was also averred that he is the share-holder and Director of Mahakaushal Hospital, Jabalpur. The back portion of the clinic and adjoining to the tenanted premises is in occupation of his wife Dr. (Smt.) Sushma Bahre who is running X-ray and Sonography Centre in the name and style of 'Disha X-ray and Sonography Clinic Centre'. The rent of the suit shop was Rs. 300/- per month. He also served registered notice on 2-4-2005 and terminated the tenancy on expiry of the tenancy month ending on 30th April, 2005.
4. The appellant-tenant in his written statement admitted that he had taken the tenanted premises on rent from Shri Shankar Lal Bahre, father of the respondent on 16-5-1966 and since then he is in occupation of the said premises and after the death of Shankar Lal Bahre, respondent started receiving the monthly rent from the appellant. It is also contended that respondent is a rent collector does not ipso facto become owner of the premises in terms of Section 12(1)(f) of the Act. He also denied that there was a real or genuine need of the shop by the respondent-plaintiff for any purpose, much less the business. As regards denial of title, he stated in Para 3 of written statement that:
3. The defendant was inducted in the premises by the owner of the said shop namely Shri Shankar Lal Bahre, father of the plaintiff, on 16-5-1966 by virtue and in terms of an agreement. Since then, the defendant is in occupation of the said premises. However, after the death of Shri Shankar Lal Bahre, the plaintiff started receiving the monthly rent from the defendant. Needless to state that mere 'rent collector' does not ipso facto become owner of a premises unless it is demonstrated by placing sufficient material on record to establish that the person seeking decree for eviction under Section 12(1)(f) of the Act is the owner of the premises in question in terms of the words used in Section 12(1)(f) 'if he is the owner thereof'. The plaintiff having not pleaded anything to suggest as to how he claims himself to be the owner of the property, is not entitled to seek a decree of eviction on the said ground. It is, however, not disputed that the defendant is running the medical store from the premises in the name and style of Vikas Medical Stores. So far as the map attached to the plaint is concerned the same is specifically denied being unauthentic, non-descriptive, evasive and incorrect. The plaintiff appears to have omitted deliberately mentioning the dimensions and measurements etc. in the said map for the reasons best known to him and in order to conceal the actual position.
5. It is not disputed by the appellant-tenant that plaintiff is collecting the monthly rent from him and after the death of Shankar Lal Bahre, it is the plaintiff who is issuing the rent receipt and contended that the father of the plaintiff was the owner of the premises. In Para 5, he stated that the respondent is a medical practitioner and is running his clinic adjoining to the suit premises and is providing the facility of consultation, ECO and ECG etc. to his patients but denied that the accommodation is insufficient to the respondent. It is also denied that the respondent has no other reasonable/suitable non-residential accommodation for his use in the City of Jabalpur. In the written statement, the appellant clearly denied the title of the respondent. The respondent by way of amendment gave the detailed particulars about the execution of registered Will dated 10-2-1988 and also claimed the decree under Section 12(1)(c) of the Act on the ground that denial of the title by the appellant is likely to affect adversely and substantially the interest of the respondent and, therefore, he is entitled to evict the appellant on the ground under Section 12(1)(c) of the Act. The appellant amended the written statement and denied that the provisions of Section 12(1)(c) of the Act are attracted. It is also pleaded that for providing TMT, ECO, ECG and Doppler facility the medical practitioner must possess the degree in Radiology/Radio Diagnosis. The respondent does not possess the said requisite qualification. He cannot under take to or run the activities like coloured Doppler, ECO and TMT facility.
6. Learned Trial Court on consideration of evidence adduced by the parties held that the respondent was the owner and landlord of the suit premises and needed the same bonafide for starting his own business. It is also held that denial of title is got being bonafide, eviction was ordered on this ground also. On the aforesaid finding a decree of eviction was passed.
7. The appellant appealed against the said decree. The learned Lower Appellate Court after appreciating the evidence on record has held that the respondent was owner of the suit shop and his need is real and genuine. On the aforesaid finding the Lower Appellate Court also held that the requirement was bonafide and dismissed the appeal of the appellant.
8. It is also held that the appellant denied the derivative title of the respondent and, therefore, Trial Court has not committed any legal error in granting the decree under Section 12(1)(c) of the Act.
9. Learned Counsel for the appellant drew my attention to the averments made in the plaint and submitted that originally when the suit was filed on 7-5-2005, no averments was made as to how he is claiming the ownership of the shop in possession of the appellant. He by way of amendment in Para 1 of the plaint has contended that the suit house belongs to mother and father of the plaintiff and they by virtue of Will bequeathed the same to him through registered Will and on the basis of that Will, the respondent became the owner of the suit property and his name was recorded as owner of the suit property. His submission was that for a decree under Section 12(1)(f) of the Act, the respondent has to prove as to how he became owner of the suit shop. Due execution of the Will filed by the respondent has not been proved. He further submitted that the proof of the attestation of the Will is the mandatory requirement. In the present case, due execution of the Will has not been proved and, therefore, the Courts below committed a legal error in holding that the respondent is the owner of the suit premises. In support of the said contention, he drew my attention to the decision of the Apex Court in the case of Apoline D'Souza v. John D'Souza (2007) SCC 225. The submission of learned Counsel for the appellant was that execution of the Will must be proved at least by one attesting witness, which has not been done in the present case and, therefore, no decree can be passed under Section 12(1)(f) of the Act.
10. In Dilbagrai Punjabi v. Sharad Chandra : AIR 1988 SC 1858, it was held that where a landlord claims eviction of his tenant from a non-residential premises on the ground of bonafide requirement of starting a business, it is essential that he also establishes that he is the owner of the disputed premises. As far as the title of Shankar Lal Bahre set out in Para 1 is concerned, he was the owner and the landlord and that said Shankar Lal Bahre and his wife executed a registered Will dated 15-2-1988 transferring title to the present respondent. After the death of Shankarlal, appellant never disputed the title by way of paying the rent to the respondent who had issued rent receipts to the appellant. After the attornment as aforesaid, the terms and conditions of the tenancy continued to be the same. In Municipal Corporation after the death of Shankar Lal Bahre, the name of respondent was recorded as owner of the suit shop. This question also arose before the Apex Court in Subhash Chandra v. Mohammad Sharif, 1990 JLJ 209, in the context of the right of a tenant to challenge title of his landlord and it was clarified that though the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff, the same cannot be true about a case where the plaintiff's rights are founded on a derivative title. A tenant already in possession can challenge the plaintiff's claim on derivative title showing that the real owner is someone else but this is subject to the rule enunciated under Section 116 of the Evidence Act. This section does not permit the tenant during the continuance of the tenancy, to deny that his landlord had, at the beginning of the tenancy, a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit but what will be limited to the question of title of the original landlord at the time when the tenant was let in. It was also laid down that as far as the derivative title is concerned, a tenant is entitled to show that the plaintiff has not, as a matter of fact, secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason which renders the transfer to be non-existence in the eye of law. The Court further observed that 'these exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy. In Smt. Shanti Sharma v. Smt. Ved Prabha AIR 1987 SC 2028, the Apex Court had held that it is the burden of the landlord to prove that he is the owner in the sense that he would be able to occupy the house after eviction.
11. In the present appeal, it was never disputed by the appellant that Shankar Lal Bahre, father of Dr. Surendra Bahre was not the owner and landlord of the suit premises. Now, after Will was made in respondent's favour by his father and mother, the appellant paid rent to respondent and recognized him as his landlord for a period of more than 14 years. It is, therefore, not open to him to question the validity of Will. Taking the above into consideration, the respondent would be owner of the suit shop because he has right to occupy the same in his own right. He has a right against the tenant to occupy building himself and exclude anyone holding a title lesser them him. He is the owner of the suit accommodation within the meaning of Section 12(1)(f) of the Act. Once the title of the landlord is admitted by tenant by paying rent for a period of more than 14 years, it is not open to him to challenge the same, later. The decision of the Supreme Court in the case of Subhash Chandra v. Mohammad Sharif (supra), as noticed above would not permit him to do so. Section 116 of the Act would come into operation and act as a bar against him in the matter. Under the circumstances, the appellant could not be permitted to deny the title of the respondent.
12. The standard of proof of the ownership in such cases is not the same as it is to be adopted in title suit. In the case of Zehra Bai (Mst.) v. Jagmohan Arora 2000 (2) MPWN Note No. 142, Gwalior Bench of M.P. High Court has held that it is not necessary for the landlord to produce the document of her title when defendant had admitted the relationship of landlord and tenant. Once rent is paid to landlady, she shall be landlord within the definition of the landlord under the M.P. Accommodation Control Act.
13. In the case of Jagdamba Prasad Khandelwal v. Shanti Devi 2002 (1) MPWN 12, it has been held that in an ejectment suit, the Court has to satisfy whether the Estate of the deceased is represented. Unless the 'Will' is disputed by other legal representatives, it is not open for tenant to challenge the 'Will'. Similar view is taken by the M.P. High Court in the matter of Ram Vishal @ Vishali Kachhwaha v. Dwarka Prasad Jaiswal 2009(5) M.P.H.T. 44, wherein it has been held that in a suit for eviction between the landlord and tenant, the title of the landlord does not require strict investigation as required in the title suit, therefore, even in the absence of examination of the attesting witnesses of the Will, the approach of the Courts below, based on admission of the appellant does not appear to be contrary to law or record. The respondent-landlord by cogent evidence has proved that he is owner in the sense that he would be able to occupy the house after eviction. In such a legal situation, it would be reasonable to hold that though a tenant cannot convert an eviction suit into a suit challenging the title of his landlord, it is the obligation of the landlord to satisfy the Court before obtaining a decree for eviction that he was the owner of tenanted premises. The Apex Court in the case of Dr. Ranbir Singh v. Asharfi Lal : (1995) 6 SCC 580, has held that the question of title of the property is not germane for decision of the eviction suit and may examine incidentally but cannot be decided finally. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties.
14. In view of the discussion aforesaid, this Court is of the opinion that the evidence on record fully establishes that respondent was the owner of the premises. After giving my anxious and serious consideration to the contentions of the learned Counsel for the appellant, I find no force and substance in the submission made by the learned Counsel for the defendant-appellant and the principles laid down by the Apex Court in the case of Apoline D'Sauza v. John D'Souza (supra), will not be applicable in eviction suit. Even in the absence of examination of the attesting witnesses of the Will, it cannot be said that respondent has failed to prove his ownership over the suit premises, approach of the Courts below based on admission of the appellant, does not appear to be contrary to law or record.
15. It is true that in the plaint as originally filed no ground under Section 12(1)(c) of the Act has been taken directly. The appellant in Para 3 of his written statement denied the title of respondent and, therefore, the respondent amended the plaint and also prayed for decree under Section 12(1)(c) of the Act. It is well settled that even if a title of the landlord is disclaimed in the written statement, the grounds is made out once the relationship of landlord and tenant is admitted or proved, tenant is stopped from denying the title of the landlord under Section 116 of the Evidence Act.
16. In the present case, the appellant denied the title of the respondent, denial of the title by appellant was not bonafide and learned Courts below have not committed any error in passing the decree against the appellant under Section 12(1)(c) of the Act.
17. Coming to the next ground of eviction under Section 12(1)(1) of the Act, the case of the respondent was that he needed the suit accommodation for providing facilities of coloured Doppler and TMT. The appellant-Ram Kishan Soni (D.W. 1) in Para 11 has deposed that the business for which the premises was needed can only be done by the Radiologist. It is submitted by learned Counsel for the appellant that the respondent is Post Graduate in Medicine and the operation of the TMC and coloured Doppler can be done only by Radiologist and not by anyone. In support of the said contention, he drew my attention to Exh. D-86 and submitted that the respondent cannot handle the TMT and Doppler test as he is not an expert in that branch and under the Regulation 13 (4) of M.P. Medical Council Adhiniyam, 1987, he cannot be permitted to run the machines of TMT and coloured Doppler test. It is not the case of the respondent that he himself will operate TMT and Doppler machines, he can hire the services of expert for conducting the tests of TMT and Doppler to his patients. His case was that the premises was required for TMT and Doppler facilities. There is no bar that respondent cannot install TMT and Doppler machines. Thus, the aforesaid contention of the appellant cannot be accepted nor on the said fact it can be said that the need of the respondent is not genuine. Both the Courts below after appreciating the oral and documentary evidence gave a finding that the need of the respondent is natural, real, sincere and honest. The said finding is based on appreciation of evidence on record. The finding given by the Courts below was a finding of fact and cannot be interfered at the stage of second appeal under Section 100 of IPC.
18. For the above mentioned reasons, no substantial question of law arises in this appeal. The appeal filed by the appellant has no merit and is liable to be dismissed.
19. It was lastly submitted by the learned Counsel for the appellant that in case if this Court comes to the conclusion that appeal filed by the tenant has no merit then he may be granted two months' time to vacate the suit premises because the appellant is in occupation of the suit premises for a period of more than 43 years.
20. Considering these facts, I am inclined to grant two months time to the appellant and it is directed that the appellant shall hand over the vacant possession of the suit premises on or before 7th February, 2010.
21. With the aforesaid, the appeal is dismissed.