1. The appellant/defendant has directed this appeal under Section 100 of the CPC being aggrieved by the judgment and decree dated 16.4.2010 passed by Ist Additional District Judge Harda, in regular civil appeal No.1-A/2010 whereby, upholding the judgment and decree dated 19.7.06 passed by II Civil Judge Class-II Harda in original civil suit No. 417-A/2004, decreeing the suit of the respondents against him for eviction under the provisions of Transfer of Property Act, his appeal has been dismissed.
2. It is undisputed legal position that the provisions of M.P. Accommodation Control Act, 1961 are not made applicable to town Timarni, District Harda where the disputed premises is situated.
3. The facts giving rise to this appeal in short are that one Madhusudan Agarwal, the father of respondent No.1 to 4, being deaf and dumb person, aged about 80 years, filed the impugned suit for eviction against the appellant through his son and general power of attorney holder, Lavkush Agarwal, contending that he being deaf and dumb person, is fully competent to transmit his thoughts to other persons through gestures and in such a manner he had given the instruction to his aforesaid power of attorney holder, to file the impugned suit. It is further contended that he acquired the house premises measuring 2310 sq.ft. situated at Shankar Mandir road, Timarni in his share on 30.3.1993 in a family arrangement carried out between amongst the co-parcenors of their joint Hindu family and thereby he became the sole owner of the same. The description and the boundaries of such house is mentioned in the plaint. As per further averments, out of the aforesaid house the half of the portion towards the eastern side, was given to the appellant for one year on annual tenancy at the rate of Rs.9601/- per annum. The appellant, being defaulter in payment of the regular rent, has not paid the rent for the period between 1.4.2003 to 31.3.2004 ie Rs.9601/-, on which, the deceased plaintiff, through his counsel, had given the quit notice dated 16.5.2003 to the appellant whereby demanding the dues, his tenancy in the disputed premises was also terminated on expiry of the tenancy month on 31.3.2004. The same was duly served on him but instead to vacate the premises and pay the arrears of rent, the same was replied with false averments challenging the title of the respondent with respect of the disputed house. With these averments, the impugned suit for eviction as well as for recovery of the arrears of rent and mesne profit was filed.
3. In the written statement of the appellant, the averments of the plaint relating to the relationship of landlord and tenant are specifically denied. The acquisition of the title of the alleged house by the respondent in his alleged family partition, is also denied. The execution of the alleged deed of family arrangement is also disputed. In such premises, the averments regarding arrears of rent and termination of tenancy by the alleged notice, are also denied. However, service of the aforesaid notice on him, is admitted. In special pleadings it is stated that the disputed house was never taken on tenancy and, in such premises, no relationship of landlord and tenant had been established between them. In fact, initially, the house was belonging to maternal grand father of the appellant, namely, Ramjiyavan Agarwal, who in his lifetime, had given such premises to his mother, Smt. Kusum Bai Agarwal and since then, the appellant along with his mother is residing in such house. It is also stated that initially such house was given to his mother Smt Kusum Bai, in dilapidated condition, thereafter the same was got repaired by spending huge amount by his mother. With these pleadings prayer for dismissal of the suit is made.
4. In view of the pleadings of the parties, after framing the issues and recording the evidence, on appreciation of the same, by holding the principal plaintiff (predecessor of the respondents) to be the owner of the disputed house, the appellant was held to be his tenant in such premises at the rate of Rs.9601/- P.A and, also by holding that such tenancy was duly terminated by serving the quit notice on the appellant, the impugned suit for eviction was decreed by the trial court, on which, appellant preferred the appeal before the subordinate appellate court. On consideration, by affirming the decree of the trial court, the same was dismissed, thereafter, the appellant has come forward to this court with this appeal.
5. It appears from the record that subsequent to the judgment of the trial court and in pendency of the appeal, the principal plaintiff Madhusudan Agarwal died, on which, his legal representatives, respondents No.1 to 4, were substituted on record before the subordinate appellate court.
6. Shri A.K.Choubey, learned appearing counsel of the appellant, after taking me through the pleadings of the parties, evidence available on the record and the exhibited documents said that the principal plaintiff or the respondents have utterly failed to prove their acquisition of title over the property in the family arrangement by any admissible document. In view of the amendment in the provisions of the Stamp Act and the Registration Act, the oral partition or family arrangement of joint hindu family property, is neither permissible nor admissible. The same could be considered if the same is carried-out on requisite stamp paper and with registered document as per requirement of the concerning provisions. In such premises, it could not be deemed that the respondents or their predecessor-in-title, acquisitioned the title over the disputed property exclusively and, in the lack of it, the relationship of the landlord and tenant between the parties, could not have been held by the courts below. It was also argued that the principal plaintiff, being deaf and dumb person, was not competent to enter in any agreement of such tenancy and, in such premises, it could not be said that the relationship of landlord and tenant was established between the parties. With these averments the prayer for admission of this appeal on the proposed substantial questions of law mentioned in the appeal memo, is made.
7. After hearing the counsel, I have carefully gone through the record and also perused the impugned judgments. I have not found any infirmity or perversity in the findings of the courts below, decreeing the suit of the respondents, giving rise to any substantial question of law at this stage. On appreciation of the evidence, the trial court has categorically held that the principal plaintiff Madhusudan got the premises in his share in the family arrangement of his Joint Hindu Family property and, in such premises, taking into consideration the rent receipts Ex.P/2, Ex.P/3, by holding the appellant to be the tenant of the respondent, it was held that such tenancy was duly terminated by the deceased/plaintiff vide quit notice Ex.P/7 and, in such premises, the suit was decreed by such court. On filing the appeal by the appellant, by affirming such findings, the same was dismissed.
8. It is undisputed fact on record that the alleged family arrangement in which the principal plaintiff got the disputed property in his share has not been challenged by any co- parcenor of their joint hindu family between whom such partition had taken place. So, the appellant being stranger for such partition, did not have any authority to challenge the same on any of the grounds. In any case, for the sake of arguments, if the property was belonging to the joint hindu family in which the deceased plaintiff was also one of the co- parcenor, then, being co-parcenor, he was the co-owner of the property and, therefore, he had a right to file the suit for eviction against the appellant and, in such premises, he was obliged to prove only the relationship of landlord and tenant with appellant. As per concurrent findings of the courts below, such relationship has been found to be proved. Thus, in view of the settled legal proposition of the law laid down by the Apex Court in the matter of Kalyan Singh v. Ramswaroop and another-1996 JLJ-247, the concurrent findings based on appreciation of evidence on the question of relationship as landlord and tenant between the parties, being findings of fact, could not be interfered with under section 100 of the CPC at the stage of second appeal. Such principle is further followed by this court in the matter of Machala Bai v. Nanak Ram-2006(2) MPLJ-484. So, on such question, this appeal is not involving any substantial question of law
9. Besides the above, the appellant being stranger did not have any right to challenge the title of the respondents or their predecessor with respect of the premises thus the argument advanced by the appellant's counsel on the basis of Stamp Act and the Registration Act, are not helping him. Even otherwise, in view of the aforesaid discussion, if it is deemed that respondents had a limited title over the property then, being stranger with respect of title of the property the appellant did not have any right to challenge the same in any manner.
10. It is needless to state here that after holding the relationship between the parties as landlord and tenant, it was concurrently found by both the courts below that the alleged annual tenancy of the appellant has been duly terminated by respondents predecessor by serving the quit notice Ex.P/7 on him. In such premises this appeal is not involving any substantial question of law on the question of termination of tenancy.
11. In the aforesaid premises, I have not found any material circumstance in the matter giving rise to any question of law muchless the substantial question of law requiring any consideration under section 100 of the CPC at the stage of second appeal, resultantly, this appeal being devoids of any question of law, deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to the cost.
12. 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. Therefore, subject to some conditions, I deem fit to extend some time to them for vacating the disputed premises. Hence, it is directed that on depositing the entire decreetal sum including the arrears of the rent and mesne profit if any at the rate of Rs.9601/- P.A, within thirty days and also 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 31.07.2011, then subject to payment of regular monthly mesne profit of the disputed accommodation, according to the ratio of the aforesaid annual rent, within 15 days from the end of Gregorian calender month, the appellant is extended the time to vacate the premises up to 31.7.2011. 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.
13. The appeal is dismissed with the aforesaid observations for extending the time to the appellants for vacating the premises as stated above.