Full Judgment
(SECOND APPEAL UNDER SECTION 100 OF THE CPC)
1. By this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short `CPC'), the appellants have challenged the legality and propriety of the judgment and decree dated 23.1.96 passed by the Third Additional Judge to the Court of District Judge, Durg, in Civil Appeal No.8A/95, affirming the judgment and decree of decreeing the suit for eviction of the appellants dated 30.1.1995 passed by the Sixth Civil Judge Class-II, Durg, in Civil Suit No.26-A/91.
2. The present second appeal has been admitted for consideration on 18.4.96 on the following substantial questions of law:-
"1. Whether in view of reported decision given in Mohd.Azeem v. District Judge, Aligarh and others (AIR 1985 S.C.1118), the appellant No.2 was liable to vacate from the suit house?
2. Whether in view of the fact that the respondent has not pleaded specifically that the accommodation acquired by the appellant No.1 is suitable for residence of the appellants, could a decree u/s 12(1) (i) of the M.P. Accommodation Control Act, 1961 be granted?"
3. As per case of the parties, original respondent Bindurbai filed civil suit for eviction against original defendant Gurundmal. Same has been decreed by the Sixth Civil Judge Class-II, Durg on the ground available under Section 12 (1) (i) of the M.P. (Now C.G.) Accommodation Control Act, 1961 (for short `the Act, 1961'). Same was challenged before the lower appellate Court and the lower appellate Court while affirming the judgment and decree of the trial Court has dismissed the appeal.
4. I have heard learned counsel for the parties, perused the impugned judgment and decree, judgment and decree of the trial Court and records of the Courts below.
5. Learned counsel for the appellants vehemently argued that decree under Section 12 (1) (i) of the Act, 1961 has been granted by both the Courts below on the ground that the respondent has acquired the accommodation. Originally suit was filed against Gurundmal, father of appellants No.1 and 3 and husband of appellant No.2. As per finding of both the Courts below, appellant No.1 has acquired accommodation, but appellant No.2 has not acquired any accommodation, in these circumstances, decree for eviction against appellant No.2 was not possible in the light of decision in the matter of Mohd.Azeem v. District Judge, Aligarh and others reported in AIR 1985 SC 1118. Learned counsel further argued that in order to pass the decree for eviction under Section 12 (1) (i) of the Act, 1961, the respondent was under obligation to prove the fact that such accommodation acquired by appellant No.1 was suitable for her residence but the respondent has failed to prove such fact, therefore, decree against appellant No.1 under Section 12 (1) (i) of the Act, 1961 is also not sustainable.
6. On the other hand, learned counsel for the respondent opposed the appeal and argued that appellant No.2 is mother of appellant No.1 who is residing with appellant No.1. Tenancy was joint and the appellants are heirs of original tenant Gurundmal, therefore, acquisition of accommodation by any of the appellants/heirs of original defendant will satisfy the need and requirement of Section 12 (1) (i) of the Act, 1961. Learned counsel further argued that appellant No.1 was under obligation to prove the fact that aforesaid accommodation acquired is not suitable for him, but he has failed to prove, therefore, the only inference would be possible that aforesaid accommodation acquired by appellant No.1 is suitable for him.
7. Provisions of Section 12 (1) (i) of the Act, 1961 read as under:-
"12. (1) (i) that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or, been allotted an accommodation suitable for his residence;"
8. In order to evict the tenant from suit premises under Section 12 (1) (i) of the Act, 1961, landlord is required to prove the availability of ground mentioned in Section 12 (1) (i) of the Act, 1961. Therefore, the respondent was under obligation to prove the fact that the appellants have acquired the vacant possession of accommodation suitable for their residence.
9. Evidence adduced on behalf of the parties reveals that appellant No.1 has acquired the accommodation; other appellants have not acquired the accommodation. The respondent has not adduced any evidence to show that such accommodation is suitable for appellant No.1.
10. As held by the Supreme Court in the matter of Mohd.Azeem (supra), in case of death of original tenant and accommodation is in possession of one of his son in same city, tenancy of other sons, widow and daughter of deceased tenant does not terminate.
11. In the present case, as per evidence only appellant No.1 has acquired the accommodation and not appellant No.2, therefore, eviction of appellant No.2 would not be possible in absence of any ground available under Section 12 (1) (i) of the Act, 1961 against appellant No.2. In absence of any evidence of suitable accommodation acquired by appellant No.1, appellant No.1 also could not be evicted.
12. Consequently, substantial questions of law No.1 and 2 formulated for the decision of this appeal are decided as negative. On the basis of decision on substantial questions of law, the appeal deserves to be allowed and is hereby allowed, judgment and decree of the both the Courts below are hereby set aside and suit for eviction filed on behalf of original respondent is hereby dismissed.
13. Parties shall bear their own cost.
14. Advocate fees as per schedule.
15. Decree be drawn accordingly.