Ranjit Narayan Vs. Laxmanbhai - Court Judgment

P.C. Agarwal, J.

1. Appellant on 21-3-1973 filed a civil suit for eviction and arrears of rent. Initially, ground taken was one under Section 12(1) (a) of the Madhya Pradesh Accommodation Control Act, 1961 ('Act' for short) that is for non-payment of arrears of rent despite service of demand notice hut that ground was given up during the trial. A fresh ground under Section 12 (1) (c) of the Act that is dis-claimer of title by tenant was added by way of amendment. However, such ground for eviction did not find favour either of the Courts below.

2. Admittedly, the respondent had executed a rent note (Ex. P-1) on 18-2-1966 in favour of the appellant. The respondent continued to pay rent to the appellant up till 31-1-1972. As per respondent Vijay Narayan Haksar, the brother of appellant had served a notice (Ex. D-2) claiming payment of rent from him on the ground that the suit shop had fallen in his share in partition with a copy of judgment of this Court in F.A. No. 9/1964 (Vijay Narayan Haksar v. Ranjit Narayan Haksar and Anr.) referring that the western shop had fallen in the share of Vijay Narayan Haksar where upon on 6-4-1973 the respondent had claimed to have paid arrears of rent between 1-2-1972 to 30-3-1973 to Vijay Narayan Haksar and obtained an acknowledgment of receipt vide Ex. D-3. The appellant had served a quit-cum-demand notice (Ex. P-2), dated 3-3-1972 which was received by the respondent on 5-3-1972 vide Ex. P-3 and was replied vide Ex. P-4 by the respondent claiming that to safe-guard his interest between the appellant and his rival brother/claimant, he would deposit the arrears of rent in Court. At the same time the respondent had replied on 13-11-1955 to Vijay Narayan Haksar that he is not his landlord nor any arrears are due as such arrears have already been paid to the appellant and that any attempt of interference by Vijay Narayan Haksar in the tenanted premises would be unauthorized. On these facts the learned Trial Court did not find the ground under Section 12 (1) (c) of the Act proved. However, he did not find it also proved that the respondent had paid arrears of rent between 1-2-1972 to 31-3-1973 to Vijay Narayan Haksar as per Ex. D-3. The First Appellate Court held that the act of respondent was bona fide to safe-guard his own interest and payment of arrears of rent between 1-2-1972 to 31-3-1973 to be ineffective immaterial and not affective the interest of the appellant.

3. On 13-4-1988 the present second appeal was admitted on following substantial question of law :--

'Whether the facts and in the circumstances of the case, the Court below erred in law in holding that the plaintiff was not entitled to the relief of eviction on the grounds specified in Section 12 (1) (c) of the M.P. Accommodation Control Act, 1961 ?'

4. I have heard both the Advocates and have perused the record and judgment of both the Courts below.

5. The appellant has filed LA. No. 4536/2003 on 17-11-2003 for taking order of Criminal Court framing charges under Sections 420/34, 467 and 468 of the Indian Penal Code against Smt. Vijay Laxmi w/o Late Vijay Narayan Haksar and Hasmukh Pakteria the son of respondent and order passed by Sessions Court in Revision No. 141/2000 whereby revision against such order have been dismissed on 15-12-2003. I.A. No. 4824/2003 was filed under Order 41 Rule 27 of the Code for taking certified copy of the sale-deed dated 23-5-1996 on record. It was claimed that western portion of Suraj Compound had been sold by the heirs of late Vijay Narayan Haksar in favour of Hasmukh Pakteria the son of respondent. Both these applications had been contested by the respondent on the ground that in a partition between two brothers on 26-9-1953 the suit shop had fallen into share of late Vijay Narayan Haksar.

6. Learned Senior Advocate for the appellant has relied upon K. Venkataramiah v. Seetharama Reddy, AIR 1963 SC 1526, Bombay Corporation v. Pancham, AIR 1965 SC 1008, Syed Abdul Khader v. Kami Reddy, AIR 1979 SC 553, holding that the Appellate Court may take additional evidence for enabling it to pronounce a judgment. It has further been argued that these documents have come into existence after the impugned decree was passed by the First Appellate Court and thus, can be taken on record to keep abreast with the subsequent happenings and events. It is argued on basis of Jugan Bai v. Mohd. Khan, 1996 (II) MPWN 44, where a copy of Civil Court's order were sought to be introduced as an additional evidence, Makhan Singh v. Lad Bai, 1983 MPWN 65, where public documents, i.e., order of Trial Court were sought to be taken on record. Chhotelal v. Additional Collector, Indore, 1983 MPWN 228, where documents sought to be produced had come into existence subsequent to filing of appeal and such applications were allowed and additional documents had been taken on record upon on basis of Ladli Prasad Zutshi v. Emperor, AIR 1931 Allahabad 364. It is claimed on force of Vasudeo v. Tikaram, 1994 (I) MPWN 198, later on relied in Nawab Saheb v. Firoz Ahmed, 2002(3) M.P.H.T. 414 = 2002 (5) MPLJ 438, that the record of sale-deed maintained by Sub-Registrar is a public document and certified copy of such deed is admissible under Section 74 of the Evidence Act. Inspiration is sought from Mahendra Kumar v. Moolchand, 1994 (II) MPWN 215, also wherein part of a sale-deed had been relied upon and such copy of sale-deed was held to be admissible. Having heard Advocates of both the parties, I am of the view that both these applications may be dis-allowed and documents may not be considered for decision of appeal. The reason being that neither party has pleaded subsequent change in the factual situation and thus, taking additional evidence had not been necessary to enable this Court to pronounce judgment.

7. Grant of opportunity to produce additional evidence to the respondent is not necessary as there has been no such pleading by the respondent that his son has become the owner of the suit shop nor dismissal of the appeal is sought on that ground. Thus, the controversy whether any sale-deed was executed in favour of the son of the respondent by the heirs of late Vijay Narayan Haksar has no material bearing on the result of this second appeal which could otherwise be disposed of on the material on record itself.

8. It is true that in the plaint as originally filed no ground under Section 12(1) (c) of the Act had been taken directly. Thought, of course basic facts for the plea had been there. The plaint as it existed could on proper construction be held to include such a ground, Sardar Soorata Singh v. Sharad Chand Chitlangya, 1991 MPRCJ NOC 80. It is, well settled that even if the title of landlord is disclaimed in reply notice in view of Shantilal v. Gauswami, 1984 MPWN 494, Vidya Devi v. Satpal, 1981 MPRCJ NOC 53, or in the written statement, in view of M. Subbamo v. P.V.K. Krishna Rao, AIR 1989 SC 2187 = 1990 (1) AIRCJ 97 and Bhagwati Prasad v. Ramesh Prasad, 1994 MPLJ 619, the grounds as made out once either the relationship of landlord and tenant is admitted or proved tenant is estopped from denying the title of the landlord under Section 116 of the Evidence Act. S. Thangappan v. P. Padmavathy, (1999) 7 SCC 474.

9. Balveer Singh v. Kishanlal, 1987 MPRCJ 139 (DB) followed in Ibrahim v. AbdulJabbar, 1993 JLJ 654, are clear authorities that dis-claimer of title of the landlord per re 'is likely to affect adversely and substantially the interest of the landlord' therein and leave aside in exceptional circumstances, nothing more has to be established'. Contrary view taken in Nebraj v. Smt. Amrit Kaur, 1973 MPLJ 386, had not been approved. In Balveer Singh (cited supra), Luna Khan v. Lalu, 1992 (1) RCR 289 (Rajasthan), N.A.S. Ansari v. M. Sarangan, VII-1996 (2) AIRCJ 106, Amiya Kumar Dutta v. Krishna Singh, 1994 (I) MPJR 71, are other authorities on the point. The point is so well settled that no detailed discussion is necessary.

10. In the facts of the present case, the respondent on receipt of quit-cum-demand notice (Ex. P-2) had in reply notice (Ex. P-4) had claimed that the brother of appellant Vijay Narayan Haksar had been claiming to be the landlord. It was declared by him that to safe-guard his interest, he would deposit the rent in Court to avoid embarrassment to him. However, he did not deposit arrears of rent in the Court. Earlier on 13-11-1955 the respondent had given a notice (Ex. P-5) to Vijay Narayan Haksar that he also was not his landlord. As per pleading the respondent had paid arrears of rent between 1-2-1972 to 31-3-1973 vide Ex. D-3 to Vijay Narayan Haksar. However, the learned Trial Court has not believed such payment of rent or acknowledgment of receipt (Ex. D-3) which clearly means that the respondent had not paid arrears of rent to Vijay Narayan Haksar the other brother either. It is noteworthy that the respondent had claimed to have paid such arrears once again to the appellant during the pendency of suit. On these facts it is abundantly clear that the respondent had executed rent note in favour of the appellant. He had been paying the rent all through out to the appellant up to 31-1-1972. Certainly, a civil suit for partition had been pending between the appellant and his brother Vijay Narayan Haksar but the same had been dismissed from both the Trial Court and High Court in First Appeal vide Ex. D-1. Certainly, some reference for suit shop had also been there in the judgment of the Trial Court. However, the respondent had not been a party to such a suit. His claim that the appellant had directed him to pay the rent to either of the brothers has not been believed by the Trial Court and for good reasons. Certainly, there had been civil suit pending between two brothers and to accept the contention in that situation that the appellant had agreed for payment of the rent to his brother is not possible.

11. It is well settled in view of Leela Soni v. Rajesh Goyal, 2002(1) M.P.H.T. 12 (SC) = 2002(1) JLJ 342, Deenanath v. Pooranlal, 2001(4) M.P.H.T. 203 (SC) = 2001 (2) JLJ 196, Kulwant Kaur v. Gurdial Singh Mann, AIR 2001 SC 1273. That this Court in exercise of its powers under Section 100 of the Code of Civil Procedure can certainly interfere in erroneous, perverse or arbitrary concurrent findings of the facts also. Thus, this Court finds it a fit case for interference in the findings recorded by the Courts below and holding that the appellant had been able to prove that the respondent has disclaimed his title and thus, he was liable to be vacated from the suit shop. Hence, this second appeal is allowed. Suit of the appellant is hereby decreed. Respondent shall hand over vacant possession of the suit shop to the appellant within two months of this order. Decreed accordingly.