Vasudev and Another. Vs. Aniruddha GuptA. - Court Judgment

Excerpt:
order 9 rule 13, order 37 rule 4 & section 115: [b.n. agrawal & g.s. singhvi, jj] ex parte decree in summary suit - set aside by trial court - interference by high court in revision - high court had not even recorded any finding on this issue - order of trial court setting aside ex parte decree not suffering from any error of jurisdiction or material irregularity in exercise of jurisdiction - held, high court was not justified in interfering with the same. order of trial court restored for disposal of the summary suit afresh in accordance with law. 1. the appellants/defendants, have directed this appeal under section 100 of the cpc, being aggrieved by the judgment and decree dated 31.1.07 passed by addl. district judge, burhanpur in civil regular appeal no.16-a/05, affirming the judgment and decree dated 29.10.05 passed by ii civil judge class-ii, burhanpur in civil original suit no.52-a/2001, till the extent of decreeing the suit of the respondents for eviction under section 12(1)(c) of the m.p. accommodation control act, 1961 and dismissing the counter claim of the appellants for damages. while the decree of the trial court given under section 12(1)(a) of the act has been set aside by the appellate court.2. it is undisputed fact of the case that plot no.159/2 situated at block no.36 at shastri chowk ward, burhanpur is a property belonging to appellant no.2 vidya bai. while the adjoining plot and premises described in the plaint and also marked as a.b.c.d.f in a map annexed with such plaint, was of the property of the predecessor in title of the respondents plaintiffs. the disputed premises was initially belonging to one sunderlal s/o thakur das and his cousin shri chhotelal s/o bansilal. shri ranchor das, the father of respondent/plaintiff no.1 and late pradumn, the father of respondent/plaintiff no.2 to 5 was the cousin brother of said sunder lal and chhotelal and they had their joint family. shri sunder lal and chhotelal had died on 10.12.72 and 1.4.1980 respectively. one jiyal das, the predecessor of the appellants/defendants, was the monthly tenant of said sunderlal and chhotelal in the aforesaid disputed accommodation for non-residential purpose at the rate of rs.30/- per month and the tenancy month was between 6 to 5 of the month according to the gregorian calender. the rent of the premises was always received by chhotelal from jiyal das.3. subsequent to death of chhotelal, the respondent/plaintiff no.1 vasudeo was receiving the rent of such accommodation from jiyal das and after demise of jiyal das, he was receiving the rent from appellant/defendant no.1. there was no partition wall between the aforesaid tenanted premises and the premises owned by appellant/ no.2/plaintiff. aforesaid both the premises, being in occupation of said jiyal das, he was using the same for his business purpose and after his demise, the same are being used by the appellants for their business of kulfi. in the year 2000, the appellants herein, as plaintiffs, filed the suit in the court of iii civil judge, class-ii as civil original suit no.109-a/2000 against the respondents impleading them as defendants in such suit for perpetual injunction contending that the appellant no.2, being title holder of the disputed premises they are in possession of the same and the respondents herein are creating obstruction in their possession. in such premises, prayer for restraining the respondents to interfere in their possession was made. in such suit, an interlocutory application for issuing the ad-interim injunction was also filed with the same averments. in such suit, the disputed property was described in the plaint and shown in the annexed map with such plaint.4. the respondents/plaintiffs filed the instant suit for eviction against the appellants/defendants in which besides the aforesaid undisputed facts, it is stated that the premises described in the plaint and shown as a.b.c.d.e.f in the map annexed with the plaint is belonging to them as owner of the same. the aforesaid open land along with situated house was initially belonging to sunder lal and his cousin brother chhotelal and they were in possession of the same. ranchor das, the father of respondent no.1 and late pradumn, the father of respondent no.2 to 5 being cousin brothers of said sunder lal and chhotelal, they had their joint family. sunder lal had bequeathed his other properties along with his share in the aforesaid property by virtue of the aforesaid will dated 26.8.68 in favour of respondents no.2 to 4 and by supplementary will (codicil) dated 17.4.1970 in addition to respondent no.5 manish also. by virtue of such will, on the death of sunderlal, respondents no.2 to 5 have acquired the title in such property and since then, they being owner of the same, are in possession. their names were also mutated in the nazul record with the name of chhotelal. chhotelal also executed a will dated 2.10.78 as stated above and bequeathed his property along with his share in the disputed property to respondent no.1/plaintiff anirudh gupta. on his death, his share of the disputed premises was acquired by respondent no.1. it is also stated that sunder lal and chhote lal died issueless. their wives had died in their life time, hence except the respondents there is no any other person to inherit such property. subsequent to death of chhotelal, said jiyal das, recognized the respondents as his landlord and was paying the rent. in the year 1990, after death of jiyal das, appellant/ defendant no.1, was paying the rent of such accommodation to the respondents and accordingly, the relationship of the landlord and tenant was established between them. the receipt of the rent was also obtained by jiyal das and thereafter by appellant no.1. in the year 2000, the respondents herein, after demolishing the aforesaid house wanted to reconstruct the same for which some part of the disputed premises was required by them, on which, the respondents gave a notice dated 16.9.2000 (ex.p/19) to the appellants. instead to comply the notice, the appellants replied (ex.p/25) the same stating that the disputed premises is the property of appellant no.2 and under such right they are in occupation and possession. they also denied to remove their goods from such place. accordingly, the appellants denied the title of the respondents. again, a notice (ex.p/26) was given on behalf of the respondents to vacate the premises for their construction. in reply (ex.p/33), the same was replied in the aforesaid manner and the title of the respondents was denied. subsequent to that, the appellants filed above mentioned civil suit no.109-a/2000 (ex.p/34) in the court of iii civil judge, class-ii burhanpur against the respondents for perpetual injunction restraining them to interfere in their title and possession of the disputed premises. in such suit, an application (ex.p/35) for ad-interim injunction was also filed with the same averments.5. by the time the contractual rent of the disputed accommodation raised to rs.200/- per month and besides the rent, the appellants were also bound to pay the water tax to the local authority. according to the respondents/plaintiffs, by denying their title, the appellants have caused substantial injury to their interest in the aforesaid property. simultaneously, the appellants being defaulter in payment of the rent, did not pay the rent from 6.8.98 and, in such premises, rs.6000/-, the rent of thirty months was outstanding. the same was not paid even after making demand. with these pleadings, the suit for eviction on the ground available under section 12(1)(a) and (c ) of the act is filed.6. in the written statement of the respondents, beside the aforesaid undisputed facts, the relationship of the respondents with sunder lal and chhotelal as stated by them and existence of their joint hindu family was denied. the execution of the testamentary document the will, executed by sunder lal and chhotelal are also denied. it is also stated that initially such accommodation was taken on tenancy at the rate of rs.30/- per month by jiyal das from one navneet lal munshi, accordingly, the initial tenancy was between navneet lal munshi and jiyal das. in further averments, it is stated that respondent no.1 anirudh gupta is receiving the rent as landlord from appellant no.1. the respondents had never given any intimation to them about acquisition of their title over the property and if the respondents are owner of the property then the appellants did not have any objection in accepting them to be the landlord. in further averments, it is stated that respondents herein by creating some obstruction in their possession tried to damage the premises in which they also sustained some loss of their business goods. the matter was reported to the police but not avail, on which, under compulsion, the aforesaid suit for perpetual injunction was filed by them. the same is still pending in the court of ii civil judge class ii burhanpur as cos no.17-a/01. in order to save to pay the compensation of the aforesaid loss to them and with some ulterior moto, the respondents before filing the suit, gave them the notice stating themselves to be the legal representatives of the above mentioned deceased landlords. in such premises or in any case, even on denying the derivative title of the respondents by the appellant with respect of the aforesaid property, the same did not give any right to the respondents for getting the decree on the ground of disclaimer of their title by the appellants. in continuation it is also stated that after receiving the rent, the receipt of the same was given by the respondent no.1 but on any receipt respondent no.1 has not stated himself or other respondents to be the landlord or the owner of such disputed house. in such premises, the respondents are estopped to say themselves to be the landlord of such premises. the title of the aforesaid property with respect of respondent no.1 is also denied stating that he is not the only successor of chhotelal. in such premises also, the ground of nuisance is not made out. as per further averments, no tenancy contract has taken place between the appellants and the respondents. it was also stated that the appellants are not the defaulter in payment of the regular rent. the same was regularly paid or even some time the same was paid in advance as per demand of the landlord. with these pleadings, by making the prayer for dismissal of the suit, the counter claim of rs.9819/- for the aforesaid damages is filed.7. the rejoinder of such counter claim was filed by the respondents and the same was denied in toto and prayer for dismissal of the same is made.8. in view of the aforesaid pleadings of the parties, after framing the issues, their evidence was recorded, on appreciation of the same, the trial court by dismissing the counter claim of the appellants decreed the suit of the respondents for eviction on the grounds enumerated under section 12(1)(a) and (c )of the act, on which, the appellants filed the appeal challenging the aforesaid decree. on consideration, by allowing such appeal in part, the decree of the trial court passed under section 12(1)(a) was set aside while the same, for eviction on the ground under section 12(1)(c ) and, regarding dismissal of the counter claim, was affirmed, on which, the appellants/defendants have come forward to this court with this appeal.9. shri avinash zargar, learned counsel of the appellants by referring the facts of the case and after taking me through the evidence and exhibited documents said that although after death of chhotelal, the rent was paid by jiyal das, the predecessor of the appellants, to the respondent no.1 but the relationship of the landlord and tenant has not been established between them at any point of time. no documentation has taken place in that regard between the parties and, in such premises, the title of the respondents being derivative title , unless proper attornment of such tenancy in favour of the respondents is proved, the appellants had a right to challenge the same and as per settled legal position, such ground, the denial of title in such a manner by the appellants, could not be termed to be a ground of disclaimer of title. he also said that the appellants have not committed any act contrary to the title or the interest of the respondents/plaintiffs. they have not caused any substantial injury to the title of the respondents as landlord of the disputed premises. in continuation, he said that although some averments regarding denial of title was stated in the written statement of the appellants at the initial stage when the same was filed but subsequently, such mistake was rectified by way of amendment in the written statement and after such amendment, the same had gone to relate back from the date of filing the written statement and, in such premises, the impugned decree on the ground of 12(1)(c ) ought not have been passed by the courts below. in continuation he said that in any case, in the available circumstances, in the present suit, the courts below committed error in passing the decree on the aforesaid ground taking into consideration the pleadings, conduct of the parties and circumstances of the earlier suit which was filed on behalf of the appellants for perpetual injunction and placed his reliance on the decision of the apex court in the matter of d. satyanarayana v. p. jagadish- (1987) 4 scc 424 in this regard. he also argued that inspite depositing or paying the entire arrears of the rent, even after setting aside the decree on the ground of section 12(1)(a) holding that demand notice was not given prior to filing the suit, the appellants have been held in arrears of rs.6000/- towards rent contrary to the record and the available evidence and prayed for admission of this appeal on the proposed substantial questions of law mentioned in para-9 of the appeal memo.10. having heard the counsel at length, i have carefully examined the record of the courts below and also perused the impugned judgment. on appreciation of the evidence both the courts below have held existence of the relationship between the parties as tenant and landlord of the disputed accommodation. in the written statement of the instant case the alleged tenancy is accepted as well as in the deposition of vasudeo appellant no.1 filed under order 18 rule 4 of the cpc in para-5 of it, he categorically stated that initially the disputed accommodation was taken on tenancy by his father from one navneet lal and such disputed property was purchased by sunder lal and chhotelal through registered sale deed dated 6.6.1966, on which, his father became the tenant of such purchasers at the rate of rs.30/- per month. subsequent to death of chhotelal, his father started paying rent at the rate of rs.50/- per month to respondent no.1 anirudh gupta. the same was further enhanced at the rate of rs.125/- per month and ultimately it had become at the rate of rs.200/- per month. he also stated that after demise of his father, he and his mother appellant no.2, inherited the tenancy right of jiyaldas as his successor in such disputed premises and he started paying the rent of such accommodation to respondent no.1 anirudh gupta. as per further submission, at some time, some money was also demanded by anirudh gupta on loan and subsequently the same was adjusted in the sum of rent. in view of such admission of the respondents that his father started to pay the rent firstly to chhotelal and thereafter to respondent no.1 anirudh gupta and even after death of his father he and his mother, being tenants are paying the rent to respondent no.1 anirudh gupta, is sufficient to draw the inference that the relationship of the tenant and landlord between the parties had been established long back and as per settled legal proposition once after accepting the landlordship of respondent no.1 or the respondents, if appellants being tenants started to pay the rent and paid the rent to him/ them then subsequently, at any stage, either jiyaldas or after him the appellants did not have any right to challenge the title of the property in any manner contrary to the rights of the respondents. as such they were estopped to challenge the same under section 116 of the evidence act. in such premises when the tenancy was admitted by the predecessor of the appellants and after him the appellants then they did not have any authority to challenge the same saying that the respondents being owner under the derivative title, have right to challenge the same. it is settled proposition of the law that the concurrent findings of the courts below holding relationship as landlord and tenant between the parties, being findings of fact, could not be interfered under section 100 of the cpc at the stage of second appeal as laid down by the apex court in the matter of kalyan sing v. ramswaroop -1996 jlj-247 (sc) in which it was held as under :- "3. the contention of the learned counsel for the appellant is that it was not established that the appellant was a tenant of smt. gyasibai and that he was a tenant of the two sons. we are afraid this contention cannot be accepted in view of the findings of the two courts below and such finding of fact is not open to challenge before this court in appeal under article 136 of the constitution.".such view is further followed by this court in the matter of machala bai v. nanak ram-2006(2) mplj-484.11. in view of the aforesaid, now i proceed to consider the arguments advanced by the appellants counsel for admission of this appeal. it is apparent fact that respondent no.1 gave a notice dated 16.9.2000 (ex.p/19) to the appellant no.1 to cooperate him in making his new construction on the remaining part of such property/premises. the same was replied on behalf of the appellant no.1 vide dated 18.9.2000 (ex.p/25) in which he denied the landlordship of respondent no.1 saying such property to be a property of appellant no.2. subsequent to it, again on giving the notice by respondent no. to appellant no.1 dated 18.9.2000 (ex.p/26). by giving its reply dated 19.9.2000 (ex.p/33) again the title and landlordship of the respondent with respect of the tenanted premises was denied. thereafter on dated 23.9.2000, appellants herein filed the civil original suit no.109-a/2000 against the respondents in the court of iii civil judge class ii burhanpur (ex.p/34) for perpetual injunction restraining the respondents to cause any injury or interfering in their possession of the disputed premises. according to the pleadings of such suit, the appellants stated themselves to be in possession of such premises as owner of such property. the interlocutory application is also filed with the same averments. the courts below concurrently, taking into consideration the aforesaid documents and the admission of the appellant no.1 in his deposition, after holding that appellants by denying the landlordship and the title of the respondents with respect of the disputed property and thereby caused substantial injury to their vested rights in the same, passed the impugned decree on the ground of nuisance the disclaimer of title under section 12(1)(c ) of the act.12. in view of the aforesaid, it is apparent that the approach of both the courts below on the aforesaid question is based on appreciation of the evidence and as per settled proposition of the law that concurrent findings based on appreciation of the evidence, howsoever erroneous, being findings of fact could not be interfered, under section 100 of the cpc at this stage of second appeal as laid down by the apex court in the matter of kondiba dagadu kadam v. savitri bai sopan gurjar-air 1999 sc 2213 in which it was held as under :- "the right of appeal is neither a natural nor an inherent right attached to the litigation. being a substantive statutory right, it has to be regulated in accordance with law in force at the relavant time. the conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has to power to add to or enlarge those grounds. the second appeal cannot be decided on merely equitable grounds. the concurrent findings of facts howsoever erroneous, cannot be disturbed by the high court in exercise of the powers under this section. the substantial question of law has to be distinguished from a substantial question of fact." apart the above, in view of the law laid down by the apex court in the matter of sheela and others v. firm prahlad rai prem prakash-2002(2) jlj 312 and decision of this court in the matter of narendra kumar v. madanmohan -2001(2) mplj-161 and in the matter of meenamal v. madanmohan agrawal-2005(2) mplj 583, this appeal does not give rise to any question of law, muchless, the substantial question of law.13. apart the above, the decision of this court in the matter of bhagwati prasad v. rameshchand and others -1994 mplj 619 in which it was held that withdrawal of the pleadings cannot save the person once the title is denied and it is proved then the decree wold be passed on the ground of disclaimer of the title, this appeal is not giving rise to any question of law muchless the substantial question of law.14. so far the case law in the matter of d.satyanarayana v. p. jagdish (1987) 4 scc 424 cited on behalf of the appellants is concerned, the same is not helping to the appellants in the present facts and circumstances of the case. such case was decided taking into consideration that the sub tenant contracted and created the tenancy with the principal landlord under the some threat and compelling circumstances and denied the title of the principal tenant which is not the situation here in the case at hand. in the present matter no such question is involved. in the present matter, in view of the aforesaid discussion, the relationship as tenant and landlrod of the parties have been found to be proved on their admission and the conduct.15. therefore, in view of the aforesaid discussion, in the lack of any circumstance involving any substantial question of law, this appeal deserves to be and is hereby dismissed at the stage of motion hearing. there shall be no order as to the cost.16. however taking into consideration that the appellants are in possession of the disputed accommodation since long, therefore, it would not be possible for them 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, if any, and on furnishing appropriate surety to the satisfaction of the trial court within thirty days from today along with an undertaking that the appellants shall vacate the disputed premises and hand-over its peaceful possession to the decree holder/ respondents on or before 31.01.2011, then subject to payment of regular monthly mesne profit of the disputed accommodation at the rate of the monthly rent as held by the courts below within 15 days from the end of every tenancy month, the appellants are extended the time to vacate the premises up to 31.1.2011. 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.17. the appeal is dismissed as indicated above.

Judgment:
1. The appellants/defendants, have directed this appeal under section 100 of the CPC, being aggrieved by the judgment and decree dated 31.1.07 passed by Addl. District Judge, Burhanpur in Civil Regular Appeal No.16-A/05, affirming the judgment and decree dated 29.10.05 passed by II Civil Judge Class-II, Burhanpur in Civil Original Suit No.52-A/2001, till the extent of decreeing the suit of the respondents for eviction under section 12(1)(c) of the M.P. Accommodation Control Act, 1961 and dismissing the counter claim of the appellants for damages. While the decree of the trial court given under section 12(1)(a) of the Act has been set aside by the appellate court.

2. It is undisputed fact of the case that Plot No.159/2 situated at Block No.36 at Shastri Chowk ward, Burhanpur is a property belonging to appellant No.2 Vidya Bai. While the adjoining plot and premises described in the plaint and also marked as A.B.C.D.F in a map annexed with such plaint, was of the property of the predecessor in title of the respondents plaintiffs. The disputed premises was initially belonging to one Sunderlal S/o Thakur Das and his cousin Shri Chhotelal S/o Bansilal. Shri Ranchor Das, the father of respondent/plaintiff No.1 and Late Pradumn, the father of respondent/plaintiff No.2 to 5 was the cousin brother of said Sunder Lal and Chhotelal and they had their joint family. Shri Sunder Lal and Chhotelal had died on 10.12.72 and 1.4.1980 respectively. One Jiyal Das, the predecessor of the appellants/defendants, was the monthly tenant of said Sunderlal and Chhotelal in the aforesaid disputed accommodation for non-residential purpose at the rate of Rs.30/- per month and the tenancy month was between 6 to 5 of the month according to the Gregorian calender. The rent of the premises was always received by Chhotelal from Jiyal Das.

3. Subsequent to death of Chhotelal, the respondent/plaintiff No.1 Vasudeo was receiving the rent of such accommodation from Jiyal Das and after demise of Jiyal Das, he was receiving the rent from appellant/defendant No.1. There was no partition wall between the aforesaid tenanted premises and the premises owned by appellant/ No.2/plaintiff. Aforesaid both the premises, being in occupation of said Jiyal Das, he was using the same for his business purpose and after his demise, the same are being used by the appellants for their business of Kulfi. In the year 2000, the appellants herein, as plaintiffs, filed the suit in the Court of III Civil Judge, Class-II as Civil Original Suit No.109-A/2000 against the respondents impleading them as defendants in such suit for perpetual injunction contending that the appellant No.2, being title holder of the disputed premises they are in possession of the same and the respondents herein are creating obstruction in their possession. In such premises, prayer for restraining the respondents to interfere in their possession was made. In such suit, an interlocutory application for issuing the ad-interim injunction was also filed with the same averments. In such suit, the disputed property was described in the plaint and shown in the annexed map with such plaint.

4. The respondents/plaintiffs filed the instant suit for eviction against the appellants/defendants in which besides the aforesaid undisputed facts, it is stated that the premises described in the plaint and shown as A.B.C.D.E.F in the map annexed with the plaint is belonging to them as owner of the same. The aforesaid open land along with situated house was initially belonging to Sunder Lal and his cousin brother Chhotelal and they were in possession of the same. Ranchor Das, the father of respondent No.1 and Late Pradumn, the father of respondent No.2 to 5 being cousin brothers of said Sunder Lal and Chhotelal, they had their joint family. Sunder Lal had bequeathed his other properties along with his share in the aforesaid property by virtue of the aforesaid Will dated 26.8.68 in favour of respondents No.2 to 4 and by supplementary Will (codicil) dated 17.4.1970 in addition to respondent No.5 Manish also. By virtue of such Will, on the death of Sunderlal, respondents No.2 to 5 have acquired the title in such property and since then, they being owner of the same, are in possession. Their names were also mutated in the Nazul record with the name of Chhotelal. Chhotelal also executed a Will dated 2.10.78 as stated above and bequeathed his property along with his share in the disputed property to respondent No.1/plaintiff Anirudh Gupta. On his death, his share of the disputed premises was acquired by respondent No.1. It is also stated that Sunder Lal and Chhote Lal died issueless. Their wives had died in their life time, hence except the respondents there is no any other person to inherit such property. Subsequent to death of Chhotelal, said Jiyal Das, recognized the respondents as his landlord and was paying the rent. In the year 1990, after death of Jiyal Das, appellant/ defendant No.1, was paying the rent of such accommodation to the respondents and accordingly, the relationship of the landlord and tenant was established between them. The receipt of the rent was also obtained by Jiyal Das and thereafter by appellant No.1. In the year 2000, the respondents herein, after demolishing the aforesaid house wanted to reconstruct the same for which some part of the disputed premises was required by them, on which, the respondents gave a notice dated 16.9.2000 (Ex.P/19) to the appellants. Instead to comply the notice, the appellants replied (Ex.P/25) the same stating that the disputed premises is the property of appellant No.2 and under such right they are in occupation and possession. They also denied to remove their goods from such place. Accordingly, the appellants denied the title of the respondents. Again, a notice (Ex.P/26) was given on behalf of the respondents to vacate the premises for their construction. In reply (Ex.P/33), the same was replied in the aforesaid manner and the title of the respondents was denied. Subsequent to that, the appellants filed above mentioned civil suit No.109-A/2000 (Ex.P/34) in the court of III Civil Judge, Class-II Burhanpur against the respondents for perpetual injunction restraining them to interfere in their title and possession of the disputed premises. In such suit, an application (Ex.P/35) for ad-interim injunction was also filed with the same averments.

5. By the time the contractual rent of the disputed accommodation raised to Rs.200/- per month and besides the rent, the appellants were also bound to pay the water tax to the local authority. According to the respondents/plaintiffs, by denying their title, the appellants have caused substantial injury to their interest in the aforesaid property. Simultaneously, the appellants being defaulter in payment of the rent, did not pay the rent from 6.8.98 and, in such premises, Rs.6000/-, the rent of thirty months was outstanding. The same was not paid even after making demand. With these pleadings, the suit for eviction on the ground available under section 12(1)(a) and (c ) of the Act is filed.

6. In the written statement of the respondents, beside the aforesaid undisputed facts, the relationship of the respondents with Sunder Lal and Chhotelal as stated by them and existence of their joint hindu family was denied. The execution of the testamentary document the Will, executed by Sunder Lal and Chhotelal are also denied. It is also stated that initially such accommodation was taken on tenancy at the rate of Rs.30/- per month by Jiyal Das from one Navneet Lal Munshi, accordingly, the initial tenancy was between Navneet Lal Munshi and Jiyal Das. In further averments, it is stated that respondent No.1 Anirudh Gupta is receiving the rent as landlord from appellant No.1. The respondents had never given any intimation to them about acquisition of their title over the property and if the respondents are owner of the property then the appellants did not have any objection in accepting them to be the landlord. In further averments, it is stated that respondents herein by creating some obstruction in their possession tried to damage the premises in which they also sustained some loss of their business goods. The matter was reported to the police but not avail, on which, under compulsion, the aforesaid suit for perpetual injunction was filed by them. The same is still pending in the Court of II Civil Judge Class II Burhanpur as COS No.17-A/01. In order to save to pay the compensation of the aforesaid loss to them and with some ulterior moto, the respondents before filing the suit, gave them the notice stating themselves to be the legal representatives of the above mentioned deceased landlords. In such premises or in any case, even on denying the derivative title of the respondents by the appellant with respect of the aforesaid property, the same did not give any right to the respondents for getting the decree on the ground of disclaimer of their title by the appellants. In continuation it is also stated that after receiving the rent, the receipt of the same was given by the respondent No.1 but on any receipt respondent No.1 has not stated himself or other respondents to be the landlord or the owner of such disputed house. In such premises, the respondents are estopped to say themselves to be the landlord of such premises. The title of the aforesaid property with respect of respondent No.1 is also denied stating that he is not the only successor of Chhotelal. In such premises also, the ground of nuisance is not made out. As per further averments, no tenancy contract has taken place between the appellants and the respondents. It was also stated that the appellants are not the defaulter in payment of the regular rent. The same was regularly paid or even some time the same was paid in advance as per demand of the landlord. With these pleadings, by making the prayer for dismissal of the suit, the counter claim of Rs.9819/- for the aforesaid damages is filed.

7. The rejoinder of such counter claim was filed by the respondents and the same was denied in toto and prayer for dismissal of the same is made.

8. In view of the aforesaid pleadings of the parties, after framing the issues, their evidence was recorded, on appreciation of the same, the trial court by dismissing the counter claim of the appellants decreed the suit of the respondents for eviction on the grounds enumerated under section 12(1)(a) and (c )of the Act, on which, the appellants filed the appeal challenging the aforesaid decree. On consideration, by allowing such appeal in part, the decree of the trial court passed under section 12(1)(a) was set aside while the same, for eviction on the ground under section 12(1)(c ) and, regarding dismissal of the counter claim, was affirmed, on which, the appellants/defendants have come forward to this court with this appeal.

9. Shri Avinash Zargar, learned counsel of the appellants by referring the facts of the case and after taking me through the evidence and exhibited documents said that although after death of Chhotelal, the rent was paid by Jiyal Das, the predecessor of the appellants, to the respondent No.1 but the relationship of the landlord and tenant has not been established between them at any point of time. No documentation has taken place in that regard between the parties and, in such premises, the title of the respondents being derivative title , unless proper attornment of such tenancy in favour of the respondents is proved, the appellants had a right to challenge the same and as per settled legal position, such ground, the denial of title in such a manner by the appellants, could not be termed to be a ground of disclaimer of title. He also said that the appellants have not committed any act contrary to the title or the interest of the respondents/plaintiffs. They have not caused any substantial injury to the title of the respondents as landlord of the disputed premises. In continuation, he said that although some averments regarding denial of title was stated in the written statement of the appellants at the initial stage when the same was filed but subsequently, such mistake was rectified by way of amendment in the written statement and after such amendment, the same had gone to relate back from the date of filing the written statement and, in such premises, the impugned decree on the ground of 12(1)(c ) ought not have been passed by the courts below. In continuation he said that in any case, in the available circumstances, in the present suit, the courts below committed error in passing the decree on the aforesaid ground taking into consideration the pleadings, conduct of the parties and circumstances of the earlier suit which was filed on behalf of the appellants for perpetual injunction and placed his reliance on the decision of the Apex Court in the matter of D. Satyanarayana v. P. Jagadish- (1987) 4 SCC 424 in this regard. He also argued that inspite depositing or paying the entire arrears of the rent, even after setting aside the decree on the ground of section 12(1)(a) holding that demand notice was not given prior to filing the suit, the appellants have been held in arrears of Rs.6000/- towards rent contrary to the record and the available evidence and prayed for admission of this appeal on the proposed substantial questions of law mentioned in para-9 of the appeal memo.

10. Having heard the counsel at length, I have carefully examined the record of the courts below and also perused the impugned judgment. On appreciation of the evidence both the courts below have held existence of the relationship between the parties as tenant and landlord of the disputed accommodation. In the written statement of the instant case the alleged tenancy is accepted as well as in the deposition of Vasudeo appellant No.1 filed under order 18 rule 4 of the CPC in para-5 of it, he categorically stated that initially the disputed accommodation was taken on tenancy by his father from one Navneet Lal and such disputed property was purchased by Sunder Lal and Chhotelal through registered sale deed dated 6.6.1966, on which, his father became the tenant of such purchasers at the rate of Rs.30/- per month. Subsequent to death of Chhotelal, his father started paying rent at the rate of Rs.50/- per month to respondent No.1 Anirudh Gupta. The same was further enhanced at the rate of Rs.125/- per month and ultimately it had become at the rate of Rs.200/- per month. He also stated that after demise of his father, he and his mother appellant No.2, inherited the tenancy right of Jiyaldas as his successor in such disputed premises and he started paying the rent of such accommodation to respondent No.1 Anirudh Gupta. As per further submission, at some time, some money was also demanded by Anirudh Gupta on loan and subsequently the same was adjusted in the sum of rent. In view of such admission of the respondents that his father started to pay the rent firstly to Chhotelal and thereafter to respondent No.1 Anirudh Gupta and even after death of his father he and his mother, being tenants are paying the rent to respondent No.1 Anirudh Gupta, is sufficient to draw the inference that the relationship of the tenant and landlord between the parties had been established long back and as per settled legal proposition once after accepting the landlordship of respondent No.1 or the respondents, if appellants being tenants started to pay the rent and paid the rent to him/ them then subsequently, at any stage, either Jiyaldas or after him the appellants did not have any right to challenge the title of the property in any manner contrary to the rights of the respondents. As such they were estopped to challenge the same under section 116 of the Evidence Act. In such premises when the tenancy was admitted by the predecessor of the appellants and after him the appellants then they did not have any authority to challenge the same saying that the respondents being owner under the derivative title, have right to challenge the same. It is settled proposition of the law that the concurrent findings of the courts below holding relationship as landlord and tenant between the parties, being findings of fact, could not be interfered under section 100 of the CPC at the stage of second appeal as laid down by the Apex Court in the matter of Kalyan Sing v. Ramswaroop -1996 JLJ-247 (SC) in which it was held as under :-

"3. The contention of the learned counsel for the appellant is that it was not established that the appellant was a tenant of Smt. Gyasibai and that he was a tenant of the two sons. We are afraid this contention cannot be accepted in view of the findings of the two courts below and such finding of fact is not open to challenge before this court in appeal under Article 136 of the Constitution.".

Such view is further followed by this court in the matter of Machala Bai v. Nanak Ram-2006(2) MPLJ-484.

11. In view of the aforesaid, now I proceed to consider the arguments advanced by the appellants counsel for admission of this appeal. It is apparent fact that respondent No.1 gave a notice dated 16.9.2000 (Ex.P/19) to the appellant No.1 to cooperate him in making his new construction on the remaining part of such property/premises. The same was replied on behalf of the appellant No.1 vide dated 18.9.2000 (Ex.P/25) in which he denied the landlordship of respondent No.1 saying such property to be a property of appellant No.2. Subsequent to it, again on giving the notice by respondent No. to appellant No.1 dated 18.9.2000 (Ex.P/26). By giving its reply dated 19.9.2000 (Ex.P/33) again the title and landlordship of the respondent with respect of the tenanted premises was denied. Thereafter on dated 23.9.2000, appellants herein filed the Civil Original Suit No.109-A/2000 against the respondents in the court of III Civil Judge Class II Burhanpur (Ex.P/34) for perpetual injunction restraining the respondents to cause any injury or interfering in their possession of the disputed premises. According to the pleadings of such suit, the appellants stated themselves to be in possession of such premises as owner of such property. The interlocutory application is also filed with the same averments. The courts below concurrently, taking into consideration the aforesaid documents and the admission of the appellant No.1 in his deposition, after holding that appellants by denying the landlordship and the title of the respondents with respect of the disputed property and thereby caused substantial injury to their vested rights in the same, passed the impugned decree on the ground of nuisance the disclaimer of title under section 12(1)(c ) of the Act.

12. In view of the aforesaid, it is apparent that the approach of both the courts below on the aforesaid question is based on appreciation of the evidence and as per settled proposition of the law that concurrent findings based on appreciation of the evidence, howsoever erroneous, being findings of fact could not be interfered, under section 100 of the CPC at this stage of second appeal as laid down by the Apex Court in the matter of Kondiba Dagadu Kadam v. Savitri Bai Sopan Gurjar-AIR 1999 SC 2213 in which it was held as under :-

"The right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relavant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no Court has to power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous, cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact."

Apart the above, in view of the law laid down by the Apex Court in the matter of Sheela and others v. Firm Prahlad Rai Prem Prakash-2002(2) JLJ 312 and decision of this court in the matter of Narendra Kumar v. Madanmohan -2001(2) MPLJ-161 and in the matter of Meenamal v. Madanmohan Agrawal-2005(2) MPLJ 583, this appeal does not give rise to any question of law, muchless, the substantial question of law.

13. Apart the above, the decision of this court in the matter of Bhagwati Prasad v. Rameshchand and others -1994 MPLJ 619 in which it was held that withdrawal of the pleadings cannot save the person once the title is denied and it is proved then the decree wold be passed on the ground of disclaimer of the title, this appeal is not giving rise to any question of law muchless the substantial question of law.

14. So far the case law in the matter of D.Satyanarayana v. P. Jagdish (1987) 4 SCC 424 cited on behalf of the appellants is concerned, the same is not helping to the appellants in the present facts and circumstances of the case. Such case was decided taking into consideration that the sub tenant contracted and created the tenancy with the principal landlord under the some threat and compelling circumstances and denied the title of the principal tenant which is not the situation here in the case at hand. In the present matter no such question is involved. In the present matter, in view of the aforesaid discussion, the relationship as tenant and landlrod of the parties have been found to be proved on their admission and the conduct.

15. Therefore, in view of the aforesaid discussion, in the lack of any circumstance involving any substantial question of law, this appeal deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to the cost.

16. However taking into consideration that the appellants are in possession of the disputed accommodation since long, therefore, it would not be possible for them 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, if any, and on furnishing appropriate surety to the satisfaction of the trial court within thirty days from today along with an undertaking that the appellants shall vacate the disputed premises and hand-over its peaceful possession to the decree holder/ respondents on or before 31.01.2011, then subject to payment of regular monthly mesne profit of the disputed accommodation at the rate of the monthly rent as held by the courts below within 15 days from the end of every tenancy month, the appellants are extended the time to vacate the premises up to 31.1.2011. 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.

17. The appeal is dismissed as indicated above.