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Habbu and anr. Vs. Mohammad Hasan and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 35 of 1982
Judge
Reported inAIR1984MP133; 1985MPLJ5
ActsMadhya Pradesh Accommodation Control Act, 1955 - Sections 12(1)
AppellantHabbu and anr.
RespondentMohammad Hasan and anr.
Appellant AdvocateA.K. Chitale, Adv.
Respondent AdvocateS.R. Verma, Adv.
DispositionAppeal allowed
Excerpt:
- - 2 failed to pay the arrears of rent within two months of the service of notice of demand upon him. 1 for the period january, 1973 10 may, 1973 and dismissed the plaintiff's suit for eviction, 5. on appeal by the plaintiff the appellate court upheld the finding recorded by the trial court that the plaintiff failed to prove that he required the tenanted accommodation for starting his business. 1 failed to pay the arrears of rent within two months from the service of notice of demand upon him. 11. the appellate court failed to notice that the plaintiff admitted that he never gave any receipts for the rent recovered by him......the defendants on the ground that the defendant no. 1 was his tenant and he unlawfully sublet the tenant accommodation to the defendants nos. 2 and 3 is not made out and the dercee of eviction passed by the appellate court on that ground deserves to be set aside.16. the decree for eviction on the ground of non-payment of arrears of rent within two months of the service of demand notice also cannot be sustained because admittedly no notice was given by the plaintiff to the defendant no. 2 demanding arrears of rent from him. thus, the appellate court was not justified in passing a decree for eviction against the defendants nos. 2 and 3 and the judgment and decree passed by the appellate court deserve to be set aside and those of the trial court deserve to be restored.17. as a result of.....
Judgment:

R.K. Vijayvargiya, J.

1. This appeal by the defendants Nos. 2 and 3 is directed against the judgment and decree dated 12-11-1981 passed by the 9th Additional District Judge, Indore, in Civil Appeal No. 4-A of 1980, arising out of the judgment and decree dated 22-11-1979 passed by the III Civil Judge Class II, Indore, in Civil Suit No. 45-A of 1976.

2. The material facts giving rise to this appeal are as follows: The plaintiff-respondent No. 1 filed the present suit for eviction of the defendant No. 1 Mohammad Hussain and the appellants from the non-residential accommodation situate at 408, Mahatma Gandhi Marg, Indore on the grounds that the accommodation was let to the respondent No. 2 who unlawfully sublet the accommodation to the appellants and that the respondent No. 2 failed to pay the arrears of rent within two months of the service of notice of demand upon him. The plaintiff also claimed eviction on the ground that he required the tenanted ac-comodation for carrying on business of himself and members of his family and he has no other accommodation of his own available to him for that purpose in the city of Indore.

3. The defendants in their separate written statements resisted the suit. The appellants denied that the accommodation was let by the plaintiff to the respondent No. 2 and that he unlawfully sublet the accommodation to them. According to them the appellant No. 1 was the tenant of the plaintiff. The defendant No. 1 admitted that he was the tenant of the plaintiff but denied that he unlawfully sublet the tenanted accommodation to the appellants. The defendants also denied that the suit accommodation was required by the plaintiff for starting of business by the plaintiff and members of his family.

4. The trial court held that it was not proved that the defendant No. l was the tenant of the plaintiff and he unlawfully sublet the tenanted accommodation to the defendants Nos. 2 and 3. The trial court further held that it was not proved that the tenanted accommodation was required by the plaintiff for starting his business. The trial court also held that the plaintiff was not entitled to a decree for eviction on the ground of non-payment of arrears of rent under Section 12 (1) (a) of the M. P. Accommodation Control Act (for short 'the Act'). The trial court consequently passed a decree for rent against the appellant No. 1 for the period January, 1973 10 May, 1973 and dismissed the plaintiff's suit for eviction,

5. On appeal by the plaintiff the appellate court upheld the finding recorded by the trial court that the plaintiff failed to prove that he required the tenanted accommodation for starting his business. However, the appellate court reversed the finding recorded by the trial court on the other grounds and held that the tenanted accommodation was let by the plaintiff to the respondent No. 2 and he unlawfully sublet the tenanted accommodation to the defendants Nos. 2 and 3 and that the defendant No. 1 failed to pay the arrears of rent within two months from the service of notice of demand upon him. Consequently the appellate court decreed the plaintiff's suit for eviction on the grounds enumerated in Sections 12 (1) (a) and 12 (1) (b) of the Act. Aggrieved by the judgment and decree of the appellate court the defendants Nos. 2 and 3 have preferred this appeal.

6. The learned counsel for the appellants contended that the finding recorded by the appellate court that the tenanted accommodation was let by the plaintiff to the respondent No. 2 and he unlawfully sublet the same to the appellants, is vitiated on account of non-consideration of material evidence and admissions of the plaintiff and further on account of erroneous approach adopted by the appellate court. He contended that on the evidence on record it is proved that the tenanted accommodation was let to the appellant No. 1 and he is carrying on his business in the tenanted accommodation since the inception of the tenancy and the contrary finding recorded by the appellate court is not sustainable in law. He further contended that as the appellant No. 1 was the tenant and admittedly the plaintiff has not given any notice demanding arrears of rent from him, no decree for eviction under Section 12 (1) (a) of the Act could be passed.

The learned counsel for the respondent No. 1 plaintiff supported the judgment and decree passed by the appellate court.

7. The contention raised by the learned counsel for the appellants has force. The tenanted accommodation was let in or about the year 1965-66. The appellants are the sons of the wife of the defendant No. 1 from another husband. After the appellants' mother married the defendant No. 1 the appellants started living with him since their childhood. No rent note evidencing the creation of the tenancy is produced or proved. No rent receipts evidencing payment of rent by any of the defendants is produced or proved. The parties only led oral evidence to prove their respective case.

8. The plaintiff examined himself and stated that the accommodation was let by him to the defendant No. 1 and that he unlawfully sublet it to the defendants No. 2 and 3. The plaintiff examined War is AH (P. W. 2) to prove the fact that the accommodation was let to the defendant No. 1. Waris AH however, did not support the plaintiff. He stated that some other person had occupied the tenanted accommodation previously and that he does not know his name and that thereafter the defendant No. 2 started occupying the said accommodation. In cross-examination he stated that he is seeing the defendant No. 2 Habbu occupying the tenanted accommodation since 1965-66 and that the defendant No. 1 did not let the accommodation to the defendant No. 2, However, the appellate court has observed that Waris AH has supported the case of the plaintiff. This is obviously incorrect. That apart the appellate court has also not considered the material admissions made by the plaintiff in his testimony and he has approached the matter as if the burden to prove the fact that the defendant No. 2 was not the sub-tenant of the defendant No. 1 was on defendant No. 2.

9. In para 6 of his testimony the plaintiff admitted that the defendants Nos. 2 and 3 were, brought to the house of the defendant No. 1 from their childhood. He also admitted that in the record of assessment of the tenanted accommodation to the property tax the defendant No. 2 was shown as the tenant and that he did not raise any objection even when he knew that the defendant No. 2 was shown as his tenant. He further admitted that Habbu Electricwala was carrying on business in the tenanted accommodation since 1965-66 and that the defendant No. 1 had never carried on the business of the electrical goods. He also admitted that he asked his son Mohammad Chandu to learn the business of electrical goods in the shop 'Habbu Electricals'. The plaintiff further stated that Mohammad Hussain (Deft. No. 1) had executed a rent note in his favour but he did not produce it. He stated that the said rent note was taken away by the defendant No. 1 and he did not return it and therefore he was unable to produce it. The plaintiff also admitted that he did not pass receipts for the rent realised by him,

10. The appellate court has not at all considered the above statements of the plaintiff from which it goes to show that the defendant No. 2 was carrying on business in the tenanted accommodation since the inception of the tenancy. On the other hand the appellate court has, placing the burden on the defendant No. 2, held that as the defendant No, 2 has not produced the rent note or rent receipts his case that he was the tenant of the plaintiff cannot be accepted.

11. The appellate court failed to notice that the plaintiff admitted that he never gave any receipts for the rent recovered by him. As regards the rent note if it was executed it must have been in the possession of the plaintiff. According to the plaintiff the defendant No. 1 executed a rent note in his favour and if that was so the appellate court should have drawn an inference adverse to the plaintiff for its non-production.

12. The burden to prove the fact that the tenanted accommodation was let by the plaintiff to the defendant No. 1 and he unlawfully sublet the same to the defendants Nos. 2 and 3 was upon the plaintiff. If the plaintiff had proved that the tenanted accommodation was let by him to the defendant No, 1 then the burden would have shifted to the defendants Nos. 2 and 3 to prove the fact that they were in occupation of the premises not as subtenant of the defendant No. 1 but in different capacity as his near relations. However, in the present case as the defendant (plaintiff) has not proved the fact that' the tenanted accommodation was let by him to the defendant No. 1 the second question docs not arise for consideration.

13. The learned counsel for the plaintiff also placed reliance upon the statement of the defendant No. 1 to the effect that the tenanted accommodation was let by the plaintiff to him. However, from the testimony of the defendant No. 1 it is clear that he is mixed up with the plaintiff. Although in his written statement he denied that the tenanted accommodation was sublet by him to the defendants Nos. 2 and 3; In his statement he admitted that he had handed over possession of the tenanted accommodation to the defendants Nos. 2 and 3.

14. In my opinion, the appellate Court has misdirected itself in reversing the finding of the trial court that it was not proved that the tenanted accommodation was let by the plaintiff to the defendant No. 1 and he unlawfully sublet the accommodation to the defendants Nos. 2 and 3. The appellate court has not considered the material evidence on record and also the statement of the plaintiff which amounted to admission. In the circumstances the finding recorded by the' appellate court is vitiated. On the evidence on record as discussed above I have reached the conclusion that the trial court was fully justified in holding that it was not proved that the tenanted accommodation was let by the plaintiff to the defendant No. 1 and he unlawfully sublet it to the defendant Nos. 2 and 3. The trial court was fully justified in holding that the defendant No. 2 was the tenant of the plaintiff. The contrary finding recorded by the appellate court cannot be sustained in law and is set aside.

15. Thus, the plaintiff's claim for eviction of the defendants on the ground that the defendant No. 1 was his tenant and he unlawfully sublet the tenant accommodation to the defendants Nos. 2 and 3 is not made out and the dercee of eviction passed by the appellate court on that ground deserves to be set aside.

16. The decree for eviction on the ground of non-payment of arrears of rent within two months of the service of demand notice also cannot be sustained because admittedly no notice was given by the plaintiff to the defendant No. 2 demanding arrears of rent from him. Thus, the appellate court was not justified in passing a decree for eviction against the defendants Nos. 2 and 3 and the judgment and decree passed by the appellate court deserve to be set aside and those of the trial Court deserve to be restored.

17. As a result of the discussion aforesaid this appeal is allowed with costs. The judgment and decree passed by the appellate court arc set aside and those passed by the trial court are restored. Counsel's fee as per scale, if certified.


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