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Ziaul Hasan and ors. Vs. Pannalal Nanoomal Jain - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 132 of 1967
Judge
Reported inAIR1972MP209; 1972MPLJ91
ActsEvidence Act, 1872 - Sections 106
AppellantZiaul Hasan and ors.
RespondentPannalal Nanoomal Jain
Appellant AdvocateK.K. Dube, Adv.
Respondent AdvocateM.C. Nehlani and ;K.L. Issrani, Advs.
DispositionAppeal dismissed
Cases Referred and Rajaram v. Prahladdas.
Excerpt:
- - the first appellate court, however, found that both the grounds, namely, that of bone fide need as well as the ground of subletting were proved and hence decreed the plaintiff's suit for ejectment of the defendants. ) 6. shri dube, however, urged that even if the defendants failed to prove that they were tenants of the predecessor of the plaintiff ,and that they were continued to be the tenants under the new agreement, the burden was on the plaintiff to prove that they were sub-tenants of the defendants 1 to 3 and that they were not occupying the premises in an unauthorised manner. it was held by the lower appellate court that the plaintiff failed to prove that the defendant no......decree of the trial court for ejectment.2. the house in question, of which the defendants are the tenants, or subtenants, was purchased by the plaintiff-firm under a registered sale-deed dated 22-9-1959 from mulla mohsin ali, resident of bhopal. on the date of the purchase. zawar hussain (defendant no. 4) was in occupation of the house on a monthly rent of rs. 28/8/-. the plaintiff's case was that after the plaintiff-firm purchased the house, the lease in favour of the defendant no. 4 was determined by mutual settlement as a result of which the possession of the first floor of the house was given to the plaintiff-firm, while the premises in question, that is, the shop on the ground floor was leased out to the defendants 1 to 3 from 1-1-1960 at the instance of the defendant no. 4 on a.....
Judgment:

R.J. Bhave, J.

1. This appeal is by the tenants against the decree of the lower appellate Court confirming the decree of the trial Court for ejectment.

2. The house in question, of which the defendants are the tenants, or subtenants, was purchased by the plaintiff-firm under a registered sale-deed dated 22-9-1959 from Mulla Mohsin Ali, resident of Bhopal. On the date of the purchase. Zawar Hussain (defendant No. 4) was in occupation of the house on a monthly rent of Rs. 28/8/-. The plaintiff's case was that after the plaintiff-firm purchased the house, the lease in favour of the defendant No. 4 was determined by mutual settlement as a result of which the possession of the first floor of the house was given to the plaintiff-firm, while the premises in question, that is, the shop on the ground floor was leased out to the defendants 1 to 3 from 1-1-1960 at the instance of the defendant No. 4 on a monthly rent of Rs. 101/-. It is alleged that the defendants 2 and 3 are partners of the defendant No. 1 M/s. Ziaul Hasan Qurban Hussain. The defendants 1 to 3 paid rent in pursuance of the said settlement for some time but thereafter they stopped the payment.

The plaintiff firm came to know that the defendants 5 to 9 were being inducted in the suit premises as sub-tenants by the defendants 1 to 3 and hence they protested against it by sending a telegraphic notice and also by postal notice. Ultimately, the tenancy of the defendants 1 to 3 was determined by a notice dated 31-10-1963 with effect from the expiry of the tenancy month ending 31-12-1963. The plaintiff-firm thereafter filed the suit for ejectment of the defendants on theground that the premises were bona fide required by the plaintiff-firm for its own business, as the firm did not own any premises of its own in the city of Bhopal. The further ground urged was that the plaintiff-firm was entitled to eject the defendants, as they had sub-let the premises to the defendants 5 to 9 without the assent of the plaintiff.

3. The trial Court found that the bona fide need of the plaintiff was not established, but the plaintiff's suit was decreed on the ground that the defendants had sub-let the premises. The first appellate Court, however, found that both the grounds, namely, that of bone fide need as well as the ground of subletting were proved and hence decreed the plaintiff's suit for ejectment of the defendants. The defendants have, therefore, preferred this second appeal.

4. Shri Dube, learned counsel for the appellants, drew my attention to paragraph 12 of the judgment of the lower appellate Court where it is observed :

'It is true that the plaintiff has stated that he has no intention of vacating the premises which are in his occupation, but, that fact would not by itself debar him from occupying his own premises for continuing his own business.'

Shri Dube urged that in order to secure ejectment of the tenant it is not enough to show that the landlord has no other accommodation of his own within the city, but it must, also be shown that he is in bona fide heed of the accommodation. Once it is admitted by the plaintiff that he had no intention of vacating the premises, where the business was being carried on, the conclusion is inevitable that his need was not bona fide. (After examining the evidence and the particular portion of the deposition of P. W. 1, it was held that the lower appellate court was wrong in making the above observation. Then the Judge also holds that there is no merit in the defence contention that defendants 5 to 9 were in occupation as tenants from before the purchase of the premises by the plaintiff, Judgment continues.)

6. Shri Dube, however, urged that even if the defendants failed to prove that they were tenants of the predecessor of the plaintiff ,and that they were continued to be the tenants under the new agreement, the burden was on the plaintiff to prove that they were sub-tenants of the defendants 1 to 3 and that they were not occupying the premises in an unauthorised manner. In support, he relied on the decision of this Court in Nanakram v. Bank of Nagpur. Misc. Petn. No. 27 of 1958. decided on 23-7-1958 = 1958 MPLJ (Note) 176 where it was held that no presumption can be drawn from the mere fact that the de-fendants were in occupation of portion of the leased premises without the written permission of the landlord. In that case, however, it was held that an inference of sub-tenancy could be drawn from the evidence on record. Now, in this particular case the circumstances are that originally the defendant No. 4 was a tenant; thereafter the tenancy was created in favour of defendants 1 to 3. Subisequent to that, notices were given by the plaintiff warning defendants 1 to 3 from not creating sub-tenancy in favour of other persons. Defendants 5 to 9 are admittedly occupying the premises. It is not the case of the defendants 1 to 3 that they are occupying the premises forcibly or that they are mere licensees of the defendants 1 to 3. The case of the defendants was that they were on the premises from the very beginning as tenants of the predecessor-in-interest of the plaintiff. Once that claim is negatived, the inference can be drawn that they are occupying the premises as subtenants of the defendants 1 to 3. I do not, therefore, think that the Courts below were in error in drawing that inference.

In Lalit Mohan v. Keshorao, Second Appeal No. 567 of 1960, decided on 27-8-1963 = 1963 MPLJ (Notes) 269, the facts were that the plaintiff brought a suit for ejectment of the defendant No. 1 on the ground that he had sub-let a portion of the house to the defendant No. 2 without the express or implied permission of the plaintiff. According to the defendant No. 1, the defendant No. 2 was allowed to occupy the portion of the house as a licensee and, after the licence terminated, the defendant No. 2 continued to remain in the premises as a trespasser. The defence of the defendant No. 2 was that he was himself the tenant directly from the plaintiff. It was held by the lower appellate Court that the plaintiff failed to prove that the defendant No. 2 was the sub lessee. On these facts it was held by Pandey, J. that in the situation the lower appellate Court was in error in throwing on the plaintiff the burden of proving the precise relationship between the defendant No. 1 and the defendant No. 2. It was further held :

'It was manifest that the plaintiff did not place material on record showing prima facie that the defendants had special knowledge of the facts and circumstances under which the defendant No. 2 was and the defendant No. 1 was not, in possession of the house. That being so, the rule enacted in Section 106 of the Evidence Act regarding the burden of proving facts especially within the knowledge of a party applied. Since the burden was wrongly placed, there was an error of procedure justifying interference with a finding of fact in Second Appeal.On the basis of the facts proved in the case presumption arose that the defendant No. 2 was a sub-tenant and, the burden shifted to him to establish that he occupied the house in a different capacity.'

Reliance was placed on Santoshilal v. Chandramohan, AIR 1956 Madh Pra 121 and Rajaram v. Prahladdas. 1961 MPLJ (Notes) 233. Inasmuch as the defendants led no evidence to prove that the defendant No. 2 occupied the house otherwise than as a sub-tenant, it was held in that case that the defendant No. 2 was in possession of the house as e subtenant of the defendant No. 1. The facts of the present case are similar to the case, referred to above. I have, therefore, no hesitation in confirming the finding of the lower appellate court that the premises were sub-let by the defendants 1 to 3 to the defendants 5 to 9.

7. At the stage of the arguments, it was suggested that, as a matter of fact, the defendants 5 to 9 were partners of the firm, defendant No. 1. No material has been brought on record in support of that; nor was it the stand of the parties before t!he Court. When we know that the defendants 2 and 3 had entered into a contract of tenancy as partners of the defendant No. 1 with the plaintiff-firm, it is difficult to believe that the tenancy was really created in favour of the defendants Nos. 2 and 5 to 9.

8. For the aforesaid reasons. I find no substance in this appeal and the same is dismissed with costs.


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