Case: Bismillah Be (Dead) by L.Rs Vs. Majeed Shah

2. These appeals are filed against the final judgments and orders dated 27.11.2009 in Second Appeal No. 1097 of 2007 and 15.01.2010 in Review Petition No. 656 of 2009 passed by the High Court of Judicature at Jabalpur, Madhya Pradesh whereby the High Court dismissed second appeal and the review petition filed by the appellant herein.3. In order to appreciate the short controversy involved in these appeals, few relevant facts need mention infra.4. The appellant is the plaintiff (Landlord) whereas the respondent is the defendant (Tenant).5. One Rai Bahadur Motiram Mathuradas was the original owner of the several houses bearing nos. 58, 58-A, 58-B, 58-C, 58-D, 395, 397, 397-A, 398 to 403, 403-A to 403-D and servant quarter Nos. 1-16 situated at Street Nos. 10 & 11, Sadar Bazar Cantonment Jabalpur known as "Moti Bada" later known as "Allaha Baux compound". Rai Bahadur Motiram Mathuradas inducted respondent as his tenant in House no. 402 (hereinafter referred to as "the suit house") on monthly rent of Rs. 80/-.6. Rai Bahadur Motiram Mathuradas was an income-tax asseesee. He did not pay his taxes and thus became the defaulter under the Income Tax Act, 1961 (for short "The Act"). The Income-Tax Department, therefore, initiated tax recovery proceedings.7. Before the arrears could be paid, Rai Bahadur Motiram died. His son - Kasturilal Mathuradas, who inherited the properties of his late father, sought permission from the Income-Tax Department to sell Moti Bada property to enable him to clear the arrears. The Department granted the permission to Kasturilal.8. Kasturilal then sold Moti Bada property including suit house to one Vasant Kripalani. The Income Tax Department issued the sale certificate on 11.06.1974 (Ex P-4) in favour of the purchaser pursuant thereto Kasturilal executed registered sale deed dated 16.09.1974 (Ex -P-6) in favour of Vasant Kripalani, who in turn, sold the said property same day jointly to six persons viz., Gyarsi Bai Chouksey, Lalta Bai Chouksey, Bhama Bai Chouksey, Bismilla Be (appellant herein), Idda Bai and Mohd. Jayed by executing another registered deed of sale dated 16.09.1974 (Annexure- P-7). Thereafter, these six persons, by registered partition deed dated 14.03.1984 (Annexure-8), partitioned the said property amongst them. So far as the suit house is concerned, it fell to the share of the appellant (plaintiff). This is how, the appellant became the sole owner of the suit house.9. The appellant then on 08.05.2003 served legal notice (Annexure-P-9) to the respondent terminating his tenancy. The appellant called upon the respondent to pay the arrears of rent at the rate of Rs. 80/- p.m. for a period of three years preceding the date of notice and also called upon the respondent to vacate the suit house on the ground that he made unauthorized construction in the suit house without seeking the permission of the appellant.10. The respondent replied to the notice (Annexure P-10) wherein he admitted that he is in possession of the suit house for the last 50 years. He also admitted that the suit house was originally belonged to Seth Motiram and that he was the tenant of Seth Motiram. He also said that on Seth Motirams death, the Cantonment Board acquired the suit house because he did not leave any successor to inherit his property. This is how the respondent denied existence of any relationship of landlord and tenant with the appellant in relation to the suit house and challenged his derivative title.11. The appellant then filed a civil suit against the respondent in the Court of Civil Judge, Class I, Jabalpur seeking respondents eviction from the suit house under the M.P. Accommodation Control Act, 1961. The eviction was sought inter alia on the grounds covered under Section 12(1)(a), i.e., arrears of rent; 12(1)(c), i.e., nuisance created by the respondent; 12(1)(e),i.e., the appellants bona fide need for his residence; and Section 12(1)(m),i.e., unauthorized construction made by the respondent without the permission of the appellant in the suit house.12. The respondent filed his written statement. He reiterated his stand, which he had taken in reply to the appellants legal notice. While admitting the ownership of original owner Rai Bahadur Motiram so also the creation of tenancy by Motiram with him in relation to the suit house denied such creation with the appellant. He further denied the grounds pleaded by the appellant for claiming his eviction from the suit house.13. The Trial Court framed issues on the basis of the aforesaid pleadings. Issue no.1 was whether the appellant (plaintiff) has proved the relationship of landlord and tenant with the respondent in relation to suit house and, if so, its effect.14. The Trial Court held that the appellant (plaintiff) was not able to prove the relationship of landlord and tenant with the respondent in relation to suit house. This being the main issue and the same having been answered against the appellant, it resulted in dismissal of the appellants suit though the Trial Court also answered other issues.15. The appellant, felt aggrieved, filed an appeal before the Court of VIII Additional District Judge, Jabalpur being Civil Appeal No. 15-A of 2006. By order dated 28.03.2007, the District Judge dismissed the appeal.16. Against the said order, the appellant filed second appeal being S.A. No. 1097 of 2007 in the High Court. By impugned order dated 27.11.2009, the High Court dismissed the appeal in limine saying that the appeal does not involve any substantial question of law. It was held that since both the Courts below have dismissed the suit by answering the issue of relationship of landlord and the tenant against the appellant and also on other issues, such findings are concurrent findings of fact and are binding on the High Court. The High Court, however, neither set out the facts of the case and nor the legal principle applicable to such controversy.17. Against the judgment of the High Court in second appeal, the appellant filed review petition being Review Petition No. 656 of 2009 before the High Court. By judgment dated 15.01.2010, the High Court dismissed the said review petition.18. Challenging the judgment in the second appeal and the review petition, the appellant(plaintiff) has filed these appeals by special leave before this Court.

Reasoning:
27. Keeping the aforementioned principle of law in mind and applying the same to the facts of the case, we are of the considered opinion that the appellant (plaintiff) has proved his title to the suit house so also the relationship of landlord and tenant with the respondent in relation to suit house. This we say for more than one reason stated infra.28. First, it is an admitted fact that Rai Bahadur Motiram Mathuradas was the original owner of the suit house, which was a part of Moti Bada. Second, it is also an admitted fact that the respondent was inducted as a tenant by Rai Bahadur Motiram Mathuradas in the suit house. Third, the respondent, in his reply, has admitted the aforesaid two facts in para 4 of his reply to the appellants legal notice and in para 13 of his written statement. Fourth, the suit house was sold after obtaining permission from Income Tax Department to Mr. Kriplani by registered deed of sale dated 16.09.1974 and Mr. Kriplani, in turn, sold to six persons, which included the appellant, by another registered deed of sale dated 16.09.1974. Fifth, these six persons (co-owners) then by registered deed of partition dated 14.03.1984 effected partition inter se and the suit house fell to the share of the appellant herein. Sixth, all these five facts enumerated herein were duly proved by the appellant by first pleading in the plaint and then by filing documentary evidence. Seventh, the appellant served quit notice to the respondent setting out therein all these facts. Eighth, the respondent failed to adduce any evidence in rebuttal to disprove the appellants case except bald denial of the appellants title over the suit house and lastly, the respondent having admitted the ownership of his original landlord and his tenancy with the original landlord, he became the appellants tenant by operation of law on the appellants proving his title over the suit house.29. In the light of aforementioned eight reasons, we find no difficulty in holding that the appellant proved her title over the suit house and thus she became a landlady of the suit house. In consequence thereof, the respondent became her tenant by operation of law on the same terms as agreed upon with the original landlord. The appellant then rightly determined the tenancy by serving quit notice to the respondent.30. In the light of foregoing discussion, we answer issue nos. 1, 2 and 3 framed by the Trial Court in favour of the appellant (plaintiff) and against the respondent (defendant) and accordingly hold that the appellant (plaintiff) is the owner/landlord of the suit house whereas the respondent(defendant) is the appellants tenant and there exists relationship of landlord and tenant between the appellant and the respondent in relation to the suit house; second, the respondent (defendant) is the tenant at the rate of Rs. 80/- per month and third, the appellant(plaintiff) has served proper quit notice on the respondent (defendant) demanding balanced rent.The cursory disposal of the second appeal in limine by the High Court without mentioning the facts, the submissions of the appellant, the points arising in these appeals and legal principles applicable to the case can not be countenanced.33. Though the Trial Court has also recorded findings on other issues against the appellant but we find that the findings on other issues were influenced by the findings given on the first three issues.34. In our view, in the light of the reversal of findings of three courts by this Court, it would be just and proper that the case is remanded to the Trial Court (Civil Judge Class I), Jabalpur for deciding the suit afresh on merits on issues nos. 4 to 11 which relate to grounds for seeking eviction under Section 12 of the Act.