Bismillah Be (Dead) By Lrs vs Majeed Shah

3) In order to appreciate the short controversy involved in these appeals, few relevant facts need mention infra.

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.

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.

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.

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 appellant’s 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 appellant's case except bald denial of the appellant's 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 appellant's tenant by operation of law on the appellant's proving his title over the suit house.

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.

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 appellant's 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 .

31) In view of what is held above, it is not necessary to remand the case to the High Court for deciding the second appeal afresh on merits which, in our view, did involve the substantial questions of law within the meaning of Section 100 of the Code of Civil Procedure,1908 and deserved its admission for final hearing.

32) 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.

36) In view of foregoing discussion, these appeals succeed and are allowed with costs of Rs.5000/- payable by the respondent to the appellant. The impugned judgments of the High Court, first Appellate Court and the Trial Court are set aside. The civil suit out of which these appeals arise is restored to its file. Parties to appear before the Trial Court on 03.01.2017 to enable the Trial Court to proceed in the matter, as directed, in accordance with law.