Heard.
The appellant/defendant has filed this Second Appeal against the judgment and decree dated 28/6/2011 passed by First Appellate Court in Civil Appeal No. 8A/11, whereby the appellate court affirmed the judgment and decree dt.22.12.2000 passed by the trial court in Civil Suit No. 50A/09.
The plaintiff filed a suit for eviction. He pleaded that he is the owner of the suit accommodation and it was rented out to the defendant on 7.12.1984 and a written rent note was executed by the defendant on 7.12.1984 The defendant was the tenant of the plaintiff at the rate of Rs. 430/- per month. The defendant paid the rent upto 6.3.2005 Thereafter, he had stopped paying the rent. The suit accommodation, which is a shop, was rented out for the purpose of business of grain merchant. However, in the year 1988, the defendant changed the user and also started kerosene oil from the shop. The plaintiff further pleaded that he is an Advocate. He is residing over the first floor of the accommodation and he wants the shop for his own purpose because he would use the premises as chamber for his practice.
The defendant/appellant denied the pleading of the plaintiff. He further pleaded that there is no boan fide need to the plaintiff. The plaintiff is not the owner of the shop and he had deposited the rent with the court.
The trial court decreed the suit and passed the decree of eviction on the ground of Section 12(1)(c) and 12(1)(f) of the M.P Accommodation Control Act, 1959 (hereinafter shall be referred to as ‘the Act’). Against the judgment of the trial court, an appeal was filed. The first appellate court again re appreciated the facts and evidence on record and dismissed the appeal.
Learned counsel for the appellant has pleaded that the plaintiff is not the owner of the shop. The land was granted on lease to a person from whom the plaintiff purchased the land. Subsequently, the lease has been cancelld. He further pleaded that there is no bona fide need to the plaintiff.
In regard to the question of ownership of the plaintiff, it is an admitted fact that the defendant was inducted as tenant by the plaintiff and he had paid the rent to the plaintiff.
Hon'ble Supreme Court in the case of Sheela v. Firm Prahlad Rai Prem Prakash reported in 2002 (2) MPLJ 354 has held as under in regard to establishment of fact by the plaintiff about his ownership of the premises in view of Section 12(1)(f) of the Act:
“10. While seeking an ejectment on the ground of bona fide requirement under clause (f) abovesaid the landlord is required to allege and prove not only that he is a ‘landlord’ but also that he is the ‘owner’ of the premises. The definition of ‘landlord’ and ‘tenant’ as given in clauses (b) and (i) of Section 2 of the Act make it clear that under the Act the concept of landlordship is different from that of ownership. A person may be a ‘landlord’ though not an ‘owner’ of the premises. The factor determinative of landlordship is the factum of his receiving or his entitlement to receive the rent of any accommodation. Such receiving or right to receive the rent may be on the own account of the landlord or on account of or for the benefit of any other person. A trustee, a guardian and a receiver are also included in the definition of landlord. Such landlord would be entitled to seek an eviction of the tenant on one or more of such grounds falling within the ambit of Section 12(1) of the Act which do not require the landlord to be an owner also so as to be entitled to successfully maintain a claim for eviction. Clause (f) contemplates a claim for eviction being maintained by an owner-landlord and not a landlord merely. Though of course, we may hasten to add, that the concept of ownership in a landlord-tenant litigation governed by Rent Control Law has to be distinguished from the one in a title suit. Ownership is a relative term the import whereof depends on the context in which it is used. In Rent Control Legislation, the landlord can be said to be owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in a landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. In M.M Quasim v. Manoharlal Sharma, (1981) 3 SCC 36, it was held that an ‘owner-landlord’ who can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own. In Dilbagrai Punjabi v. Sharad Chandra, 1988 Supp SCC 710, this Court held that it was essential to sustain a claim of eviction under Section 12(1)(f) of the Act to establish that the plaintiff was the owner of the premises. However, the Court upheld the ownership of the landlord having been proved on the basis of an admission of the ownership of the plaintiff made by the defendant in reply to notice given before the institution of the suit and the recital of the name of the plaintiff as the owner of the property contained in the receipts issued by the landlord to the tenant over a period of time. Thus, the burden of proving ownership in a suit between landlord and tenant where the landlord-tenant relationship is either admitted or proved is not so heavy as in a title suit and lesser quantum of proof may suffice than what would be needed in a suit based on title against a person setting up a contending title while disputing the title of the plaintiff. Nevertheless pleading and proving ownership, in the sense as it carries in Rent Control Law, is one of the ingredients of the ground under Section 12(1)(f) of the Act.”
Hon'ble Supreme Court in the aforesaid case has further held as under in regard to estoppel:
“16. After the creation of the tenancy if the title of landlord is transferred or devolves upon a third person the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant how does it concern him what the title of the lessor is [See Tej Bhan Madan v. IInd Additional District Judge, (1988) 3 SCC 137]. A denial of title which falls foul of the rule of estoppel contained in Section 116 of Evidence Act is considered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good to the lessee himself. However, it has to be borne in mind that since the consequences of applying the rule of determination by forfeiture of tenancy as a result of denial of landlord's title or disclaimer of tenancy by tenant are very serious, the denial or disclaimer must be in clear and unequivocal terms [See Majati Subbarao v. P.V.K Krishna Rao (Deceased) By Lrs.. (deceased) by L.Rs, (1989) 4 SCC 732; Kundan Mal v. Gurudutta, (1989) 1 SCC 552 and Raja Mohammad Amir Ahmad Khan (supra)]. We may quote with advantage the law as stated by a Division Bench of Calcutta High Court in Hatimullah v. Mahamad Abju Choudhury, AIR 1928 Cal 312. It was held, “the principle of forfeiture by disclaimer is that where the tenant denies the landlord's title to recover rent from him bona fide on the ground of seeking information of such title or having such title established in a Court of law in order to protect himself, he is not to be charged with disclaiming the landlord's title. But where the disclaimer is done not with this object but with an express repudiation of the tenancy under the landlord, it would operate as forfeiture.”
From the judgment of the Hon'ble Supreme Court it is clear that if the tenant paid the rent to the landlord, then on the principle of estoppel he could not question the ownership of the landlord. In the present case. The appellant was inducted as tenant by the respondent and he had paid the rent to the respondent. In such circumstances, in my opinion, the appellant has no locus standi to challenge the ownership of the plaintiff.
In regard to the bona fide need, the plaintiff has specifically pleaded and established by evidence that he wants the suit accommodation to use it as a chamber because he is a practicing advocate. The aforesaid fact has been found proved by both the courts. In such circumstances, in my opinion, the findings recorded by both the courts below are in accordance with law.
The defendant/appellant admitted the fact that he had started the business of selling the kerosene oil from the suit accommodation, however, he further pleaded that after some time he had stopped the business, but it has been established that the defendant/appellant changed the user without the consent of the respondent/landlord, hence, the trial court has rightly granted the decree of eviction on the ground of Section 12(1)(c) of the Act also. In my opinion, both the courts have appreciated the evidence properly. Consequently, no substantial question of law involved for determination of this Second Appeal. It is hereby dismissed.
At this stage, learned counsel for the appellant prays that some reasonable time may be given to vacate the suit accommodation.
In the interest of justice, prayer is accepted. It is directed that the appellant - tenant is permitted to retain the suit accommodation on the condition that he shall vacate the suit accommodation on or before 31st January, 2014. It is further directed that the appellant - tenant shall file an undertaking to the effect that he shall not sub-let the suit accommodation to any third person nor to cause any damage to the suit accommodation and will handover vacant and peaceful possession of the suit accommodation to the landlord - plaintiff on or before 31 January, 2014. During this period, appellant - tenant shall pay and deposit regularly rent/mesne profit as fixed by the trial Court till vacation of the suit accommodation in the aforesaid manner. In the event of failure to comply with any of the terms and conditions stated above, the judgment and decree of eviction shall become executable immediately thereafter.
No order as to costs.
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