MISHRIBAI Vs. JAHEER HUSSAIN

JUDGEMENT

(1.) THIS is an appeal filed by the defendants under section 100 of the Code of Civil Procedure against the judgment and decree dated 25.8.1993 passed by the 9th Additional District Judge, Jabalpur in Civil Appeal No. 11 -A of 1992 arising our of the judgment and decree in Civil Suit No. 185 -A 1991 passed by the IVth Civil Judge, Class -II, Jabalpur. The facts of this case are as follows :

(2.) THE respondents and one Rahmat Bi (since deceased) had brought a suit for eviction against the original defendant Nand Kishore Gupta under section 12(1)(a), 12(1)(c) and 12(1)(e) of the M.P. Accommodation Control Act, 1961 (henceforth the Act). It was alleged in the plaint that the suit house is situate at Sadar Bazar, Cantonment, Jabalpur. It is numbered as House No. 437 -A and 437 -B by the Cantonment and is shown in the plaint map in the red colour. The suit house belonged to Afzal Hussain who had let it out to the defendant Nand Kishore Gupta. It was stated that originally the house belonged to Ahmad Hussain who gave it to his wife Bano Begum by Tamlik Nama. Afzal Hussain was the younger son of Bano Begum (also called Bano Bi) and lived with his mother. Bano Begum gifted the suit property orally to Afzal Hussain. Bano Begum expired on 25.1.1973 and Afzal Hussain died on 17.12.73. The respondents are the sons and daughters of Afzal Hussain. It was claimed that on 27.10,47, a lease -deed was got executed from Nand Kishore Gupta. The suit house was let out for Rs. 20/ - per month. Nand Kishore Gupta had recognised Afzal Hussain as his landlord and paid rent to him between 1972 and 1974 for a period of 27 months. Thereafter he refused to pay rent and denied the title of the respondents. The tenancy of Nand Kishore Gupta was terminated by serving a notice under section 106 of the Transfer of Property Act and since the original defendant did not pay the rent two months after the service of notice of demand, a suit for eviction was brought against him for non -payment of rent under section 12(1) (a) for denial of title under section 12(1)(c) and on the ground of bona fide requirement under section 12(1)(e) of the Act. The mesne profits were also claimed. The defendant Nand Kishore Gupta, inter alia, pleaded that he was not the tenant of Afzal Hussain. Initially the suit property belonged to Bano Begum. The lease -deed dated 7.10.47 was unregistered and, therefore, inadmissible in evidence. The lease -deed was not acted upon. The suit property vested in the Custodian General on 18.2.50. The suit house was subsequently released in his favour. It was also pleaded that the suit house was gifted to him by Bano Begum. He claimed to have perfected his title by adverse possession. It was further pleaded that the respondents were not his landlord and the property was given to Nand Kishore Gupta by him in partition. He denied the execution of lease -deed and denied the relationship of landlord and tenant. Both the courts have decreed the entire claim of the respondents under section 12(1)(a), 12(1)(c) and (12(1)(f) of the Act. The appeal was admitted by this court on the following substantial questions of law by order dated 28.1.1994 : -

(3.) THE main argument advanced by the learned counsel for the appellants is that the suit property stood vested in the Custodian as would be clear from Ex. D -36 which records that the House No.437, Sadar Bazar, area 1204 recorded in the name of Mst. Bano Bi wife of Ahmad Hussain as a holder of occupancy right by virtue of an old grant. In the remark column No. 13, it has been recorded that the property was taken by the Custodian of Evacuee -Property under Ordinance XXVII of 1949. The Authority G. of India M of D No. 28/7/1/L&C/49/862 dated 18.2.50. It has been argued on the basis of the above entry that this court must draw a presumption in favour of the entry made in the record of rights maintained by the Cantonment Board. The attention of the Court was drawn to section 289 of the Contonment Act, 1924. The learned counsel for the appellant placed a copy of the mutation - register dated 16th October, 1998. This document is the same as Ex. D -36 and the remark column contains a similar entry showing that the suit property stood vested with effect from 18.2.50. The learned counsel for the respondents supported the judgment and decree of the court below and stated that the suit property was never proved to be vested in the Custodian of Evacuee Property by the appellants. Earlier, the property was taken over by the Custodian of Evacuee Property, but as found by the court below, the Custodian of Evacuee Property had released the suit house as per Ex. P -6 in favour of Bano Begum. The question that has to be decided by the court is if the relationship of landlord and tenant between the appellant and the respondents subsisted on the date of filing of the suit for ejectment of the whole of the suit property vested in the Custodian of Evacuee Property on the date of filing of the plaint, then the suit may not be maintainable. Even otherwise, there are restrictions in the Act' and the Administration of the Evacuee Property Act regarding the filling of a suit in respect of a property vested in the Custodian of Evacuee Property. These questions have to be dealt with in their sequence at proper place. But before we embark upon this ordons voyage of judicial scrutiny, it is necessary to settle the first question first. Did property in question remain vested in the Custodian of Evacuee Property. Both the courts below have heavily relied upon the order dated 6.10.1948 marked as Ex. P -6. It reads as under : - Copy of Ordered / 6.10.48 in Rev. Case No. 132 of 47 -48 Head XXXIII/7 of the court of S.D.O., City Jubbulpore. Custody of Evacuee Property S.O.Cantt Vs. Mst. Bano Bal House No. 437, Tongakhana, Jubbulpore, decided on 6.10.48. Govt. fee amounting to Rs. 12/ - only credited into the Treasury vide challan No. 18 of 22.3.48 (page no.41) and proportionate cost of management amounting to Rs. 12 -6 -0 recovered by R.No. 113 of 22.9.48. Possession of the house restored to the owner on 22.9.48 vide his acknowledgment on page no. 43. Entries made in registers and accounts closed.