MOOL CHAND RAJAK Vs. S P KAPOOR

JUDGEMENT

(1.) The appellant/plaintiff has preferred this appeal under section 100 of the Civil Procedure Code being aggrieved by the judgment and decree dated 1-2-2006 passed by Additional District Judge Sohagpur, District Hoshangabad in regular Civil Appeal No. 27-A/05 upholding the judgment and decree dated 30-7-2005 passed by Civil Judge Class-I Pipariya in Civil Original Suit No. 4-A/01 whereby, dismissing the suit of the appellant filed for declaration and perpetual injunction, the counter-claim of the respondents No. 6 and 7 filed for eviction of the appellant from the disputed premises had been decreed.

(2.) Facts giving rise to this appeal in short are that the appellant/plaintiff herein filed the suit against the respondents for declaration, perpetual injunction and mandatory injunction with respect of the house situated at Pachmarhi on 1385.33 Sq.ft. land of Survey No. 93/791 and 93/790(A) contending that he is in occupation of such house from the time of his forefather since last 70 years as tenant of Kamla Patel and after her demise, the same was inherited by the respondents No. 1 and 2 and on their behalf by giving the receipt the respondent No. 3 is receiving the rent. As per further pleadings, the appellant family being in possession of the house since long having sentimental attachment with it, was interested to purchase the same. Therefore, appellant and his daughter-in-law had intimated the respondent No. 1 and 2 regarding such wish, but no response was given by the respondents No. 1 and 2. In spite of aforesaid intimation such house was sold by the respondents to respondents No. 6 and 7 vide registered sale deed dated 31-8-2001. As per custom prevailed in the area of Panchmarhi, on selling the house by the landlord, the tenant of the premises had pre-emption right to purchase the same. Therefore, the aforesaid sale deed executed by the respondents No. 1 to 5 in favour of respondents No. 6 and 7 being ab initio void is not binding against the appellant. With these pleadings the aforesaid suit with the prayer of declaring the appellant had a pre-emptory right to purchase the disputed property with a further prayer for issuing perpetual injunction restraining the respondents to sell the aforesaid house along with a mandatory injunction directing the respondents not to sell the aforesaid house to any other person except the appellant, is filed.

(3.) In the joint written statement of the respondents, it is stated that such house is not situated on the area as stated in the plaint, but the same is situated on 1,000 Sq. ft. of land. As per further pleadings, the appellant and his family members were residing in their own house situated adjoining to the aforesaid disputed house. The disputed house was belonging to respondent No. 1 to 5 and on their terms under intimation to the appellant they had sold the same in consideration to respondents No. 6 and 7 vide registered sale deed dated 31-8-2001. It is also stated that the appellant and his daughter-in-law shown their interest to purchase the same in consideration of Rs. 3,00,000/- while, the same was sold to respondents No. 6 and 7 in consideration of Rs. 4,38,000/- . The suit is not valued in accordance with law on market value of the disputed house and on carrying out the valuation in such manner then, the same is not falling under the territorial jurisdiction of the trial Court. With these submissions the prayer for dismissal of the suit is made. Simultaneously, on behalf of respondents No. 6 and 7 a counter-claim was also filed against the appellant contending that the appellant being monthly tenant of respondents No. 1, 2, 4 and 5 @ Rs. 230/- per month was in occupation of the aforesaid premises for residential purpose. As per further averments on purchasing the house by the respondents No. 6 and 7 by aforesaid registered sale deed, the appellant has become their tenant on the same terms in such house. Before execution of the sale deed, an intimation in that regard was given by the respondent No. 2 to the appellant and his daughter-in-law and even subsequent to execution of the sale deed, the respondents No. 6 and 7 intimated the appellant about acquisition of the title in such property with a further intimation to pay the rent of such premises to them vide notice dated 10-6-2002 Ex. D/1. The same was served on him vide Ex. D/3. Subsequently, by another notice dated 10-9-2002 Ex. D/4 by making the demand of the outstanding rent the appellant was informed to vacate the premises on the ground that he had acquired sufficient accommodation of his own on Patel Road Pachmarhi for the residence of his family and his aforesaid tenancy was also terminated at the end of tenancy month on 30-9-2002 the same was also served. In spite service of such notices on appellant, none of them was replied by him. With these pleadings the counter-claim for eviction of the appellant from the disputed premises on the grounds available under sections 12(1)(a) and 12(1)(i) of the M.P. Accommodation Control Act, 1961, (In short 'the Act') is filed with the written statement.