PURUSHOTTAMDAS ISHWARDAS SEWANI Vs. LAXMILAL ROOPCHAND DHING

JUDGEMENT

(1.) Being aggrieved by the judgment dated 12-5-2008 passed by II ADJ. Mandsaur in Civil Regular Appeal 69-A/2007 whereby judgment dated 31-10-2007 passed by Civil Judge Class-II, Mandsaur in Civil Suit 34- A/2005 whereby suit filed by the respondent for eviction under sections 12(1)(a), (b) and (f) of the M.P. Accommodation Control Act, 1961 (which shall be referred hereinafter as "Act") was dismissed was modified by passing the decree under section 12(1)(b) of the Act, present appeal has been filed. Short facts of the case are that respondent filed a suit for eviction against the appellants on 22-2-2005 alleging that respondent is owner of suit shop situated at Kalidas Marg, in front of Maandasji Ka Bagh, Station Road, Mandsaur in which appellant 1 is tenant w.e.f. 1-11-1998 @ Rs. 300/- per month. It was alleged that appellant 1 inducted appellant 2 as sub- tenant and handed over possession of suit shop to the appellant 2. It was alleged that respondent requires the suit accommodation bona fidely. It was alleged that appellants has created nuisance. It was prayed that decree of eviction under section 12(1)(a) (b) and (f) of the Act be passed in favour of the respondent. The suit was contested by the appellants by filing the written statement. In the written statement filed by the appellants it was not disputed that status of the appellant 1 in the suit shop is as of tenant. It was denied that appellant 1 has inducted appellant 2 as subtenant. It was alleged that suit shop is in the occupation of appellant 1 wherein appellant 1 is carrying-on his ancestral business. It was prayed that suit be dismissed. After framing of issues and recording of evidence, learned trial Court dismissed the suit against which an appeal was filed which was allowed in part and decree under section 12(1) (b) of the Act was passed, hence this appeal.

(2.) Learned counsel for the appellants argued at length and submit that the impugned judgment passed by learned Appellate Court is illegal, incorrect and deserves to be set-aside. It is submitted that appellants has proved that appellant 1 is in occupation of the suit accommodation. It is submitted that since burden of proof that the appellant 1 has transferred his possession and inducted appellant 2 as sub-tenant is on the respondent, therefore, there was no justification on the part of learned Appellate Court in passing the decree under section 12(1) (b) of the Act. It is submitted that findings given by learned trial Court in favour of the appellants which are based on due appreciation of evidence. Hence, there was no justification on the part of learned Appellate Court to disturb the same. Reliance is placed on a decision in the matter of M/s. Delhi Stationers and Printers v. Rajendra Kumar, 1990 AIR(SC) 1208 wherein Hon'ble Apex Court has observed that mere occupation by alleged sub-tenant is not sufficient to infer either sub-tenancy or parting with possession of rented premises by the tenant without permission of landlord. Further reliance is placed on a decision in the matter of Gopal Saran v. Satvanaravan, 1989 AIR(SC) 1141 wherein tenant additionally carrying on business of putting up advertisement boards of customers on terrace of demised shop for which some amount also charged to customers, Hon'ble Apex Court held that since there were no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else, there was not any assignment or subletting or parting with possession, hence decree under section 12(1)(b) of the Act was refused.

(3.) On the strength of aforesaid position of law learned counsel for the appellants submit that since in the present case respondent has not proved that appellant 1 has transferred his possession, therefore, no decree could have been passed against the appellants. It is submitted that appeal be allowed and the impugned judgment passed by learned Appellate Court be set aside.