SUBHASH JAISWAL Vs. TRILOKINATH KAKKAD

JUDGEMENT

(1.) Challenging the judgment and decree dated 23-1-1995 passed in Civil Appeal No. 2-A/94 by the II Additional Judge to the Court of District Judge, Jabalpur confirming the judgment and decree dated 9-7-1993 passed In Civil Suit No. 237-A/92 by VI Civil Judge Class-I, Jabalpur, this appeal under section 100 of the Code of Civil Procedure, 1908 has been preferred by the defendant/appellant. The plaintiff seeking eviction from House No. 25 situated in Sadar Bazar, Jabalpur known as Wine Shop 'Umar Khaiyam' filed the suit on the ground allegedly available under section 12(1)(a) and (c) of the M.P. Accommodation Control Act, 1961 (in short 'the Act'). It is averred that the suit land was taken on lease for 51 years from Krishna Datt Sharma. Plaintiff had constructed the house and shop, however he is the owner of the said house indicated in the map delineated to the suit property marked as 'A', 'B', 'C', 'D', 'E' and 'F'. The defendant is the tenant in the said shop on a monthly rent of Rs. 750/- as per agreement executed on 16-6-1975. It is said that a civil suit bearing No. 4-A/78 seeking ejectment and arrears of rent was filed earlier by the plaintiff against the defendant in the Court of II Additional District Judge, Jabalpur which was decided on 30-11-1978 and a decree for arrears of rent only was granted. The eviction part was disallowed because the notice as required under section 106 of the Transfer of Property Act was not served on the defendant. Against the said judgment, First Appeal No. 40/79 was filed by the defendant that too was dismissed on 24-8-1982. Even on passing the decree against the defendant, arrears of rent has not been paid, however after sending a fresh notice dated 1-5-1982 this suit seeking eviction under section 12(1)(a) of the Act has been filed. It is further averred that the defendant is estopped to deny the title and contract of tenancy in view of the decree passed against him earlier and affirmed up to this Court. It is also said that K.D. Sharma, the original owner leased out the land to the plaintiff on payment of lease rent whereupon a house bearing No. 25 has been constructed, executing agreement on 20-3-1969. In the said agreement permission for sub-lease the said house has also been granted to the plaintiff. The defendant is now denying the title of the plaintiff and setting up title in 'Chhakkilal', however the decree under section 12(1)(c) of the Act for disclaimer of title may also be granted. It is pleaded that the denial of tenancy of the defendant showing Prakash Jaiswal (brother of defendant) as tenant is also unsustainable in view of the findings recorded in the earlier round of litigation.

(2.) The defendant by filing written statement admitted that the suit earlier filed by the plaintiff was decreed against him for arrears of rent, even up to the High Court in appeal. The other allegations were denied stating that the property was belong to Chhakkilal whose name was recorded in the record of Cantonment Board. The plaintiff himself is a tenant of one K.D. Sharma, thus having no right to file this suit showing the defendant as tenant. It is also submitted that the rent agreement executed with defendant in favour of plaintiff is void in view of the foregoing facts, however prayer is made to dismiss the suit.

(3.) The trial Court vide order dated 10-3-1989 struck off the defence of the defendant and the right to adduce the evidence was also closed and the suit was decreed on the ground of section 12(1)(a) and (c) of the Act and also for mesne profit. On filing the appeal before the first Appellate Court, the finding so recorded by the trial Court has been affirmed. During the pendency of the appeal, the appellant has filed application under Order 41, Rule 27 of Civil Procedure Code for taking document indicating delivery of possession by Prakash Jaiswal to the original owner K.D. Sharma and also filed an application seeking amendment to that effect in the written statement which were disallowed by the impugned judgment, affirming the finding of trial Court in to.