SANTOSH KUMAR JAIN Vs. SHAMBHULAL KRISHNA KUMAR SUHANE

JUDGEMENT

(1.) This judgement will also govern the disposal of Second Appeals Nos. 371/87, 372/87 and 389/87 which raise common questions of fact and law for decision of this Court. These are plaintiff's appeals under S. 100, C.P.C. challenging the legality and validity of judgement and decree dated 27-7-1987 passed by Addl. District Judge Katni in Civil Appeals Nos. 19-A/82, 20-A/82, 18-A/82 and 21-A/82, reversing the judgement and decree passed by the Second Civil Judge Class II, Mudwara in Civil Suits Nos. 171-A/78, 172-A/78, 178-A/78 and 179-A/78 dated 30-4-82 and dismissing the appellant's suit for eviction.

(2.) Facts covering controversies between the parties and necessary for decision of these appeals are that Sumerchand Jain, the father of the appellants, had let out the suit accommodation, consisting of a shop bearing House No. 27 and godown in the same premises to the defendant by creating two separate tenancies in his favour. The shop was first let out on a rent of Rs. 175/- per month. After sometime the godown was also let out on a monthly rent of Rs. 45/-. Later on, on 11-10-75, the said Shri Sumerchand Jain effected a partition in his family and gave the tenanted shop and godown to present appellants Santosh Kumar and Vinod Kumar who had half and half share in the same. The partition deed was duly registered and is on record as Ex. P-17. It is therefore alleged that the two plaintiffs became the owners of half and half share of the tenanted premises. Intimation of the partition was duly conveyed to the respondent-tenant who also attorned in their favour and started paying rent to both of them according to their share. The two brothers filed their separate suits on 4-9-78 claiming eviction of the respondent-tenant on the ground that the shop and the godown was bona fide required by them for starting their own business. It was also submitted that a partition wall has to be constructed in the premises so as to properly demarcate the shares of the two brothers and which construction cannot be done without evicting the respondent-tenant. The respondent-tenant, in his written statement admitted that he had taken the tenanted premises on rent of Rs. 175/- and Rs. 45/- per month from Sumerchand Jain. He also admitted that following the partition in the family he had divided the rent and started paying the same in equal share to the two brothers. But he denied that this was the effect of any real partition. According to him, the partition was sham and intended to provide justification for the eviction suit. He also denied that there was any real or genuine need of the shop or godown by the appellant for any purpose, muchless the business. As regards partition and apportionment of rent, he stated in para 2 of his written statement that "It is however admitted that since tine partition was the internal affair of the plaintiff's family, he (Shambhulal) did not contest and accepted to pay the half rent to the plaintiff. Even after the partition, the previous terms and conditions of tenancy remained the same." The learned trial Judge on consideration of evidence adduced by the parties held that the appellants were the owners and landlords of the house and needed the same bona fide for starting their own business. On the aforesaid finding, a decree for eviction was passed. The respondent appealed against the said decree. The learned lower appellate Court reviewed the evidence on record and held that the appellant was not the owner of the House; the partition was effected to clothe him with title only and was neither real nor genuine. On the aforesaid findings the Court also held that the requirement was not bona fide. That is how the appeal was allowed and suit dismissed and the matter is in this Court in the present second appeal.

(3.) The first important question requiring consideration of this Court is whether the appellant is the owner of the tenanted premises ? In Dilbagrai Punjabi v. Sharad Chandra, AIR 1988 SC 1858, it was held that where a landlord claims eviction of his tenant from a non-residential premises on the ground of bona fide requirement of starting a business, it is essential that he also establishes that he is the owner of the disputed premises. This is also the basic requirement of S. 12(1)(f) of the M.P. Accommodation Control Act, 1961. This question also arose before the Supreme Court in Subhash Chandra v. Mohammad Sharif, 1990 Jab LJ 209, in the context of the right of a tenant to challenge title of his landlord and it was clarified that though the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff, the same cannot be true about a case where the plaintiff's rights are founded on a derivative title. A tenant already in possession can challenge the plaintiff's claim on derivative title showing that the real owner is someone else but this is subject to the rule enunciated under S. 116 of the Evidence Act. This Section does not permit the tenant during the continuance of the tenancy, to deny that his landlord had, at the beginning of the tenancy, a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit but that will be limited to the question of title of the original landlord at the time when the tenant was let in. It was also laid down that as far as the derivative title is concerned, a tenant is entitled to show that the plaintiff has not, as a matter of fact, secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason which renders the transfer to be non-existent in the eye of law. The Court further observed that