BALKRISHNA BIHARILAL Vs. USHABAI

JUDGEMENT

(1.) THIS is a second appeal filed by the defendant under Section 100 of CPC against the impugned judgment/decree, dated 2-8-1999, passed by learned 1st Additional District Judge, Khargone (West Nimar) in C. A. No. 5-A of 1998, which in turn arises out of Civil Suit No. 11-A of 1982, decided on 28-1-1997, by Civil Judge, Class II, Khargone. It was to begin with admitted for hearing only on first two substantial questions of law on 24-1-2000. However, at the time of final hearing of this appeal, this Court felt that some more substantial questions of law arise in appeal. Accordingly, by invoking powers under Section 100 (5) of CPC this Court at the instance of the appellant by reasoned order, dated 21-10-2002 and again by order dated 11-3-2003 framed substantial questions 3 to 8. This is how these substantial questions of law came to be framed, i. e. , two on 24-1-2000 and remaining on 21-10-2002 and 11-3-2003 :-

(2.) ONE Madhav Rao was the original owner of the suit accommodation which is situated in Khargone Town. He let out the suit house to one Balkrishna on a monthly rent of Rs. 50/- on 1-12-1950. Later on, a Kirayanama was also executed inter se parties on 24-11-1985. On 3-3-1964, Madhav Rao fell in need of money. He, therefore, took a loan of Rs. 15,000/- from Balkrishna and executed a mortgaged deed dated 3-3-1964 (Ex. P-1) in favour of two sons of Balkrishna, namely, Vijay Krishna arid Shayam Sunder mortgaging the suit house. Madhav Rao then effected partition of his several properties including the suit house which fell to the share of his one son Maheshchandra. This is how, Maheshchandra became owner of suit house. On his death, present plaintiffs who are widow, and two sons of Maheshchandra succeeded to suit house and became owners. In the meantime Madhav Rao also expired.

(3.) THE plaintiffs claiming to be the owners and landlords of the suit accommodation filed a suit out of which this appeal arises against the 2 sons of late Balkrishna for their eviction from the suit accommodation. It was averred that plaintiffs had on 25-6-1982 served notice on the defendants for redemption of mortgage by tendering the mortgage money and on satisfying the entire money, got the mortgage redeemed in plaintiffs favour on 8-6-1982. It was averred that plaintiff called upon the defendants to vacate the suit accommodation as the same was needed for bonafide requirement of plaintiffs one son - Pramod for doing business. It was averred that defendants have also created a sub-tenancy by parting away of the suit house in favour of one firm called Vijay Krishna Bal Krishna. Plaintiff thus, sought eviction of the defendant from the suit accommodation on two grounds namely, bonafide need of Pramod for doing business under Section 12 (1) (f) of the M. P. Accommodation Control Act and subletting of the suit house to one firm falling under Section 12 (1) (b) of the Act. The defendants denied existence of both the grounds pleaded by the plaintiff for eviction. It was also alleged that the suit under the rent law is not maintainable because there does not exists anymore relationship of landlord and tenant between the parties after the execution of mortgage deed (Ex. P-1 ). It was also denied that plaintiffs redeemed the mortgage by paying the mortgage money. Parties then led evidence. The Trial Court held that mortgage has not been redeemed, that no case for bonafide need as contemplated under Section 12 (1) (f) is made out, that no case of subletting as contemplated under Section 12 (1) (b) is made out. However, the Trial Court granted decree for mesne profit at the rate of Rs. 300/- per month against the defendants. It is against this decree, plaintiffs as also the defendants filed appeals, so far as plaintiffs were concerned, they contended in their appeal that they are entitled for an eviction decree on two grounds taken in the plaint, whereas the defendants in their appeal contended that no decree for mesne profit at the rate of Rs. 300/- per month could have been passed and that suit should have been dismissed in its entirety. By impugned common judgment, the learned First Appellate Judge allowed both the appeals. So far as defendants' appeal was concerned, the First Appellate Court set aside the decree granting mesne profit at the rate of Rs. 300/ -. So far as plaintiffs appeal was concerned, it was also allowed but in part resulting in grant of eviction decree on the ground falling under Section 12 (1) (f) ibid. It was held that plaintiffs require that suit accommodation for the bona fide need of plaintiffs son Pramod. The ground under Section 12 (1) (b) was negatived. It was also held that since plaintiffs had redeemed the mortgage by paying mortgage money to the defendants, the earlier tenancy had again revived and has come into existence entitling the plaintiffs to seek defendants eviction on any of the grounds enumerated under Section 12 (1) of the Act. It is against this judgment, the defendants have come up in second appeal. As stated supra, the appeal was admitted for final hearing on aforementioned substantial questions of law which were framed on two occasions.