SAHEED KHAN Vs. SHAREEF HUSSAIN

JUDGEMENT

(1.) This second appeal by appellants/defendants/tenants under section 100 of the Code of Civil Procedure is against the judgment and decree dated 29-7-2002 passed in Civil Appeal No. 17-A/2002 by 2nd Additional District Judge, Sehore arising out of judgment and decree dated 30-8-2001 passed in Civil Suit No. 84-A/1998 by 3rd Civil Judge Class-II, Sehore. The respondent/plaintiff/landlord filed a suit for eviction of the appellant/defendants/tenants on various grounds as prescribed under section 12(1) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act'). It was contended that respondent/plaintiff has purchased the shop in suit by a registered sale deed dated 30-5-1991. Original defendant No. 1 was tenant of the erstwhile owner of the shop. However, the original tenant sub-let the shop to the appellant No. 2. After purchase of the shop the respondent/plaintiff gave a notice terminating the tenancy of the defendants and asked for delivery of possession of the shop as also payment of arrears of rent which was due. Such claim made by respondent/plaintiff was contested by the appellants on the ground, inter aha, that the appellant No. 2 was not a tenant of the respondent/plaintiff. It was denied that the shop was purchased by the respondent/plaintiff. It was contended that on 30th May, 1991 the original owner of the shop Tahir Ali had not remained the owner of the said shop as he has agreed to sell the same to the appellants/defendants vide agreement dated 10-2-1991. The appellants were put in possession of the shop in their capacity as intending purchaser and not as tenant, therefore, there was no relationship of landlord and tenant between the appellants and said Tahir Ali after 10-2-1991. The suit as filed by respondent/plaintiff was not maintainable and, in fact, the suit was liable to be dismissed.

(2.) The trial Court framed the issues and recorded the evidence of the parties. After evaluation of the evidence available on record, learned trial Court held that the respondent/plaintiff has proved that he was the owner and landlord of the disputed shop, however, since it was found by learned trial Court that the respondent/plaintiff could not prove the fact that the rent was not paid by the appellants and that the suit shop was bona fidely required by respondent/plaintiff, the claim in that respect was rejected. The suit was decreed only on the ground that by denying the title of the respondent/defendant on the suit shop, the appellants/tenants have made themselves liable to be evicted. The suit was partially decreed on this count only.

(3.) The appellants preferred an appeal before learned lower Appellate Court on the various grounds. It was contended in the appeal that the trial Court has failed to see that the appellants were in possession of the suit shop on the strength of agreement to sale the shop, therefore, it was wrongly held by trial Court that the appellants were, in fact, the tenants of the respondent/plaintiff and since they have denied the title of the respondent/plaintiff in the shop in suit, they were liable to be evicted. Learned lower appellate Court after marshalling the evidence available on record and after examining the finding recorded by the trial Court dismissed the appeal and decreed the suit of the respondent/plaintiff against the appellants on the ground of sub-letting of the suit shop also. Feeling aggrieved by the judgment and decree of the first Appellate Court, this second appeal is filed which is admitted on 7-4-2003 on the following substantial question of law: