GOVIND PRASAD GEETE Vs. VIDYAWATI

JUDGEMENT

(1.) THIS revision under Section 115 of Civil Procedure Code is directed against the order dated 12-1-1998 passed by 1st Civil Judge Class-I, Khandwa in C.S. No. 36-A/95.

(2.) LATE Shambhoo Prasad Pathak and non-applicant Gajanan Pathak real brothers are owners of suit house, described in Schedule-A of the plaint. Admittedly applicant was inducted into the tenancy on monthly rent of Rs. 50/- per month. Late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak jointly instituted C.S. No. 62-A/81 (Annexure/D) before the 3rd Civil Judge Class-II, Khandwa seeking eviction of tenant/applicant from the suit house under Section 12(1)(a)(c) of the MP Accommodation Control Act (hereinafter referred to "the Act" for short). Filing written statement (Annexure/E), the applicant contended that two brothers late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak owned several houses in the city. Late Shambhoo Prasad having sold his share of the property long back, left the city and non-applicant Gajanan Pathak alone was the owner. Non-applicant Gajanan Pathak by executing agreement dated 25-6-1974 agreed to sell the suit house to the applicant for a sum of Rs. 15,000/-. Since then the applicant seized (ceased ?) to be the tenant of late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak. The Civil judge deciding the suit aforesaid C.S. No. 62-A/81 vide judgment dated 4-8-1984 (Annexure G) on the basis of agreement dated 25-6-1974 held that relationship of landlord and tenant between the parties has not been proved. Therefore, dismissed the suit C.S. No. 62-A/81 seeking eviction of tenant/applicant. Being aggrieved, landlord late Shambhoo Prasad and non- applicant Gajanan Pathak preferred C.A. No. 27-A/89 before the IInd ADJ, Khandwa. The First Appellate Court vide judgment dated 7-11-1989 (Annexure-H) held that the applicant even after execution of alleged agreement dated 25-6- 1974 by one of the. co-owner non-applicant Gajanan Pathak only, continues to be the tenant of landlords late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak. Further, the suit seeking eviction and recovery of arrears of rent accordingly has been decreed. Being aggrieved by the judgment-decree aforesaid in C.A. No. 27-A/89 tenant/applicant Preferred S.A. No. 534/89 before this Court. Since the arrears of rent as claimed by landlords late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak was paid by applicant, ground seeking eviction under Section 12(1)(a) of the Act did not exist. Dealing with the ground of eviction under Section 12(1)(c) of the Act relating to disclaimer of title on the basis of alleged agreement dated 25-6-1974, it has been held that the facts relating to agreement dated 25-6-1974 were stated in the written statement without any ulterior motive. Therefore, allowing the appeal, C.S. No. 62-A/81 seeking eviction has been dismissed vide judgment (Annexure-I).

(3.) IT is contended that in suit C.S. No. 62-A/81 vide judgment dated 4-8-1984 (Annexure-G) the Court held that with reference to agreement dated 25-6-1974 said to have been executed by non-applicant Gajanan Prasad Pathak only, relationship of landlord and tenant between the parties extinguished and applicant's possession of suit house shall be deemed to be a possession in part performance under Section 53-A of the T.P. Act. Whatever may the judgment of First Appellate Court in C.A. No. 27-A/89 (Annexure-H) the finality was attached vide judgment of this Court in S.A. No. 534/89 (Annexure-I) although there is nothing specific in the judgment (Annexure-I) that the relationship of landlord and tenant infact extinguished, the suit C.S. No. 62A/81 since was finally dismissed, the judgment would operate res judicata. To support the contention Pawan Kumar Gupta v. Rochiram Nagdeo, 1999(1) RCR(Rent) 483 (SC) : AIR 1999 SC 1823 has been read as under :-