GYAN KUNWAR Vs. GOPALDAS

JUDGEMENT

(1.) MARDAN Singh defendant-appellant died during the pendency of this appeal. His legal heirs have been brought on the record. A suit was filed against him on the grounds falling under Section 12(1)(a)(i) of the M.P. Accommodation Control Act, 1961. It was pleaded that earlier a suit was filed on the ground that the defendant was in arrears of rent and that this suit was decreed. It was however stated that an appeal was preferred and the first appellate Court set aside the judgment and decree passed by the trial Court. It was stated that the plaintiff had preferred an appeal in the High Court. It was further stated that without prejudice to the appeal preferred a second suit out of which this appeal has arisen is being filed. In this it was pleaded that the defendant was to pay arrears w.e.f 1st December 1967 to 30th June, 1977. It was also pleaded that another house owned by the defendant- appellant had become available to him and it was pleaded that this has furnished an additional ground to the landlord to seek eviction. The defendant, however, denied the claim of the plaintiff-respondent and pleaded that a house was constructed by him and his son Shivram Singh about 21 years before the filing of the suit. The portion falling to the share of the defendant was let out much earlier to the creation of the tenancy of the premises in dispute. It was further pleaded that the claim with regard to arrears of rent was barred by limitation.

(2.) THAT so far as the case of the landlord that the defendant-appellant is in arrears and has failed to pay the same within time is concerned the finding recorded by the Courts below cannot be taken exception to. In para No. 3 of the plaint the landlord had categorically stated that the appellant is to pay rent with effect from 1st Feb. 1965 to 3rd Nov. 1967. In para 4 of the plaint it was again stated that the appellant was to pay arrears w.e.f. 1st Dec. 1967 to 30th June, 1977 and that a notice in this regard was served on the defendant-appellant on 24.7.1977. In the written statement the specific averments made in para No. 3 of the plaint were not denied. So far as the averments contained in para No. 4 are concerned, the written statement merely states that no notice was received by the defendant-appellant. The fact that defendant was in arrears from 1.12.1967 to 24.7.1977 was not denied. The only question thus arises is whether a notice was duly served on the defendant- appellant as alleged in para No. 4 of the plaint.

(3.) THAT so far as the second ground with regard to the deceased defendant having acquired vacant possession of an alternate accommodation is concerned, even on this count the finding recorded by the Courts below cannot be taken exception to. D.W. 2 Rup Singh stepped into the witness-box and stated that the defendant-appellant and his son own a house. This house is located in Bhind. Ex. D/2 is an agreement which indicates that the deceased defendant let out the premises to Assistant Soil Conservation Department. It is mentioned therein that this is with effect from 26.12.1963 to 31.3.1968. This is signed by the Assistant Soil Conservator on 29.11.1967. It may, however, be seen that so far as Ex. D/1 is concerned, it is w.e.f. 3.3.1976. The fact that one portion of the house was let out in 1976 indicates that vacant accommodation was available with the landlord. The plea taken by the defendant/appellant that there was a partition of the house and that he is not concerned with the renting out of the premises by his son cannot be of any avail. It is pertinent to notice that the suit in this case was filed in Nov. 1977. The defendant appellant had made a crude attempt to bring on record Ex. D/2 which is dated 29th Nov. 1967 with a view to establish that he created the tenancy on 26.12.1963. Had any tenancy been created on 26.12.1963 then the original lease deed entered into with Government department should have been produced. The appellant had neither produced the original partition deed nor has he produced any document indicating the creation of the lease in 1963. As such, the finding recorded by the Courts below with regard to the existence of a ground of eviction under Section 12(1)(i) of the Act calls for no interference.