BUDHU LAL Vs. DULLE KHAN

JUDGEMENT

(1.) APPELLANT 's counsel Shri N.K. Jain has made a very reasonable and short prayer which is not answerable. Indeed, after reading Mathuralal'case, AIR 1971 SC 310 : 1970 RCR 318, as also a decision of this Court in the case of Prafullachandra v. Rajba, AIR 1964 M.P. 129. I found that I have no other option to deal with this matter except by way of making an order of remand for deciding a single and short question.

(2.) I an not at all satisfied that there is any reason or ground on which the decree passed by the lower appellate Court, refusing respondent defendant's ejectment is in any manner challengeable in this appeal. I have gone through the judgment of the trial Court as well and in my view, the lower appellate Court rightly held that relationship of landlord and tenant between the parties not having been established within the meaning of Section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961, for short, the 'Act', the plaintiff was not entitled to evict the defendant from the suit premises in as much as he was not a "tenant" of the plaintiff. This view was taken by the lower appellate Court, considering the entire gamut of the evidence; particularly plaintiff's admission that there was a mortgage-deed in respect of the suit property. My attention is drawn to the written statement of the defendant wherein at para 3, in categorical terms, the defendant took the plea that he was not a tenant under the plaintiff in respect of the suit property; that a rent-note was executed contemporaneously with the mortgage-deed : and that the rent-note was not actually for rent, but it was for interest for the loan advanced. The case of the defendant having been admitted in his evidence by the plaintiff it was the bounden duty of the trial Court to non-suit the plaintiff in so far as the relief of defendant's eviction was concerned. Unfortunately for the defendant, the trial Court totally misdirected itself in ignoring the defendant's defence taken in categorical terms in written and admission of his case by the plaintiff and holding that relationship of landlord and tenant between the parties was established into fact on the basis of the rent-note.

(3.) BECAUSE the trial Court ignored and over-looked the legal position manifested in Section 2(i) as also Section 12()1) of the Act, its finding was evidently not conclusive and binding on the lower appellate Court and it is not binding either on this Court. On the contrary, the finding of the lower appellate Court, though on different ground, to the effect that the defendant was not a tenant of the plaintiff, liable to be evicted under Section 12(1)(a) of the Act, in my view, is not open to challenge in this Court. I say so because of plaintiff's admission in his evidence to which I have adverted earlier. The fact that there existed for the suit property a mortgage-deed having been admitted by the plaintiff, there could be no escape from the conclusion that the plaintiff's claim for defendant's eviction as "tenant" for non-payment of "rent" was not tenable in law. I propose to extract also the provisions of Section 12(1)(a) which, in my opinion, expressly circumscribes a prophet landlord's right to recover possession of any accommodation.