SHANTI DEVI Vs. JAGDAMBA PRASAD KHANDELWAL

JUDGEMENT

(1.) THIS second appeal is filed by appellants against the judgment and decree dated 21.3.2006 passed by the District Judge, Gwalior in Civil Appeal No. 51 -A/2005, whereby the learned First Appellate Court reversed the judgment and decree dated 30.9.2005 passed by Sixth Civil Judge, Class-II, Gwalior in Civil Suit No. 133-A/2004 and decreed the suit of the plaintiff under section 12 (1) (a) and 12 (1) (c) of the M.P. Accommodation Control Act.

(2.) BRIEF facts of the case are that the suit house No. 23/962 is owned by father of the respondent Jagdamba Prasad Khandelwal. On 11.9.1961 (Ex. P-8). Suit shop was given on rent to Banshidhar husband of the appellant No. 1 Shantidevi and his sons appellants No. 2 to 6. During the life time the appellants paid the rent to Jagdamba Prasad Khandelwal. On 27.8.1973 Jagdamba Prasad Khandelwal died. He executed a Will Ex. P-3 dated 25.8.1973 in favour of his wife Smt. Katori Bai and by virtue of said Will she became owner of the suit shop. She after death of her husband executed a rent not on 14.1.1983 (Ex. P-9). After the death of Jagdamba Prasad Khandelwal, Banshidhar husband of the appellant No. 1 and father of appellants No. 2 to 6 paid the rent to Smt. Katori Bai and last rent was paid in the month of March 1991 at the rate of Rs. 500/- per month and thereafter appellant stopped paying the rent. On 18.3.1992 Smt. Ramkatori Bai gave a registered notice and terminated the tenancy of the appellants and asked to pay the rent from April, 1991 at the rate of Rs. 500/- per month and deliver possession of the suit shop. No rent was paid nor possession was delivered and therefore, she filed a suit on 16.11.1992 for eviction on the ground of arrears of rent under section 12(1) (a), 12(1) (c) and 12 (1) (f) of the M.P. Accommodation Control Act, 1961. The appellants filed their written statements denied the ownership of the plaintiff in the suit house and averred that appellant No. 3 Ramdas is tenant of Radheshyam who is second son of the plaintiff. As per rent note executed between them appellant No. 3 Ramdas is paying the rent to Radheshyam who had been issuing the rent receipts. It is also averred that Banshidhar father of the appellant No. 3 was tenant of Jagdamba Prasad Khandelwal and after his death suit shop was given to Ramdas the appellant No. 3 and he is paying the rent. The appellant denied the rent note dated 14.1.1983 Ex. P-9. It is also averred that suit between the Ramkatori Bai and her sons regarding partition of the suit house is going on and since Radheshyam disputed the ownership and therefore, plaintiff is not the owner of the suit shop.

(3.) THE appellants challenged the said judgment by filing a first appeal before the Lower Appellate Court during the pendency of the appeal they filed an application under Order 41 Rule 27 of CPC vide IA No. 1 for taking notarized affidavit of Rahul Tiwari and Mohan Shivhare on record. The appellants also filed an application for taking sale deed dated 31.10.2005 executed by Radheshyam in favour of the appellant on record. The respondents opposed the said application and averred that suit for partition filed by Radheshyam vide Civil Suit No. 41-8/2005 was dismissed on 12.1.2006 by the Sixth Additional District Judge, Gwalior and Radheshyam has no right to transfer the suit property. The respondents filed another application for taking certified copy of order dated 12.1.2005 passed by Sixth Additional District Judge, Gwalior in Civil Suit No. 43- A/06 by which suit of the partition of Radheshyam was dismissed on record. During pendency of the civil suit original suit Ramkatori Bai died on 20.7.1998. The respondents filed an application for substitution of his name on the basis of Will dated 31.12.1991 (Ex. P-2) executed by Ram Katori Bai in his favour and therefore, his name was substituted in place of Ram Katori Bai as he on the basis of said Will became the owner of the said suit shop. Lower Appellate Court rejected all the three applications i.e. IA No. 1, IA No. 3 and IA No. 5. While rejecting the application by the learned District Judge it is held that First Appeal No. 79/06 is pending before the High Court and therefore, it cannot be said that the judgment and decree dated 12.1.2006 is finally decided about the right of Radheshyam. In respect of IA No. 3 the learned District Judge has held that the question whether Radheshyam is competent to sell the suit property is not dispute in the present appeal. In the present appeal the Court has to see whether appellant No. 4 is tenant of plaintiff and whether Radheshyam is co-owner of the suit house and whether one of the co-owner can file a suit for ejectment and therefore, the relationship of landlord and tenant between the appellants and respondent has got to be determined.