RASHID AND ANOTHER Vs. GUL MOHAMMAD @ GULLOO PAHALWAN

JUDGEMENT

(1.) This second appeal filed under section 100 of the Civil Procedure Code, 1908 (in short 'CPC') is directed against the judgment and decree dated 24.09.2010 passed in Regular Civil Appeal No. 10-A/2010 whereby the lower appellate court has affirmed the judgment and decree passed in Civil Suit No. 127-A/09 decided on 30.11.2009.

(2.) The respondent/plaintiff instituted a civil suit seeking eviction under section 12(1)(f) of M.P. Accommodation Control Act, 1961 (in short 'Act of 1961'). The stand of the plaintiff was that Late Abdul Razak, father of present appellant was given the disputed premises on rent which was enhanced upto Rs. 700/- p.m. The plaintiff pleaded that he is owner of the suit premises which is required for his unemployed son Mohd. Zamal, who intends to carry-out the business of sale of auto parts etc. The eviction was prayed for on the ground that the plaintiff had no other reasonable non-residential accommodation in the city of Bhopal. The appellants filed the written statement before the court below. They categorically denied that the plaintiff is the owner of the suit premises. Thereafter, the court below framed the issues, recorded evidence of parties and by judgment and decree dated 31.01.2006 allowed the aforesaid civil suit. Aggrieved, the appellants filed RCA under section 96 of the CPC before the court below. The said appeal was dismissed on 24.12.2010.

(3.) Mrs. Shobha Menon, Senior Counsel assisted by Shri Rahul Choubey, counsel for the appellants contended that for seeking a decree under section 12(1)(f) of the Act of 1961, the plaintiff was required to establish that he was the landlord as well as 'owner' of the suit property. In view of the categorical denial in the written statement about ownership of suit premises by the plaintiff, the court below has erred in passing the decree in favour of the plaintiff. It is further urged that the plaintiff gave power of attorney to his son who, in turn, entered the witness box and deposed on behalf of plaintiff. Learned Senior counsel argued that no doubt, plaintiff can give such power of attorney to his son but while making statement, the power of attorney holder could have deposed only about such factual things which were within his knowledge. If any statement of fact was deposed which was beyond his personal knowledge, such evidence is wholly impermissible and unreliable. It is submitted that admittedly, as per the case of the plaintiff, the alleged partition on the strength of which plaintiff claimed title of the suit property, took place more than 35 years back whereas the age of the deponent/power of attorney holder was less than 35 years on the date of deposition. Thus, the factum of partition could not have been deposed by him and such deposition is totally untrustworthy. Hence, factum of ownership is not proved. In support of said contention reliance is placed on Janaki v. Indus Ind Bank, 2005(2) R.C.R.(Civil) 570 : 2005 (2) SCC 217 and Man Kaur (dead) by Lrs. v. Hartar Singh Sangha, 2011(1) R.C.R.(Civil) 189 : 2010 (10) SCC 512.