MANGILAL JHIGNURIYA Vs. SALIGRAM LAXMINARAYAN

JUDGEMENT

(1.) THIS second appeal is at the instance of the defendant-tenant seeking interference with the judgment and decree made by the trial court and affirmed by the lower appellate Court directing eviction by holding that the ground under section 12 (1) (a) of the M. P. Accommodation Control act, 1961 (here-in-after referred to as 'the Act') was fully established.

(2.) THE facts relevant for the purposes of this appeal are that the house of which the suit shop forms a part belonged to one Mukundrao according to the plaintiff. The suit house was mortgaged by Mukundrao and a decree was passed for recovery of the amount under the mortgage. After the death of mukundrao, his sons Narayanrao and Keshavrao were substituted in his place. In the auction sale held in execution of the decree for recovery of the amount under mortgage, the suit house was sold in favour of one Gopaldas. The plaintiff is the transferee from Gopaldas. The case of the plaintiff was that the defendant was the tenant of the original owner Mukundrao and, after his death, became the tenant of Narayanrao, his son. Since the suit house was sold in auction in favour of Gopaldas, who, in turn, sold the same to the plaintiff, the defendant became the tenant of the plaintiff on the same terms and conditions in which he held the suit shop on a monthly lease on payment of Rs. 12 p. M. as rent. The defendant failed to pay the arrears of rent and, therefore, the plaintiff earlier instituted a suit in the Small Causes Court for recovery of arrears of rent and the same was decreed. While giving his statement in the aforesaid Small Cause suit, the tenant defendant had stated that he was the tenant of Mukundrao and, after his death, accepted his son Narayanrao as his landlord. The small cause suit was decreed for arrears of rent in favour of the plaintiff Saligram and the amount under the decree was recovered by executing the said decree. Thereafter when the defendant again committed default in payment of rent the plaintiff served the defendant with a notice of demand and also terminated his tenancy according to the provisions of section 106 of the Transfer of Property Act and demanded vacant possession along with arrears of rent. It was not disputed that the defendant did not comply with the notice of demand of arrears of rent and did not pay arrears of rent within the period of two months from the date of service of notice of demand and also refused to vacate the suit premises. On the contrary, in reply to the notice it was stated that the plaintiff was not his landlord. Thereafter the plaintiff instituted the suit giving rise to this second appeal claiming eviction, arrears of rent and mesne profits by contending that the tenant was liable for eviction on the ground under section 12 (1) (a) of the Act i. e. , default in payment of arrears of rent despite service of notice of demand and also on the ground under section 12 (1) (c) inasmuch as the tenant by denying the title of the landlord had committed an act which was likely to affect the interest of the landlord adversely.

(3.) THE case of the defendant in the written statement was that since kamlabai, the daughter-in-law of Mukundrao, claimed herself to be owner by virtue of an unregistered gift deed alleged to have been executed by Mukundrao in favour of Radhabai and Radhabai having made a will in respect of the suit house in her favour, the auction sale in execution of the decree for recovery of the amount under the aforesaid mortgage was null and void, because mukundrao having already made the gift, though by an unregistered deed, had no authority to mortgage the suit house with anybody and since the mortgage was itself bad in law, the auction sale of the suit house in execution of the decree for recovery of the alleged amount of mortgage was also bad and not binding on her. The defendant also contended that he was already paying rent to Kamlabai since 1954. So far as the availability of the ground under section 12 (1) (c) of the Act was concerned, the case of the defendant was that he had not done any act adverse to the interest of the landlord. Simply by raising a contention that one other person, viz. , Kamlabai, claimed herself to be the landlord and was recovering the rent of the suit premises, it cannot be said that the defendant-tenant had put up a case of claiming the title of the tenanted premises with himself, or done any act adverse to the interests of the landlord. In respect of the ground under section 12 (1) (a) of the Act, the defendant-tenant contended that though he disputed the entitlement of the plaintiff to receive rent, he had made the deposit of the arrears of rent within one month without raising any dispute and that the amount so deposited may be allowed to be withdrawn by such person whom the Court may ultimately find to be the landlord. Under these circumstances, he was not liable for eviction on the ground under section 12 (1) (a) of the Act.