BHAGIRATH PRASAD Vs. AVINASH BIHARI MISHRA

JUDGEMENT

(1.) This second appeal has been preferred under Section 100 of Civil Procedure Code by the appellants/defendants against the judgement and decree dated 21.09.2017 passed in Civil Appeal no. 64A/2016 Bhagirath Prasad Rathore & others vs. Avinash Bihari by Third Additional District Judge, Gwalior, whereby the judgment and decree dated 2.7.2016 passed by Thirteenth Civil Judge Class-2, Gwalior, in Civil Suit No. 470071-A/2014 (Avinash Bihari vs. Bhagirath Prasad Rathore) has been set aside and decree of eviction has been passed in favour of the respondent/plaintiff.

(2.) The respondent/plaintiff filed a suit against appellants under Sections 12(1)(a), 12(1)(e) and 12(1)(f) of the MP Accommodation Control Act, 1961 (for brevity, the 'Act'). The Trial Court dismissed the suit under Sections 12(1)(a), 12(1)(e) and 12(1)(f) of the Act. Against which, civil appeal was filed and the First Appellate Court though dismissed the suit under Section 12(1)(a) of the Act, but decreed the suit under Sections 12(1)(e) and 12(1)(f) of the Act. Feeling aggrieved thereby, the appellants/defendants have preferred this second appeal.

(3.) Learned counsel for the appellants contended that the judgment and decree passed by the First Appellate Court is contrary to the documents and evidence available on record. From the pleadings and Bhagirath Prasad Rathore & others vs. Avinash Bihari documentary evidence adduced by the plaintiff, it is evident that the property in dispute was given on rent as an open plot to the appellants/defendants and the defendants with the help of traders and government grant had constructed the house over the said plot and were occupying the same, thus no vacant possession of the house could be given and the First Appellate Court has committed error in law while passing the decree of eviction. It is further contended that the First Appellate Court has erred in ignoring the conduct of the parties. The evidence of the parties has not been properly appreciated. The Appellate Court has erred in passing the decree under Section 12(1)(e) of the Act on the basis of pleadings which were not proved by the plaintiff. The plaintiff is having suitable alternative accommodation. Therefore, the judgment and decree passed by the First Appellate Court is liable to be set aside.