Madhya Pradesh High Court
Chandra Kailash@Chandraprakash vs Satyanarayan Jaiswal on 27 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:7391
1 SA.No. 173 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 27th OF MARCH, 2025
SECOND APPEAL No. 173 of 2025
CHANDRA KAILASH@CHANDRAPRAKASH
Versus
SATYANARAYAN JAISWAL
Appearance:
Shri N.K. Gupta- Senior Advocate with Shri Saket Sharma- Advocate for
appellant.
Shri R.K. Upadhyay- Advocate for respondent.
JUDGMENT
This second appeal, under section 100 of CPC, has been filed against the
judgment and decree dated 9/12/2024 passed by the XXIV th District Judge,
Gwalior in Regular Civil Appeal No. 66/2022, as well as judgment and decree
dated 29/3/2022 passed by the IInd Civil Judge, Junior Division, Gwalior in RCSA
No.36000035/2015.
2. Appellant is the defendant/tenant, and the present appeal has been filed
against concurrent findings of fact. A decree for eviction has been passed against
the appellant.
3. The facts necessary for disposal of the present appeal, in short, are that the
plaintiff/respondent filed a suit claiming that he is the owner and in possession of
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House Nos. 57/626 and 57/629 situated at Roshnighar Road, Lashkar, Tahsil and
District Gwalior. On the ground floor of the aforesaid property, two shops are
situated, which shall be addressed as disputed property. It was pleaded that the
aforesaid shops were let out to the father of the defendant namely late Bholaram
by a rent note dated 6/6/1969. Defendant had paid the rent for the last time on
29/8/2013, which was up to 30/9/2013. Thereafter, with effect from 1/10/2013,
defendant has not paid the rent to plaintiff. In spite of a notice sent by plaintiff,
which was received by defendant on 6/1/2015, defendant has not paid the rent,
therefore, plaintiff is entitled for eviction of defendant on the ground of arrears of
rent i.e. under section 12(1)(a) of the Madhya Pradesh Accommodation Control
Act (for short “the Act”).
It was further pleaded that in reply to the notice issued by the plaintiff,
defendant has sent a reply dated 30/1/2015, in which he has denied the title of
plaintiff and claimed that the property is his ancestral property. Therefore, on the
ground of denial of title, plaintiff is also entitled for grant of decree under section
12(1)(c) of the Act.
It was further pleaded that father of defendant had taken the shop in
question from plaintiff on rent for doing business, and the defendant was doing
the business of sale and purchase of old tyres. However, for the last 1 year, the
shop has been under lock, and defendant has opened a new shop in Transport
Nagar, Gwalior, in the name and style of Bholaram Tyre Retending Works. It was
prayed that plaintiff is also entitled to the decree under section 12(1)(d) of the Act.
It was further pleaded that plaintiff is in bonafide need for non-residential
purposes as he wants to expand business in the name and style of Shyam
Automobiles and he does not have alternative and reasonably suitable
accommodation in the city of Gwalior. At present, plaintiff is running a shop in
the name and style of Shyam Automobniles in an accommodation which is only
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8×8 square feet in size adjoining to the suit shop. Since plaintiff does not have
sufficient space to display Auto parts, therefore, he is unable to run the business in
a convenient manner and accordingly, it was also prayed that plaintiff is entitled
for decree on the ground of bonafide need for non-residential purposes under
section 12(1)(f) of the Act.
4. Appellant/defendant filed his written statement and claimed that plaintiff is
not the owner of the property in dispute. Father of defendent had not taken the
shop from plaintiff on rent. In fact, the suit has been filed by plaintiff with an
intention to grab the property. After the death of Gomti Bai, there was no legal
representative to succeed her property. Gomti Bai had also not executed any Will
and, therefore, after the death of Gomti Bai, her property had vested in the State.
Although, plaintiff has declared the name of his father as Pritam Jaiswal whereas
the name of father of plaintiff is not Pritam Jaiswal. Plaintiff has no right to file
the suit. It was further pleaded that the Will claimed by plaintiff is suspicious.
Plaintiff has not proved that on the basis of which document he claims himself to
be the owner. Accordingly, it was prayed that the registered partition deed dated
20.10.1964 and sale deed dated 07.06.1962 are forged and concocted documents.
It was further pleaded that since plaintiff has no document to show his ownership,
therefore, there is no question of denial of title. Furthermore, the basement is also
in possession of defendant, which has not been disclosed by plaintiff in his suit.
Defendant is depositing rent in accordance with the provisions of S.13 of the Act.
To prove his bonafide need for non-residential purposes, plaintiff is required to be
the owner of property, but since he has not produced any document of title,
therefore, he is not entitled for decree of eviction. It was further pleaded that
plaintiff is also in possession of at least 25 more shops and, accordingly, he is in
possession of alternative and reasonably suitable accommodation.
5. The trial Court after framing issues and recording evidence of parties,
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decreed the suit on the ground that father of defendant was inducted a tenant.
Arrears of rent and denial of title were found to be not proved. It was held that
defendant is not using the suit premises and plaintiff is in bonafide need for non
residential purposes. The plaintiff also does not have any alternative and
reasonably suitable accommodation to cater his non residential needs and,
accordingly, it was held that plaintiff is entitled for decree of eviction on the
ground of S.12(1)(d) and 12(1)(f) of the Act, as well as, plaintiff is also entitled
for mesne profit to the tune of Rs.48,000/- and till the actual possession is handed
over to plaintiff, he will be entitled for rent at the rate of Rs.2000/- per month.
6. Being aggrieved by the judgment and decree passed by the trial Court,
appellant preferred an appeal, which too has been dismissed by judgment and
decree dated 9/12/2024.
7. Challenging the judgment and decree passed by the Courts below, it is
submitted by counsel for appellant that the Courts below were not right in holding
that plaintiff is owner of property in dispute. It was also submitted that Courts
below have committed material illegality by granting decree under section 12(1)
(d) and 12(1)(f) of the Act and proposed the following substantial questions of
law:-
“1. Whether both the courts below erred in applying the provisions of
section 90 of the evidence act with regard to the will and other
document hence, the judgment and decree passed by courts below is
vitiated?
2. Whether without proof of due attestation and execution of the will
exhibit P/9 the courts below committed error of law while holding that
the plaintiff is owner of the property?
3. Whether without proof of the will as required under the law the
finding given by courts below with regards to the right of the plaintiff
over the suit property is contrary to law?
4. Whether the courts below committed error of law while granting
decree u/s 12 (1) (d) of the M.P. Accommodation control Act without
finding that the suit premises was closed continuously one year?
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5. Whether the decree of eviction u/s 12(1) (f) have been granted
without considering the alternative accommodation available with the
plaintiff ?
6. Whether the courts below committed error of law while granting
decree on the basis of bonafide need of the plaintiff when the other
property available with the plaintiff was not pleaded by the plaintiff
and such concealment of act was based on malafide ?
7. Whether the courts below committed errог of law while applying the
provisions of section 114 (g) of the evidence act against the defendant?
8. Heard, learned counsel for appellant.
9. According to plaintiff, his mother Gomti Bai had purchased the property in
dispute from Smt. Bhagwati Bai by sale deed dated 7/6/1962 and later on account
of written partition dated 20/10/1964 which took place between Gomti Bai and
Mitthanbai, the suit shop went to the share of Gomti Bai. Plainitff is the sole legal
heir of Gomti Bai and accordingly Gomti Bai had also executed a Will dated
21/5/1971 in favour of plaitniff. Gomti Bai expired on 7/1/1997 and after death of
his mother, plaintiff became the owner and in possession of property in dispute.
10. Defendant/appellant himself had claimed that Gomti Bai was the owner of
property in dispute. It is the case of defendant that Gomti Bai had died without
any legal heirs, whereas it is the case of plaintiff that he is the sole surviving legal
representative of Gomti Bai. Furthermore, Gomti Bai had executed a registered
Will dated 21/5/1971 (Ex.P/9) in favour of plaintiff . Although, defendant had
tried to claim that plaintiff is not the son of Gomti Bai because of difference in the
name of father, but the said aspect has been taken note of by the trial Court, as
well as, appellate Court. The appellate Court, in paragraph 24 of judgment, has
held that in the Voter-ID (Ex.P/12), name of father of plaintiff is mentioned as
Pritam Singh and in election-list (Ex.P/13), names of Gomtibai Pritam Singh and
Satyanaryan Pritam Singh have been mentioned. In the death certificate of Gomti
Bai (Ex.P/14), her full-name is mentioned as Gomtibai Jaiswal and name of herSignature Not Verified
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husband is mentioned as Pritam Singh Jaiswal. In the registration certificate
(Ex.P/22) issued under the Shops and Establishment Act, name of father of
plaintiff is mentioned as Pritam Singh Jaiswal. In paragraph 25, after taking note
of various documents including Ex.P/10 to P/18, it was held by the appellate
Court that distinction in description of parties would not lead to a conclusion that
plaintiff is not the son of Gomti Bai and it was held that plaintiff is the owner of
disputed property, being legal representative of Gomti Bai.
11. Under these circumstances, once the Courts below have come to a
conclusion that plaintiff is the son of Gomti bai, then it was obligatory on the
party of appellant/plaintiff to challenge those findings to show that they are
perverse in nature. However, no arguments with regard to perversity of the said
findings were advanced by counsel for appellant.
12. So far as question of Will is concerned, it is suffice to mention here that
plainitff has not examined any attesting witness to prove the Will. However, it is
not necessary to discuss elaborately as to whether plainitff has proved the Will or
not, because once he is held to be the sole legal representative of Gomti Bai, then
even in the light of S.15 of the Hindu Succession Act, he has become owner of
property in dispute by way of succession. Defendant in his cross-examination has
admitted that he is not the owner of property in dispute, whereas in reply to the
registered notice sent by plaintiff, it was claimed that the property is his ancestral
property. Although in paragraph 18 of his cross-examination, defendant tried to
explain that since he had carried out repair work which was informed to his
counsel, therefore, by mistake it was mentioned that property is his ancestral
property, but admitted that reply (Ex.P/8) was issued under his instructions. He
also claimed that signatures of his father on the rent note (Ex.P/21) are more or
less similar. He admitted that the shop in question was taken by his father on rent
from Gomti Bai. In paragraph 19, it was admitted by the defendant that on certainSignature Not Verified
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occasions, Gomti Bai used to send plaintiff to collect rent, but immediately he
tried to wriggle out of what he had admitted and claimed that out of fear he was
making payment of rent to plaintiff. He further admitted that for the last time he
had paid Rs.2000/- to plaintiff by way of rent. He admitted that on one or two
occasions rent was enhanced on the instructions of plaintiff. However, again he
tried to explain that since he was afraid of plaintiff, therefore, he was accepting
the dictates of plaintiff. He admitted that plaintiff used to issue receipt of rent.
When defendant was shown the rent receipts issued by plaintiff, then he admitted
that signatures on rent receipt (Ex.P/17) appears to be of his son. He admitted that
rent receipts (Ex.P/19 and P/20) were issued by plaintiff to him. He claimed that
Ex.P/19 bears signatures of his son and again tried to wriggle out of his admission
and claimed that signatures appear to be that of his son. He also admitted
signatures of his son on Ex.P/15 and P/16. He further admitted that he has not
produced any document to show that at present, he is running any business from
the shop in question. He further admitted that there is an electricity meter installed
in the shop, but was not in a position to show that what are the electricity charges
and claimed that generally he does not use electricity. He further admitted that he
opens the shop at about 11-12 in the morning and thereafter goes back to his shop
which is situated in Transport Nagar to bring back the old tyres and sell them
from the shop in question and close down the shop at 5 PM. He further claimed
that only 1 tubelight and 1 fan is installed in the shop which too is not in working
condition. He further admitted that in the electricity bills (Ex.P/23 to P/29) no
electricity consumption is being reflected. He further admitted that his shop is not
registered under the Shops and Establishment Act. He further admitted that he has
not got any cash-memo printed for the shop which according to him is being run
in the property in dispute.
13. Thus, it is clear that appellant has failed to prove that he is utilizing the
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shop in question and, therefore, the decree was rightly granted by Court below
under S.12(1)(d) of the Act. Furthermore, once appellant had admitted that he was
making payment of rent to plaintiff, then it is clear that plaintiff was
landlord/owner of the property in dispute. Although in the written statement,
defendant had claimed that plaintiff is having 25 other shops, but in paragraph 35
of his cross-examination, he has admitted that he has not filed any document to
show that plaintiff is in possession of 25 vacant shops. Again in paragraph 39 of
the cross-examination, he has stated that 20-22 shops are lying vacant. In
paragraph 40, he admitted that in the shop which is adjoining to the disputed
shop, plaintiff is running a shop in the name and style of Shyam Automobiles.
Again he admitted that he has not produced any document to show that 20-25
vacant shops are in possession of plaintiff. In paragraph 45, he further admitted
that he has not filed any document to show that name of father of plaintiff is
Ramsharan Jaiswal and not Pritam Jaiswal.
14. Thus, it is clear that defendant himself has admitted that disputed shop is
adjoining to the shop from where plaintiff is running his business in the name and
style of Shyam Automobiles. It is the case of plaintiff that he is running his shop
from a premises of only 8 x 8 square feet. Thus, if both the Courts below have
held that plaintiff is in bonafide need for non residential purposes, then it cannot
be said that the said finding is dehors the record. Furthermore, even if an
erroneous finding of fact has been recorded by the Courts below, then the same
cannot be reversed by this Court in exercise of power under S.100 of CPC.
15. The Supreme Court in the case of Dinesh Kumar v. Yusuf Ali reported in
(2010) 12 SCC 740 has held as under:-
13. A second appeal does not lie on the ground of erroneous findings
of facts based on appreciation of the relevant evidence. The High
Court should not entertain a second appeal unless it raises a
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further the clear intendment of the legislature and not to frustrate it
by ignoring the same.
14. In Ram Prasad Rajak v. Nand Kumar & Bros. [(1998) 6 SCC 748
: AIR 1998 SC 2730] , this Court held that existence of the substantial
question of law is a sine qua non for the exercise of jurisdiction under
Section 100 of the Code and entering into the question as to whether
the need of the landlord was bona fide or not, was beyond the
jurisdiction of the High Court as the issue can be decided only by
appreciating the evidence on record.
15. There may be a question, which may be a “question of fact”,
“question of law”, “mixed question of fact and law” and “substantial
question of law”. Question means anything inquired; an issue to be
decided. The “question of fact” is whether a particular factual
situation exists or not. A question of fact, in the realm of
jurisprudence, has been explained as under:
“A question of fact is one capable of being answered by
way of demonstration–a question of opinion is one that
cannot be so answered. The answer to it is a matter of
speculation which cannot be proved by any available
evidence to be right or wrong.”
(Vide Salmond on Jurisprudence, 12th Edn., p. 69, cited in Gadakh
Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [(1994) 1 SCC 682]
, at SCC p. 705, para 34.)
16. In RBI v. Ramakrishna Govind Morey [(1976) 1 SCC 803 : AIR
1976 SC 830] this Court held that whether the trial court should not
have exercised its jurisdiction differently, is not a question of law or a
substantial question of law and, therefore, the second appeal cannot
be entertained by the High Court on this ground.
17. In Kulwant Kaur v. Gurdial Singh Mann [(2001) 4 SCC 262] this
Court held that the question whether the lower court’s finding is
perverse may come within the ambit of substantial question of law.
However, there must be a clear finding in the judgment of the High
Court as to perversity in order to show compliance with the
provisions of Section 100 CPC. Thus, this Court rejected the
proposition that scrutiny of evidence is totally prohibited in the
second appeal.
18. In Sheel Chand v. Prakash Chand [(1998) 6 SCC 683 : AIR 1998
SC 3063] , this Court held that question of reappreciation of evidence
and framing the substantial question as to whether the findings
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relating to the factual matrix by the court below could vitiate due to
irrelevant consideration and not under law, being question of fact
cannot be framed.
19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa
[(2000) 6 SCC 120] this Court held that it is not permissible for the
High Court to decide the second appeal by reappreciating the
evidence as if it was deciding the first appeal unless it comes to the
conclusion that the findings recorded by the court below were
perverse.
20. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC
1428] this Court held that it is permissible to interfere even on
question of fact but it has to be done only in exceptional
circumstances. The Court observed as under : (SCC pp. 637-38, para
6)
“6. … While scrutiny of evidence does not stand out to be
totally prohibited in the matter of exercise of jurisdiction in
the second appeal and that would in our view be too broad a
proposition and too rigid an interpretation of law not worthy
of acceptance but that does not also clothe the superior courts
within jurisdiction to intervene and interfere in any and every
matter–it is only in very exceptional cases and on extreme
perversity that the authority to examine the same in extenso
stands permissible–it is a rarity rather than a regularity and
thus in fine it can be safely concluded that while there is no
prohibition as such, but the power to scrutiny can only be had
in very exceptional circumstances and upon proper
circumspection.”
21. In P. Chandrasekharan v. S. Kanakarajan [(2007) 5 SCC 669]
this Court reiterated the principle that interference in the second
appeal is permissible only when the findings are based on misreading
of evidence or are so perverse that no person of ordinary prudence
could take the said view. More so, the Court must be conscious that
intervention is permissible provided the case involves a substantial
question of law which is altogether different from the question of law.
Interpretation of a document which goes to the root of title of a party
may give rise to a substantial question of law.
22. In Shakuntala Chandrakant Shreshti v. Prabhakar Maruti
Garvali [(2007) 11 SCC 668 : (2008) 1 SCC (L&S) 964] this Court
considered the scope of appeal under Section 30 of the Workmen’s
Compensation Act, 1923 and held as under : (SCC pp. 679-80, paras
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39-40 & 42)
“39. Section 30 of the said Act postulates an appeal
directly to the High Court if a substantial question of law is
involved in the appeal.
40. A jurisdictional question will involve a substantial
question of law. A finding of fact arrived at without there
being any evidence would also give rise to a substantial
question of law. …
***
42. A question of law would arise when the same is not
dependent upon examination of evidence, which may not
require any fresh investigation of fact. A question of law
would, however, arise when the finding is perverse in the
sense that no legal evidence was brought on record or
jurisdictional facts were not brought on record.”
Similar view has been reiterated by this Court in Anathula
Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594] .
23. In Rishi Kumar Govil v. Maqsoodan [(2007) 4 SCC 465] this
Court while dealing with the provisions of Section 21(1)(a) of the
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 and Rule 16 of the U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Rules, 1972, held that the bona fide personal need
of the landlord is a question of fact and should not be normally
interfered with.
24. There is no prohibition to entertain a second appeal even on
question of fact provided the Court is satisfied that the findings of the
courts below were vitiated by non-consideration of relevant evidence
or by showing erroneous approach to the matter. [Vide Jagdish
Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC
1604] , Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353] , Satya
Gupta v. Brijesh Kumar [(1998) 6 SCC 423] , Ragavendra
Kumar v. Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000 SC
534] and Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285] ]
25 [Ed. : Para 25 corrected vide Official Corrigendum No.
F.3/Ed.B.J./68/2010 dated 9-7-2010.] . Thus, the law on the subject
emerges to the effect that second appeal under Section 100 CPC is
maintainable basically on a substantial question of law and not on
facts. However, if the High Court comes to the conclusion that the
findings of fact recorded by the courts below are perverse being
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based on no evidence or based on irrelevant material, the appeal can
be entertained and it is permissible for the Court to reappreciate the
evidence. The landlord is the best judge of his need, however, it
should be real, genuine and the need may not be a pretext to evict the
tenant only for increasing the rent.”
16. Considering the totality of facts and circumstances of case, this Court is of
considered opinion that no perversity could be pointed out by counsel for
appellant. As no substantial question of law arises in the present appeal,
accordingly, the appeal fails and is, hereby, dismissed.
(G.S. Ahluwalia)
Judge
(and)
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