Madhya Pradesh High Court
Vinod Kumar vs Dashrath Prasad on 6 February, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 S.A. No. 608/2007
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 6th OF FEBRUARY, 2025
SECOND APPEAL NO. 608 OF 2007
VINOD KUMAR JAISWAL
Versus
DASHRATH PRASAD JAISWAL
Appearance:
Shri Ashok Lalwani, Senior Advocate with Shri Abhishek Singh, Advocate for
appellant.
No one is appearing for respondent despite service of notice and representation
through counsel.
..............................................................................................................................................................
JUDGMENT
This second appeal has been preferred by the appellant/plaintiff
challenging the judgment and decree dtd.19.02.2007 passed by 3rd
Additional District Judge (Fast Track Court), Katni in Civil Appeal No.
50-A/2006 reversing the judgment and decree dtd.30.07.2004 passed by
3rd Civil Judge Class-I, Katni in Civil Suit No.39-A/2004 whereby trial
Court decreed appellant/plaintiff’s suit for eviction holding the
respondent/defendant to be licensee and in appeal filed by defendant, the
suit has been dismissed vide impugned judgment and decree
dtd.19.02.2007.
2 S.A. No. 608/2007
2. In short the facts are that the appellant/plaintiff had instituted a suit
for eviction and arrears of rent with the allegations that the plaintiff is
owner of the rented premises, which was given to defendant 1-Harprasad
(who died during the suit and his name was deleted by the plaintiff) for
non-residential purpose on rent of Rs.40/- per month, but he had sublet
the premises to the defendant 2-Dashrath Prasad, in which he is carrying
out a paan shop. In the east there is a shop (admeasuring 7’x30′) of the
plaintiff in which he is carrying out his business of manufacturing trunk
and drum, which is not sufficient for the plaintiff’s business, hence the
plaintiff is in need of the suit shop for his business and there is no other
alternate accommodation available with him in the township of Katni. It
is alleged that on 03.04.1984, a notice was issued to the defendant, but
was refused to accept by him and the defendant 1 is in arrears of rent
w.e.f. 01.04.1984. By way of amendment, it is alleged that if the Court
comes to conclusion that defendant-Dashrath Prasad is not tenant of the
plaintiff then by issuing permanent injunction, he be evicted from the
premises. With these allegations, the suit was filed.
3. The defendant-Dashrath Prasad only appeared and filed written
statement denying the plaint allegations and contended that he is not
tenant of the plaintiff, as no agreement of tenancy was executed in
between plaintiff and Harprasad. It is contended that suit premises was of
3 S.A. No. 608/2007
the possession of Lt. Jwala Prasad, who kept his sister’s son Dashrath
Prasad with him in the year 1960, who was taking care of flour mill’s
business of Jwala Prasad and after death of Jwala Prasad in the year 1976,
he received the shop as his legal heir. It is contended that in the year 1977
Kashi Prasad Jaiswal (father of plaintiff) got the adjacent portion from
defendant Dashrath himself for the business of plaintiff in which he is
doing manufacturing business of trunk and drum. It is contended that
Harprasad never remained in possession and defendant-Dashrath never
received possession of the premises from Harprasad as sub-tenant or
otherwise. It is also contended that he never received any notice sent by
the plaintiff, nor the plaintiff is in need of the rented premises for alleged
business and the defendant is not liable to make any payment of rent. It is
also contended that the plaintiff is not entitled for relief of possession in
the garb of decree of permanent injunction. On inter alia contentions, the
suit was prayed to be dismissed.
4. On the basis of pleadings of parties, trial Court framed issues and
recorded evidence of the parties. In support of his case the plaintiff
examined himself-Vinod Kumar Jaiswal (PW/1) and produced documents
(Ex.P/1 to P/6). The defendant also examined himself i.e. Dashrath
Prasad (DW/1), however he did not produce any documentary evidence.
Upon consideration of the same, trial Court vide judgment and decree
4 S.A. No. 608/2007
dtd.30.07.2004 held that the plaintiff is owner of suit premises but while
deciding issue no. 2 to 5 held that the relationship of landlord and tenant
between plaintiff and Harprasad is not established and it is also not
established that Harprasad without prior permission of plaintiff, sublet the
premises to defendant-Dashrath Prasad Jaiswal. It is also held that
plaintiff is not in need of the suit accommodation for his business and that
it was not given to the defendant for non-residential purpose. However, in
alternate the Court held that the defendant being licensee, the plaintiff is
entitled for possession of suit accommodation by decree of permanent
injunction.
5. Against the aforesaid judgment and decree of trial Court defendant-
Dashrath preferred regular civil appeal, which by the impugned judgment
and decree dtd.19.02.2007, was allowed and judgment and decree of trial
Court was reversed by holding that neither there is any relationship of
landlord and tenant in between the parties nor there is any relationship of
licensor and licensee and the gift deed (Ex.P/1) being a suspicious
document, plaintiff is not entitled for decree of eviction.
6. Against the aforesaid judgment and decree, instant second appeal
was filed, which came in hearing on 29.11.2013 and was admitted on the
following substantial questions of law:-
“A.Whether in view of the admission made by the
respondent/licensee regarding the landlord-ship of the appellant,
5 S.A. No. 608/2007
the learned lower appellate court was just and proper in reversing
the decree of eviction granted by the trial court in favour of the
appellant?
B. Whether it was rightly held by the lower appellate court that the
respondent was not the licensee of the appellant though the said
fact was clear from the evidence available on record?”
7. Learned counsel for the appellant submits that in addition to the
already formulated substantial questions of law, the appellant has also
filed an application (I.A. No. 2740/2025) proposing two more substantial
questions of law, which also deserve to be formulated. The proposed
substantial questions of law are quoted as under:-
“a) Whether the court below have erred in not passing the decree
under section 12(1)(b)(c) and (f) of the M.P. Accommodation and
Control Act 1961 against Harprasad and holding Dashrath to be
the Sub-tenant by drawing adverse inference on account of not
adducing successors of Harprasad as his witnesses by Dashrath?
b) Whether the Court below has erred in reversing the finding of
Trial Court, whereby the appellant was held to be the owner of suit
premises?”
8. Learned counsel for the appellant/plaintiff submits that although
trial Court found that there is no relationship of landlord and tenant in
between the parties, but rightly granted decree of possession on the basis
of relationship of licensor and licensee. He submits that the case of
relationship of landlord and tenant is clearly proved by the available oral
and documentary evidence adduced by the plaintiff. He submits that first
6 S.A. No. 608/2007
appellate Court has committed illegality in holding the gift deed to be a
suspicious document whereas no evidence has been adduced on behalf of
the defendant challenging veracity of the gift deed and even the existence
of gift deed has been admitted by the defendant Dashrath (DW/1) in
paragraph 9 of his statement. He submits that in the light of admitted fact
that the defendant had handed over possession of half of the property to
the plaintiff, the case of ownership and landlordship pleaded by the
plaintiff becomes established. He submits that in view of proven fact that
Harprasad was tenant in the premises and the defendant has failed to
prove his status in the premises, he was rightly held to be the licensee in
the suit accommodation and first appellate Court has wrongly reversed
the judgment and decree passed by trial Court. He further submits that in
view of admission of the defendant regarding execution of gift deed and
handing over possession of the adjacent premises, no further proof was
required. He further submits that by drawing adverse inference, Court
below ought to have granted decree of eviction in favour of the plaintiff
on the grounds under Section 12(1)(b), (c) & (f) of the Act. In support of
his submissions, he placed reliance on the decisions of Hon’ble Supreme
Court in the case of Ramrameshwari Devi v. Nirmala Devi (2011) 8 SCC
249; Praful Manohar Rele v. Krishnabai Narayan Ghosalkar and others
(2014) 11 SCC 316; Gopal Krishnaji Ketkar v. Mohamed Haji Latif &
7 S.A. No. 608/2007
Others AIR 1968 SC 1413; Balveersingh v. Kishanlal AIR 1988 MP
225; Majati Subbarao v. P.V.K. Krishna Rao (deceased) by Lrs AIR 1989
SC 2187; Jaspal Kaur Cheema and Anr. v. M/s. Industrial Trade Links
and Ors. etc. AIR 2017 SC 3995; Jahuri Sah and others v. Dwarika
Prasad Jhunjhunwala and others AIR 1967 SC 109; Prahlad Das and
another vs. Madholal (1996) 2 MPJR 239; and in the case of Ashok
Kumar Jain vs. Smt. Babita Sawnani in F.A. No. 1021/2012 decided on
30.01.2019 (at Jabalpur Bench).
9. Heard learned counsel for the appellant/plaintiff and perused the
record.
10. Undisputedly, in the present case trial Court while deciding the
issue no. 2 to 5 held that Lt. Harprasad did not receive the suit
accommodation on rent from plaintiff and Harprasad did not sublet the
accommodation to defendant-Dashrath Prasad. The Court also held that
rented premises was not given by plaintiff to the defendant for non-
residential purpose nor the plaintiff is in need of the accommodation for
his business. However, on the basis of Gift deed held the plaintiff to be
owner and defendant-Dashrath to be licensee and ordered his eviction by
the decree of permanent injunction.
11. Undisputedly the aforesaid judgment and decree/adverse findings
of trial Court were not challenged by the plaintiff by way of appeal or by
8 S.A. No. 608/2007
filing any cross objection in the appeal of the defendant and only the
defendant/ respondent-Dashrath preferred civil appeal, which was
allowed holding that there is no relationship of licensor and licensee also
in between the parties and, therefore, there is no question of passing
decree of possession. Perusal of plaint shows that the plaintiff had
instituted the suit only on the basis of relationship of landlord and tenant
and paragraphs 1 to 9 of plaint show that nowhere the plea of licensor and
licensee has been taken. Originally the defendant 1-Harprasad was
alleged to be tenant and defendant 2-Dashrath was alleged to be sub-
tenant, however, by way of amendment in plaint, paragraph 8(c) was
incorporated and it is alleged that if the Court comes to conclusion that
defendant-Dashrath is not tenant of plaintiff and his capacity is that of
licensee then in alternate, the plaintiff prays relief of possession against
the defendant 2 by way of permanent injunction and except this pleading
no other pleading is there in plaint, which by way of filing written
statement, was specifically denied by defendant-Dashrath.
12. In respect of relationship of licensor and licensee there is no
documentary evidence available on record and in the notice (Ex.P/3) also
the defendant 2-Dashrath Prasad Jaiswal was not shown to be the licensee
but clear cut case pleaded by the plaintiff regarding Dashrath Prasad
Jaiswal was that of sub-tenant. In oral testimony, the plaintiff has also not
9 S.A. No. 608/2007
said anything about status of the defendant-Dashrath as licensee.
Although the plaintiff has claimed himself to be owner on the basis of gift
deed, which unnecessarily has been held to be suspicious in the suit filed
for eviction only on the basis of relationship of landlord and tenant, but in
absence of proof of ownership of Ramkali Bai & Kashi Prasad over the
premises in question, mere gift deed by them to the plaintiff, does not
provide any help to the plaintiff for seeking decree on the basis of
relationship of licensor and licensee regarding which no sufficient
pleadings and evidence is there on record. As is mentioned in gift deed
and apparently at the time of execution of gift deed the plaintiff was
minor and for proving the relationship of landlord and tenant or licensor
and licensee, the plaintiff has not examined any other independent
witness.
13. From perusal of testimony of defendant-Dashrath it is clear that he
nowhere has admitted landlordship of the appellant/plaintiff but he has
just admitted that a gift deed was executed in favour of the plaintiff and
he has come to know about it only when it is produced in evidence and
except this statement no admission has been made by him.
14. In view of the aforesaid discussion, all the decisions cited by
learned counsel for the appellant, are distinguishable on facts and do not
give any help to the case of plaintiff/appellant.
10 S.A. No. 608/2007
15. Resultantly, it is held that the substantial questions of law
formulated by this Court so also proposed by the appellant/plaintiff by
way of application (I.A. No. 2740/2025) do not arise in this second
appeal and are decided against the appellant/plaintiff.
16. As a result of the aforesaid, this second appeal fails and is hereby
dismissed with cost.
17. Miscellaneous application(s), pending if any, shall stand closed and
interim order of stay, if any, shall stand vacated.
(DWARKA DHISH BANSAL)
JUDGE
KPS
Digitally signed by KUMARI PALLAVI SINHA
Date: 2025.02.10 16:09:14 +05’30’
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