Madhya Pradesh High Court
Ramdas vs Shekh Saiffudin Bhai And Anr. on 17 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
SECOND APPEAL No. 563 of 2005
RAMDAS
Versus
SHEKH SAIFFUDIN BHAI AND ANR.
Appearance:
Shri N.K. Gupta - Advocate for appellant.
Shri Prashant Sharma and Shri Yashwantrao Dixit - Advocates for respondents.
Reserved on : 06/04/2026
Pronounced on : 17/04/2026
JUDGMENT
This second appeal under Section 100 of CPC has been filed against
judgment and decree dated 10/3/2005 passed by First Additional District
Judge, Guna in Civil Suit No. 81-A/2004, as well as judgment and decree
dated 30/7/2004 passed by Civil Judge, Class I, Aaron Camp, Guna in Civil
Suit No. 14-A/2002.
2. Original defendant namely Ramdas and original plaintiff namely
Shekh Saiffudin Bhai died during the pendency of this appeal, and
accordingly, their legal representatives were brought on record. Thus, the
appeal is being prosecuted by legal representatives of defendant / tenant
whereas legal representatives of original plaintiff Shekh Saiffudin Bhai are
respondents.
3. The facts necessary for disposal of present appeal, in short, are that
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plaintiff filed a suit for eviction under Sections 12(1)(c), 12(1)(d), 12(1)(m),
12(1)(n), 12(1)(o) of M.P. Accommodation Control Act, as well as for grant
of arrears of rent. Respondent No. 2 / Plaintiff No. 2 is the son of original
plaintiff Shekh Saiffudin Bhai and he was also his power of attorney
holder. It was the case of plaintiff that property in dispute is an open land as
well as building constructed over it. Entire property is known as Jeen Ghar .
The open land situated in Jeen Ghar was let out to defendant by two
different rent notes on monthly rent of Rs. 5/- and Rs. 15/- in all Rs. 20/- per
month. Disputed property was marked with blue ink in the plaint map and
that property was described as disputed property. It was claimed that tenancy
was from the first day of calendar month to the last day of calendar month.
Whenever the rent was paid by defendant, receipts were issued. It was
claimed that by efflux of time, tenancy has come to an end, but as he was
holding over, therefore, defendant is a statutory tenant of both the pieces of
land on monthly rent of Rs. 20/-. Disputed property was originally given to
defendant for establishing a saw mill as well as for storing wood logs, but the
defendant, without the permission of plaintiff, has raised a construction for
his residential purposes. On account of construction over the open land, not
only the value has substantially diminished, but the construction without the
permission of plaintiff has rendered the defendant liable to be evicted under
section 12(1)(m) of M.P. Accommodation Control Act. It was further
pleaded that the land in dispute was given for non-residential purposes but by
partially converting the same into a residential premises, defendant has made
himself liable to be evicted under section 12(1)(c) of M.P. Accommodation
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Control Act because his act is inconsistent with the purpose for which he was
admitted to the tenancy of the accommodation. Defendant has also
encroached upon the land adjoining to the disputed property and has not
removed his encroachment despite of written information given to him. The
part which was encroached upon by defendant was marked in red color in
the plaint map. Accordingly, it was claimed that defendant has made himself
liable for eviction under section 12(1)(o) read with section 12(11) of M.P.
Accommodation Control Act. It was further pleaded that plaintiff wants to
raise a construction over the property in dispute, and he has also got the plan
prepared. Plaintiff is in possession of the finance also. It was pleaded that
plaintiff has terminated the tenancy by sending a registered notice dated
15/3/1991, but defendant has not vacated the suit premises, and accordingly,
defendant has made himself liable for eviction under section 12(1)(n) of
M.P. Accommodation Control Act. Accordingly, the suit was filed for
eviction as well as for recovery of mesne profits at the rate of Rs. 20/- per
month in respect of the tenanted premises and at the rate of Rs. 150/- per
month in respect of the premises which was encroached upon by defendant.
4. Defendant filed his written statement and it was claimed that he
does not know as to whether Plaintiff No. 2 has been appointed as power of
attorney on behalf of Plaintiff No. 1 or not. It was further submitted that
Plaintiff No. 2 is not a necessary party, therefore, he is liable to be removed
from the array of plaintiff. It was claimed that on 7/9/1959, the suit premises
was let out to defendant on a monthly rent of Rs. 2.25/- for establishing a
saw mill as well as for residential purposes. Defendant had started the saw
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mill in the year 1955, and at that time, he had taken the entire land on a
monthly rent of Rs. 1.50/-. However, in the year 1959, the rent was enhanced
to Rs. 2.25/-. In the year 1955 itself, defendant had constructed a shed for
saw mill, boundary wall, shed for storing wood as well as had also
constructed the house for residential purposes. The aforesaid facts are
mentioned in the rent note of the year 1959. In the year 1962, rent was
enhanced to Rs. 5/- and once again, a new rent note dated 1/10/1962 was
executed. As the defendant was facing shortage of place, therefore, he took
the additional land on rent on monthly rent of Rs. 5/- for which a separate
rent note was executed. It was claimed that defendant is in possession of the
land which was let out to him by two rent notes. It was admitted that
cumulatively the monthly rent of both the premises is Rs. 20/-. The property,
which has been shown in blue color, is not the factual situation whereas
reality is that the entire part was let out and is in the possession of the
defendant which has been shown in red and blue color. It was claimed that
defendant is regularly making payment of rent of Rs. 20/-. It was further
claimed that defendant had already taken the property on rent for establishing
a saw mill, as well as for keeping the stock of wood and for his residential
purposes, and the defendant is residing on the land in dispute after
constructing his house, He has not brought in any material change in the
nature of the property. It was claimed that the tenancy was for residential as
well as non-residential purposes since its inception. Under these
circumstances, it was claimed that defendant is not liable to be evicted under
section 12(1)(c) of M.P. Accommodation Control Act. It was denied that
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defendant has encroached upon any additional piece of land. It was further
claimed that the plaintiff is not entitled to raise any construction over the
property in dispute and property in dispute is not bona fide required by
plaintiff for non-residential purposes. Immediately after receiving the
registered notice, defendant had registered his objection, and accordingly, it
was agreed that plaintiff will not take any action against the defendant. On
that verbal assurance, defendant did not give any reply to the notice. It was
claimed that in fact, defendant was all the time making efforts to pay the
rent, but it was the plaintiff who was not receiving the rent, and accordingly,
the defendant has deposited the rent in the court. It was further claimed that
one Nand Kishore has instituted a suit against the plaintiff for his eviction
which is pending in the court of Second Civil Judge, Class-I, Guna. Suit
suffers from non-joinder of necessary party. The defendant had filed an
application under Order 1 Rule 10 CPC which has been kept pending by the
Trial Court by observing that defendant should take his objection in the
written statement. It was further stated that one Ramcharan had also filed a
suit for eviction which was pending in the court of Second Civil Judge,
Class-I, Guna, which was decided by Second Civil Judge, Class-I, Guna, and
by judgment and decree dated 3/11/1995, a decree for eviction was passed
against the defendant. Against the said decree, defendant has preferred an
appeal which is pending in the Court of District Judge. Plaintiff had filed a
suit for declaration of title as well as sale deed executed in favor of
Ramcharan as null and void. The said suit was decided against the plaintiff,
and plaintiff was not held to be the owner, and accordingly, plaintiff is not
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entitled to pursue the suit. It was further stated that the State Government had
directed for settlement of encroachments, and accordingly, steps were taken
for dispossessing the defendant, but Collector, Guna directed not to take any
action, and it was held that the land in dispute does not belong to Saiffudin
Bhai /plaintiff, Ramcharan or Nand Kishore, but it is a government land, and
therefore, encroachment should be removed. Accordingly, defendant made
an application for grant of patta, and on 31/12/1985, an order for granting
patta was passed in favor of defendant. Saiffudin had assailed the said order
by filing a writ petition before the High Court which was dismissed. Thus, it
was claimed that even the High Court has treated the land in dispute as a
government land. It was further claimed that apart from Nand Kishore and
Ramcharan, the State of M.P. was also a necessary party, and since they have
not been impleaded as a party, therefore, the suit is bad on account of non-
joinder of necessary party. It was further stated that the Municipal Council as
well as PWD, etc. have given a no objection for grant of permanent lease in
favor of defendant. Plaintiff had never opposed the tenancy, and in every
proceeding, he had maintained that he has taken the property in dispute on
rent from Saiffudin. However, later on, it was held by the Collector that the
land does not belong to Saiffudin. It was claimed that in the year 1955 when
the defendant had taken the property on rent from Seth Chhutilal for the first
time, then approximately 150 fruit-bearing trees were planted by him which
are 40 years old.
5. In view of the written statement, plaintiff amended his plaint and
clarified that the suit which was filed against Ramcharan Sharma was not in
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respect of the disputed property, but it was in respect of Survey No. 975/1/1
area 1755 square feet. It was further claimed that the said civil suit is still
pending and no evidence has been led by any of the parties. It was further
claimed that no decision has been given by the High Court thereby finally
adjudicating the rights of parties. Accordingly, it was claimed that the
proceedings which have been referred to by defendant in his written
statement do not apply as res judicata.
6. The Trial Court, after framing issues and recording evidence,
decreed the suit and held that defendant has constructed a residential
accommodation in the suit premises without the permission of plaintiff and
has also encroached upon the adjoining land by constructing fencing, etc. It
was further held that plaintiff is in need of suit land for construction of his
own house. It was held that the suit does not suffer from non-joinder of
necessary party, and accordingly, a decree was passed under sections 12(1)
(c), 12(1)(o), 12(1)(m) and 12(1)(n) of M.P. Accommodation Control Act.
7. Being aggrieved by judgment and decree passed by the Trial Court,
appellant/defendant preferred an appeal which was partially allowed and
decree for eviction under sections 12(1)(c), 12(1)(m) and 12(1)(o) of M.P.
Accommodation Control Act was set aside whereas decree under section
12(1)(n) of M.P. Accommodation Control Act was granted.
8. This Court, by order dated 30/8/2006, framed the following
substantial question of law:
“Whether, in the facts and circumstances of the case, a decree under
section 12(1)(n) of the M.P. Accommodation Control Act was warranted
when it was the case of the appellant that when the property was take on
rent, constructions were already present in the suit premises?
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9. IA No. 16628/2006 was filed by respondent under Order 41 Rule 22
CPC thereby raising cross objection against dismissal of suit for eviction on
the ground of sections 12(1)(c), 12(1)(m) and 12(1)(o) of M.P.
Accommodation Control Act. In the light of judgment passed by this Court
in the case of Chandrawati vs. Ganesh Prasad , reported in (1999) 1 MPLJ
107 , the cross objection was admitted by order dated 11/3/2006, and
following substantial question of law was framed:
“Whether the appellate Court committed material illegality by reversing
the decree granted by the trial Court in respect of eviction under sections
12(1)(c), 12(1)(m) and 12(1)(o) of the Act?”
10. Therefore, for deciding this appeal, this Court is required to
consider the claim of plaintiff under sections 12(1)(c), 12(1)(m), 12(1)(o),
and 12(1)(m) of M.P. Accommodation Control Act.
11. Challenging the judgment and decree passed by the First Appellate
Court, it is submitted by counsel for appellant that since the accommodation
was not an open land, therefore, no decree under section 12(1)(n) of M.P.
Accommodation Control Act can be passed. By referring to rent note
exhibits P1 and P2, it is submitted by counsel for appellant that since the
tenancy was not in respect of the open land only, therefore, the decree should
not have been granted under section 12(1)(n) of M.P. Accommodation
Control Act.
12. Per contra, it is submitted by counsel for respondent that defendant
had admitted the tenancy and the suit, which was referred by defendant, was
in respect of the other land. As defendant has tried to obtain a lease in
respect of the disputed property, therefore, it is clear that he had denied the
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title of plaintiff. However, he fairly conceded that the denial of title was not
made a ground for eviction. However, it is submitted that even the rent of Rs.
20/- per month has not been paid regularly. It is further submitted that since
defendant has encroached upon the additional land, therefore, he is also
liable to be evicted under section 12(1)(o) of M.P. Accommodation Control
act, and since defendant has constructed a house whereas the suit property
was given for establishing saw mill, therefore, the act of the defendant is
inconsistent with the purpose for which he was admitted to the tenancy of
the accommodation and that has adversely and substantially affected the
interest of the landlord therein.
13. Considered the submissions made by counsel for parties.
Decree under section 12(1)(n) of M.P. Accommodation Control Act.
14. Section 12(1)(n) of M.P. Accommodation Control Act reads as
under:
“12. Restriction on eviction of tenants – (1) …
(n) in the case of accommodation which is open land, that the
landlord requires it for constructing a house on it;”
15. By referring to rent note exhibits P1 and P2, it is submitted by
counsel for appellant/defendant that in both these rent notes which were
executed on 15/9/1961 (Exhibit P1) and on 1/1/1970 (Exhibit P2), it was
specifically mentioned that the property in dispute is required for residential
purposes, and tenant would reside in the house and would not sublet the
same. By referring to rent note dated 1/1/1970, Exhibit P2, a similar
submission was made, and it was submitted that since the land was not an
open land and saw mill as well as house were already standing on the land in
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dispute, therefore, the Trial Court has committed material illegality by
granting a decree under section 12(1)(n) of the M.P. Accommodation
Control Act.
16. Considered the submissions made by counsel for appellant.
17. Defendant has filed his written statement and in that written
statement, he had stated that in fact, in the year 1955, he had taken the suit
property on tenancy for establishing a saw mill. Therefore, it is clear that
tenancy of plaintiff had started in the year 1955, and later on, tenancy was
renewed and subsequently, in absence of renewal of tenancy, the defendant
had become a statutory tenant by holding over. Defendant, in paragraph three
of his examination-in-chief, has specifically stated that after taking the
premises on rent in the year 1955, he had constructed a shed for saw mill, a
boundary wall, constructed a shed for storing wood and had also constructed
a house. Thus, it is clear that when the disputed property was let out to
defendant, at that time the suit property was an open land and in fact, it is the
defendant who has constructed a house for residential purposes, whereas
defendant himself has pleaded that suit premises was taken on rent for
establishing a saw mill.
18. Furthermore, Defendant, in paragraph 24 of his cross-examination,
has specifically stated that earlier he had taken the disputed premises on rent
for establishing a saw mill. He did not state that the land was originally let
out to him for residential purposes also. In paragraph 28, again he clarified
that earlier the land was taken on rent for establishing saw mill and it was
claimed that with the permission of plaintiff, a shed was constructed for saw
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mill and a room was also constructed. In paragraph 29, he admitted that the
notice exhibit P3 was received by him. He further admitted that
acknowledgment of receipt of notice exhibit P4 bears his signature. He
further admitted that notice Exhibit P7 was also received by him, and its
acknowledgement Exhibit P8 also bears his signature. He claimed that on
18/7/1994, he sent a draft of Rs. 1660/- out of which Rs. 1100/- were rent for
the period of January 1990 to July 1994. He admitted that he had constructed
the house on the land in dispute. Thus, it is clear that the suit property which
was originally let out to defendant was an open land, and the suit land was
taken by defendant on rent for establishing a saw mill, but thereafter, without
seeking permission from plaintiff, he constructed a house for residential
purposes.
19. Both the Courts below have given a concurrent finding of fact with
regard to eviction of defendant under Section 12(1)(n) of M.P.
Accommodation Control Act. No perversity could be pointed out by counsel
for appellants in the concurrent findings of fact recorded by both the Courts
below with regard to a decree for eviction under Section 12(1)(n) of M.P.
Accommodation Control Act. The Supreme Court in the case of Angadi
Chandranna Vs. Shankar and Others decided on 22/04/2025 in Civil Appeal
No.5401/2025 {Arising out of SLP (C) No.6799 of 2022 }, has held as
under:-
“12. Before delving into the facts of the case, this court in Jaichand
(supra) expressed its anguish at the High Court for not understanding
the scope of Section 100 CPC, which limits intervention only to cases
where a substantial question of law exists, and clarified that the High
Court can go into the findings of facts under Section 103 CPC only
under certain circumstances, as stated in the following passages:
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“23. We are thoroughly disappointed with the manner in
which the High Court framed the so-called substantial
question of law. By any stretch of imagination, it cannot be
termed even a question of law far from being a substantial
question of law. How many times the Apex Court should
keep explaining the scope of a second appeal Under Section
100 of the Code of Civil Procedure and how a substantial
question of law should be framed? We may once again
explain the well-settled principles governing the scope of a
second appeal Under Section 100 of the Code of Civil
Procedure.
24. In Navaneethammal v. Arjuna Chetty reported in
MANU/SC/2077/1996 : 1998: INSC: 349 : AIR 1996 S.C.
3521, it was held by this Court that the High Court should
not reappreciate the evidence to reach another possible
view in order to set aside the findings of fact arrived at by
the first appellate Court.
25. In Kshitish Chandra Purkait v. Santosh Kumar Purkait
reported in MANU/SC/0647/1997 : 1997:INSC:487 :
(1997) 5 S.C.C. 438), this Court held that in the Second
Appeal, the High Court should be satisfied that the case
involves a substantial question of law and not mere
question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao
Marnor reported in MANU/SC/0058/1999 : 1999 (2)
S.C.C. 471, this Court held: Keeping in view the
amendment made in 1976, the High Court can exercise its
jurisdiction Under Section 100, Code of Civil Procedure
only on the basis of substantial questions of law which are
to be framed at the time of admission of the Second Appeal
and the Second Appeal has to be heard and decided only on
the basis of such duly framed substantial questions of law.
A judgment rendered by the High Court Under Section 100
Code of Civil Procedure without following the aforesaid
procedure cannot be sustained.
27. This Court in Kondira Dagadu Kadam v. Savitribai
Sopan Gujar reported in MANU/SC/0278/1999 :
1999:INSC:192 : AIR 1999 S.C. 2213 held: The High
Court cannot substitute its opinion for the opinion of the
first appellate Court unless it is found that the conclusions
drawn by the lower appellate Court were erroneous being
contrary to the mandatory provisions of law applicable or
its settled position on the basis of pronouncements made by
the Apex Court, or was based upon inadmissible evidence
or arrived at without evidence.
28. It is thus clear that Under Section 100, Code of Civil
Procedure, the High Court cannot interfere with the
findings of fact arrived at by the first Appellate Court
which is the final Court of facts except in such cases where
such findings were erroneous being contrary to the
mandatory provisions of law, or its settled position on the
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basis of the pronouncement made by the Apex Court or
based upon inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere with
the findings of the trial Court on the ground of failure on
the part of the trial as well as the first appellate Court, as the
case may be, when such findings are either recorded
without proper construction of the documents or failure to
follow the decisions of this Court and acted on assumption
not supported by evidence. Under Section 103, Code of
Civil Procedure, the High Court has got power to determine
the issue of fact. The Section lays down: Power of High
Court to determine issue of fact: In any Second Appeal, the
High Court may, if the evidence on the record is sufficient
to determine any issue necessary for the disposal of the
appeal,- (a) Which has not been determined by the lower
Appellate Court or both by the Court of first instance and
the lower Appellate Court, or (b) Which has been wrongly
determined by such Court or Courts by reason of a decision
on such question of law as is referred to in Section 100.
30. In Bhagwan Sharma v. Bani Ghosh reported in
MANU/SC/0094/1993 : AIR 1993 S.C. 398, this Court
held: The High Court was certainly entitled to go into the
question as to whether the findings of fact recorded by the
first appellate court which was the final court of fact were
vitiated in the eye of law on account of non-consideration
of admissible evidence of vital nature. But, after setting
aside the findings of fact on that ground the Court had
either to remand the matter to the first appellate Court for a
rehearing of the first appeal and decision in accordance
with law after taking into consideration the entire relevant
evidence on the records, or in the alternative to decide the
case finally in accordance with the provisions of Section
103(b). …… If in an appropriate case the High Court
decides to follow the second course, it must hear the parties
fully with reference to the entire evidence on the records
relevant to the issue in question and this is possible if only
a proper paper book is prepared for hearing of facts and
notice is given to the parties. The grounds which may be
available in support of a plea that the finding of fact by the
court below is vitiated in law does not by itself lead to the
further conclusion that a contrary finding has to be finally
arrived at on the disputed issue. On a reappraisal of the
entire evidence the ultimate conclusion may go in favour of
either party and it cannot be prejudged.
31. In the case of Hero Vinoth v. Seshammal reported in
MANU/SC/2774/2006 : 2006:INSC:305 : (2006) 5 SCC
545 this Court explained the concept in the following
words: It must be tested whether the question is of general
public importance or whether it directly and substantially
affects the rights of the parties. Or whether it is not finally
decided, or not free from difficulty or calls for discussion of
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alternative views. If the question is settled by the highest
court or the general principles to be applied in determining
the question are well settled and there is a mere question of
applying those principles or that the plea raised is palpably
absurd the question would not be a substantial question of
law.
32. It is not that the High Courts are not well-versed with
the principles governing Section 100 of the Code of Civil
Procedure. It is only the casual and callous approach on the
part of the courts to apply the correct principles of law to
the facts of the case that leads to passing of vulnerable
orders like the one on hand.”
12.1. In the present case, in our view, the so-called substantial question
of law framed by the High Court does not qualify to be a substantial
question of law, rather the exercise of the High Court is a venture into
the findings of the First Appellant Court by re-appreciation of
evidence. It is settled law that the High Court can go into the findings
of facts only if the First Appellate Court has failed to look into the law
or evidence or considered inadmissible evidence or without evidence.
Section 103 permits the High Court to go into the facts only when the
courts below have not determined or rendered any finding on a crucial
fact, despite evidence already available on record or after deciding the
substantial question of law, the facts of a particular case demand re-
determination. For the second limb of Section 103 to apply, there must
first be a decision on the substantial question of law, to which the facts
must be applied, to determine the issue in dispute. When the First
Appellate Court in exercise of its jurisdiction has considered the entire
evidence and rendered a finding, the High Court cannot re-appreciate
the evidence just because another view is possible, when the view
taken by the First Appellate Court is plausible and does not suffer
from vice in law. When the determination of the High Court is only by
way of re-appreciation of the existing evidence, without there being
any legal question to be answered, it would be axiomatic that not even
a question of law is involved, much less a substantial one. It will be
useful to refer to another judgment of this Court in Chandrabhan
(Deceased) through L.Rs & Ors. v. Saraswati & Ors.11, wherein it
was held as follows:
“33. The principles relating to Section 100 of the Code of Civil
Procedure relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the
terms of a document is a question of law. Construction of a
document involving the application of any principle of law,
is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material
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answer to which affects the rights of parties to the suit) will
be a substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle
emerging from binding precedents and involves a debatable
legal issue. A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either
on account of express provisions of law or binding
precedents, but the court below has decided the matter,
either ignoring or acting contrary to such legal principle. In
the second type of cases, the substantial question of law
arises not because the law is still debatable, but because the
decision rendered on a material question, violates the
settled position of law.
(iii) The general Rule is that the High Court will
not interfere with findings of facts arrived at by
the courts below. But it is not an absolute rule.
Some of the well-recognised exceptions are
where (i) the courts below have ignored material
evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts
by applying the law erroneously; or (iii) the
courts have wrongly cast the burden of proof.
When we refer to “decision based on no
evidence”, it not only refers to cases where
there is a total dearth of evidence, but also refers
to any case, where the evidence, taken as a
whole, is not reasonably capable of supporting
the finding.
34. In this case, it cannot be said that the First Appellate
Court acted on no evidence. The Respondents in their
Second Appeal before the High Court did not advert to any
material evidence that had been ignored by the First
Appellate Court. The Respondents also could not show that
any wrong inference had been drawn by the First Appellate
Court from proved facts by applying the law erroneously.
35. In this case, as observed above, evidence had been
adduced on behalf of the Original Plaintiff as well as the
Defendants. The First Appellate Court analysed the
evidence carefully and in effect found that the Trial Court
had erred in its analysis of evidence and given undue
importance to discrepancies and inconsistencies, which
were not really material, overlooking the time gap of 34
years that had elapsed since the date of the adoption. There
was no such infirmity in the reasoning of the First
Appellate Court which called for interference.
36. Right of appeal is not automatic. Right of appeal is
conferred by statute. When statute confers a limited right of
appeal restricted only to cases which involve substantial
questions of law, it is not open to this Court to sit in appeal
over the factual findings arrived at by the First Appellate
Court.”
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12.2. In the present case, the First Appellate Court analyzed the entire
oral evidence adduced by both parties, as well as the documentary
evidence relied upon by either side, and dismissed the suit. The
authority to re-consider the evidence is available only to the First
Appellate Court under Section 96 and not to the High Court in
exercise of its authority under Section 100, unless the case falls under
the exceptional circumstances provided under Section 103. While so,
the re-appreciation of the entire evidence, including the contents of the
exhibits, reliance on and wrongful identification of a different property
and treating the same to be the suit property actually in dispute to
prescribe another view without any substantial question of law, only
illustrate the callousness of the High Court in applying the settled
principles. Therefore, the High Court erred in setting aside the
judgment and decree of the First Appellate Court.”
20. Under these circumstances, decree passed by the Courts below for
eviction under Section 12(1)(n) of M.P. Accommodation Control Act is
hereby affirmed.
Cross-objection
Whether the appellate Court committed material illegality by
reversing the decree granted by the trial Court in respect of eviction
under sections 12(1)(c), 12(1)(m) and 12(1)(o) of the Act?
Decree under Section 12(1)(c) of M.P. Accommodation Control
Act
21. It is fairly conceded by counsel for plaintiff that in spite of the
objection raised by defendant in his written statement about the title of
plaintiff, he did not seek any decree for eviction under Section 12(1)(c) of
M.P. Accommodation Control Act, i.e., denial of title. Although plaintiff had
amended his plaint, but did not claim in paragraph 11A that on account of
denial of title, plaintiff is also entitled for a decree under Section 12(1)(c) of
M.P. Accommodation Control Act.
22. Accordingly, this Court is of considered opinion that no decree
under Section 12(1)(c) of M.P. Accommodation Control Act can be granted
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on the ground of denial of title.
Decree under Section 12(1)(c) of M.P. Accommodation Control Act on the
ground of inconsistent user
23. Section 12(1)(c) of M.P. Accommodation Control Act reads as
under:
“12. Restriction on eviction of tenants – ….
(c) that the tenant or any person residing with him has created a
nuisance or has done any act which is inconsistent with the purpose
for which he was admitted to the tenancy of the accommodation, or
which is likely to affect adversely and substantially the interest of
the landlord therein:
Provided that the use by a tenant of a portion of the accommodation
as his office shall not be deemed to be an act inconsistent with the
purpose for which he was admitted to the tenancy;”
24. It is the case of defendant that the open land was let out to him in
the year 1955, and thereafter, he constructed a residential accommodation
also, and thereafter, multiple rent notes were executed including exhibits P1
and P2. Since plaintiff kept quiet for decades together with regard to the
inconsistent use of the property by defendant by raising construction of a
residential building, this Court is of considered opinion that now the plaintiff
is not entitled for decree of evidction under Section 12(1)(c) of M.P.
Accommodation Control Act on account of inconsistent user.
25. Accordingly, the First Appellate Court rightly dismissed the suit
filed by plaintiff for eviction on the ground of inconsistent user.
Decree under Section 12(1)(o) of M.P. Accommodation Control Act
26. It is the case of plaintiff that the suit property which is marked with
blue color in the plaint map was let out to defendant, but later on, defendant
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has encroached upon the adjoining land which has been marked in red color
in the plaint map, whereas it is the case of defendant that the entire land,
which has been marked in red color as well as blue color, was let out to him
and he has not encroached upon any additional piece of land.
27. Defendant himself had filed a map along with his written
statement. The portion shown in green color was the premises which was
taken on rent, whereas portion shown in red color was specifically mentioned
as ‘ तीय न पर कराये पर िलया à¤à¤¾à¤—’. It was the case of plaintiff that two rent notes
were executed according to which one portion was let out to defendant on a
monthly rent of Rs. 15/-, whereas another portion of the premises was let out
on monthly rent of Rs. 5/-. Defendant has also admitted that he is a tenant on
the monthly rent of Rs. 15 + 5 = 20/-.
28. Plaintiff No. 2 – Shabbir Hussain (DW-1), who appeared as a
power of attorney holder on behalf of original plaintiff No. 1, has stated that
defendant has encroached upon the adjoining land in the year 1990 by
installing barbed wire and has included the encroached property in the leased
out property. He further stated that a notice Exhibit P3 was sent to defendant
which was received by defendant. Similarly, another notice dated 17/9/1994,
Exhibit P5, was sent which was received by defendant vide
acknowledgement Exhibit P6. One more notice dated 22/10/1994, Exhibit
P7, was sent by plaintiff which too was received by defendant vide
acknowledgement Exhibit P8.
29. Defendant Ramdas (DW-1) in paragraph 29 has admitted that he
had received the notice Exhibit P3 and acknowledgement of receipt of notice
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Exhibit P3 was also admitted by Ramdas (DW-1). He also admitted that he
had received notice Exhibit P5 and notice Exhibit P7, and acknowledgements
of same, Exhibit P6 and P8, respectively, were also admitted by defendant.
In the aforesaid notices, it was specifically mentioned that defendant has
encroached upon the adjoining land and in spite of notice, he has not
removed the encroachment.
30. Although defendant had received all the three notices, but he did
not send his reply. If defendant had not encroached upon the additional land,
then he should have immediately registered his written objection by sending
a reply to the notice, but that was not done. Under these circumstances, this
Court is of considered opinion that the Trial Court did not commit any
mistake by holding that defendant has encroached upon the additional land,
and accordingly, it was rightly held that defendant is liable to be evicted
under Section 12(1)(o) of M.P. Accommodation Control Act.
31. Accordingly, judgment and decree passed by the First Appellate
Court so far as it relates to a decree for eviction under Section 12(1)(o) of
M.P. Accommodation Control Act is concerned, the same is set aside and it
is held that plaintiff is also entitled for a decree under Section 12(1)(o) of
M.P. Accommodation Control Act.
Decree under Section 12(1)(m) of M.P. Accommodation Control Act
32. So far as decree under Section 12(1)(m) of M.P. Accommodation
Control Act on the ground that defendant has raised construction which has
materially altered the accommodation to the detriment of landlord’s interest
or is likely to diminish its value substantially is concerned, this Court is of
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considered opinion that plaintiff is not entitled for decree of eviction under
Section 12(1)(m) of M.P. Accommodation Control Act.
33. This Court has already rejected the stand of plaintiff with regard to
inconsistent user of the suit premises. The residential premises was
constructed by defendant sometimes after 1955, even then, the tenancy was
renewed, and ultimately, the suit was filed on 12/05/1995. Non-filing of suit
for eviction under Section 12(1)(m) of M.P. Accommodation Control Act for
decades together has disentitled the plaintiff to claim eviction on the said
ground. Therefore, in the light of observations made by this Court in respect
of a decree under Section 12(1)(c) of M.P. Accommodation Control Act, i.e.,
inconsistent user, this Court is of considered opinion that no decree can be
granted to the plaintiff under Section 12(1)(m) of M.P. Accommodation
Control Act.
34. No other argument is advanced by any of the parties.
35. Considering the totality of facts and circumstances of the case,
judgment and decree dated 10/3/2005 passed by First Additional District
Judge, Guna in Civil Suit No. 81-A/2004 in respect of decree under Section
12(1)(n) of M.P. Accommodation Control Act is hereby affirmed, whereas
the said judgment and decree is reversed in respect of decree for eviction
under Section 12(1)(o) of the M.P. Accommodation Control Act and it is
directed that defendant is also liable to be evicted under Section 12(1)(o) of
the M.P. Accommodation Control Act.
36. So far as the judgment and decree passed by First Appellate Court
in respect of Section 12(1)(c) and Section 12(1)(m) of the M.P.
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Accommodation Control Act is concerned, the same is hereby affirmed.
3 7 . Appeal filed by defendant is hereby dismissed, whereas cross-
objection filed by plaintiff is allowed to the extent mentioned above.
38. Decree be drawn accordingly.
(G. S. AHLUWALIA)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 17-04-2026
05:10:31 PM