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Madan vs Sarlabai[D]Th.Chandrashakher & … on 22 February, 2010

Madhya Pradesh High Court
Madan vs Sarlabai[D]Th.Chandrashakher & … on 22 February, 2010
 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR


                       Second Appeal No. 1155/04


     Appellant                   Madan.

                                 Vs.

     Respondents                 Sarlabai and others.


     Shri B.R. Koshta, Adv. :-     Counsel for the appellant.

     Shri Jaideep Sirpurkar, Adv. Counsel for the respondents.



                         O R D E R (ORAL)

22/02/2010

U.C. MAHESHWARI, J.

1. This appeal is directed under section 100 of the CPC by the appellant-
defendant being aggrieved by the judgment and decree dated 22.7.04
passed by the 5th Additional District Judge, Chhindwara in Civil Appeal No.
108-A/02 affirming the judgment and decree dated 30.10.1999 passed by
the Civil Judge class-II, Chhindwara in Original Suit No. 60-A/96
decreeing the suit of the respondents against him for eviction from the
disputed premises situated in village Chourai, district Chhindwara where
as per Schedule – I of the M.P. Accommodation Control Act 2001, Such
Act is not is not applicable. In such premises, this case has been decided
by courts below taking into consideration the provision relating to the
lease enacted under the Transfer of Property Act.

2. The facts of the case necessary to consider the question of admission in
short are that the principle plaintiff Saralabai, the predecessor of the
repsondents filed the aforesaid eviction Suit against the appellant with
respect of the premises situated at village Chourai, district Chhindwara
contending that the appellant being her tenant was in occupation of the
disputed premises @ Rs.60/- per month. The month of tenancy was
according to the Gregarian Callender month. The appellant being
defaulter in payment of rent had not paid the same since February 1991,
on which the Quit Notice dated 24.2.1993, (Ex. P-1) with demand of
arrears of rent was sent through registered post. In this regard the postal
receipt is also annexed with the plaint. By this notice the aforesaid
tenancy of the appellant was terminated on dated 31.3.1993. Inspite
service of the same in compliance of it neither the rent was paid nor
vacant possession of the premises was given to respondents. As per
further averments when the acknowledgment due receipt of the
aforesaid notice was not received by the principle defendant, then
another notice was also sent to the appellants in the month of May 1993.
In that respect postal receipt, (Ex.P-3), and the acknowledgment due
receipt, (Ex.P-4), are also annexed with the plaint. With these averments
the aforesaid suit for eviction and recovery of rent and other sum is filed.

3. In the written statements of the appellant by admitting the tenancy in
the disputed premises, it is stated that initially he was inducted in the suit
premises @ Rs. 60/- per month. The same was enhanced @ Rs.100/- per
month in the year 1985. Upto June 1989 the entire rent was paid by the
appellant. Subject to adjustment in future monthly rent with the consent
of the principal defendant- Sarala Bai the appellant had carried out the
necessary repairing in the premises. Accordingly the same was to be
adjusted in the rent or was to be paid by respondent to the appellant.
Such principal defendant being resident of Multai is not in need of the
disputed premises. It is also pleaded that she wanted to sell the disputed
house and the appellate was ready and willing to purchase the same, on
which some agreement to sell took place between them, according to
which after adjusting aforesaid amount spent in repairing Rs.15000/- as
consideration was also paid by the appellant. It is also stated that there is
no arrears of rent. The deceased- respondent filed a suit contrary to the
aforesaid agreement to sell. It is also stated that the relationship of
landlord and tenant between the parties came to end on aforesaid
agreement to sell and prayer for dismissal of the suit is made.

4. In view of pleadings of the parties after framing issues, the evidence was
recorded. On appreciation of the same, by holding the relationship as
landlord and tenant between the parties and the tenancy of the appellant
was also terminated by duly constituted notice the suit was decreed
against the appellant. On filing the appeal by affirming the judgment and
decree of the trial court, the same was dismissed, on which the appellant
has come forward to this court with this appeal.

5. Shri B.R. Koshta, learned appearing counsel for the appellant by referring
the pleadings and the evidence led by the parties said that notice for
termination of the tenancy was never served on the appellant in
accordance with the prescribed procedure and in such premises, the
decree passed by the courts below is not sustainable. In support of this
contention he referred to Ex. P-3, the postal receipt and Ex. P-4,
acknowledgment due receipt and said that according to notice, Ex.P-1 the
tenancy was terminated on 31.3.1999 while notice was sent and served
on the appellant in the month of May 1993 as evident from Ex. P-3 and
P-4. Accordingly the notice was sent subsequent to the date of
termination of tenancy. He also argued that the possession of the
appellant was duly protected under Section 53-A of the Transfer of
Property Act as after entering the parties with an agreement to sell the
relationship between them as landlord and tenant had come to an end
and in such premises the courts below have committed grave error in
passing the decree by holding the relationship as landlord and tenant
between the parties and prayed for admission of this appeal on the
substantial questions of law, mentioned in appeal memo.

6. Having heard the learned counsel, I have gone through the records of
both the courts below and also perused the impugned judgments. The
concurrent findings with respect of the relationship of landlord and tenant
between the parties based on appreciation of evidence being findings of
fact does not give rise to any substantial question of law at the stage of
second appeal as laid down by the Apex Court in the matter of Kalyan
Singh Vs. Ramswaroop and another reported in 1996 JLJ 247 (SC)
and also by this court in the matter of Machalabai Vs. Nanakram
reported in 2006 (2) MPLJ 484.

7. So far the question relating to the service of Quit Notice is concerned, it is
apparent on record that notice, Ex. P-1 was sent by the principle –
plaintiff to the appellant on his correct address through registered post
after obtaining the postal receipt, dated 24.2.1993, (Ex.P-2) and when the
acknowledgment due receipt of such notice was not received, then as per
contention of the respondent – plaintiff again sent a notice after
obtaining the postal receipt, (Ex. P-3) in the month of May 1993. It’s
acknowledgment due receipt, (Ex.P-4) is also placed on record. On
appreciation of the available evidence both the courts below taking into
consideration that the abovementioned quit notice, Ex. P-1 was sent by
the principle plaintiff through registered post by obtaining the postal
receipt, Ex. P-2 to the appellant on his correct address, in view of the
provision of presumption regarding service of notice sent through
registered post enumerated under Section 27 of the General clauses Act
held that the notice, Ex.P-1 was duly served on the appellant. Such
finding appears to be based on proper appreciation of the available
evidence supported with the postal receipt, P-2 and the sound legal
proposition. Apart the aforesaid General Clauses Act such interference
could also be drawn under Section 3 (c) of the (The Indian) Post Office
Act 1998. In such premises, I am of the considered view that this
question is also not giving rise to any question of law, rather than any
substantial questions of law, hence such ground also fails.

8. Coming to question relating to Section 53-A of the Transfer Property Act,
such provision is made applicable only in that circumstance where there is
any document is written with the signature between the parties settling
the terms and conditions, on which the transaction will take place in
future and in furtherance of such contract the possession of the property
is given to the transferee. In the available case, it is apparent from the
records that such agreement was neither written nor produced by the
appellant on record. In such premises, the courts below had not
committed any error in not relying on such defence of the appellant. In
such premises, this ground is also not giving any rise to any substantial
question of law.

9. In the aforesaid premises, I have not found any circumstance in the
impugned judgment giving rise to any question of law rather than
substantial question of law requiring any consideration at this stage
under Section 100 of the CPC, resultantly, in the lack of any question of
law this appeal is hereby dismissed at the stage of motion hearing.

( U.C. Maheshwari )
Judge
bks

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