Prem Narayan Sharma vs Kamal Kishore Sharma @ Neeraj … on 1 December, 2017

1 C.R.No. 107/2009 108/2009

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
HON’BLE JUSTICE ANAND PATHAK

CIVIL REVISION NO. 107/2009
Prem Narayan Sharma
Versus
Kamal Kishore Sharma

AND

CIVIL REVISION NO. 108/2009
Prem Narayan Sharma
Versus
Kamal Kishore Sharma

Shri K.S. Tomar, learned senior counsel with Shri P.C.Chandil,
learned counsel for the petitioner/landlord.
Shri K.N.Gupta, learned senior counsel with Shri R.S.Dhakad,
learned counsel for the respondent/tenant.

ORDER

(Passed on this 1st Day of December, 2017)

Regard being had to the similitude to the questions,
Civil Revision No. 107/2009 (Prem Narayan Sharma Vs. Kamal
Kishore Sharma) and Civil Revision No. 108/2009(Prem
Narayan Sharma Vs. Kamal Kishore Sharma) both these
revisions can be decided together because in both these
revisions parties are same and revisions are arising out of order
dated 3/8/2009 passed by Rent Controlling Authority. Civil
Revision No. 107/2009 was filed for ejectment of respondent
from a room, whereas, Civil Revision No. 108/2009 was filed for
ejectment of respondent from the shop, both situate in Municipal
House No. 51/07, situate at Naya Bazar, Lashkar, Gwalior. For
the sake of convenience, facts of Civil Revision No. 107/2009
are being taken for consideration.

2. The present Civil Revision (107/2009) under
Section 23-E of the M.P. Accommodation Control Act, 1961 has
been preferred by the petitioner/landlord against the order dated
2 C.R.No. 107/2009 108/2009

3/8/2009 passed by Rent Controlling Authority, Gwalior in case
No. 18/02-03/90-7; whereby, the application preferred by the
petitioner for eviction under Section 23- of the M.P.
Accommodation Control Act, 1961 has been rejected. Whereas,
Civil Revision No. 108/2009 has been filed against the order of
even date passed by Rent Controlling Authority, Gwalior in case
No. 10/01/02/90-7; whereby, the application preferred by the
petitioner for ejectment of respondent from the shop in question
has been rejected. Petitioner prayed for ejectment of respondent
from the suit shop on the ground that after his retirement he is
free and therefore, is in bona fide requirement of shop to start
business of General Merchant and General Store.

3. Since both the civil revisions are being preferred by
petitioner/landlord -Prem Nayayan Sharma against the
respondent/tenant-Kamal Kishore Sharma and only difference in
both these revisions is in regard to room and shop in question,
therefore, both are decided by this common order and for the
sake of convenience, facts of Civil Revision No. 107/2009 are
being taken for consideration.

4. Precisely stated facts of the case are that
petitioner/landlord filed an application under Section 23-A of the
M.P. Accommodation Control Act, 1961 (for short the “Act of
1961”) for ejectment of the rented accommodation bearing
Municipal House No. 51/07, situate at Naya Bazar, Lashkar,
Gwalior occupied by the respondent on the allegations that said
premises is earmarked in the map in which respondent is tenant
at Rs. 800/- per month and has not paid the rent from 1 st
January, 2002, therefore, he is in arrears of rent. Petitioner was
a special class of landlord because he was a retired government
servant. It is submitted that he is having a family of four
members (wife and two children) and he is having only one room
available for his family and the said room was unsafe and
inadequate for residential purpose and he had the bona fide
requirement of the room of the tenanted premises, therefore,
despite notice to the respondent, neither arrears of rent has
been paid by him, nor the vacant possession has been handed
3 C.R.No. 107/2009 108/2009

over. The application was filed for eviction. Respondent/tenant
contested the claim by filing written statement. It was stated in
the defence that respondent is not a tenant in the said
accommodation. He has been residing as the owner because it
is ancestral property.

5. It is submitted that petitioner adopted the
respondent, therefore, he is an adopted son of the petitioner,
therefore, no question in respect of tenancy arises. Beside that,
he denied bona fide and genuine need of the petitioner in
respect of accommodation.

6. Rent Controlling Authority, Gwalior (RCA) framed as
many as five issues in the case and after considering the
evidence of rival parties, dismissed the application preferred by
the petitioner, therefore, this revision has been preferred by the
petitioner challenging the said order of rejection.

7. According to learned Senior Counsel for the
petitioner, the issue No. 1 as framed by RCA, in respect of
relationship between the petitioner and respondent (that of
landlord and tenant) was not duly dealt with in logical and legal
manner. The RCA did not give any finding over issue No. 1 and
in conclusive para, only finding to the effect that the receipt in
regard to payment of rent being not found genuine and doubtful,
therefore, according to RCA, the petitioner failed to prove the
relationship of landlord and tenant between him and respondent.
Mere reference that receipts are doubtful and not genuine
cannot be termed as sufficient ground as required by
law,therefore,order appears to be perverse and illegal in respect
of issue No. 1.

8. It is further submitted that accommodation let for
residential purpose if is required by landlord for residential
purpose for himself or any member of his family or for any
purpose for whose benefit the accommodation is held then the
legislative intent is clear; wherein, it is not required for the
landlord to be the owner thereof. Therefore, ownership of the
premises is not required to be proved. In the present case, when
the petitioner purchased the property by registered sale deed
4 C.R.No. 107/2009 108/2009

(Ex. P/1) then it was sufficient to hold that petitioner is the owner
of the accommodation. The receipts in regard to payment of rent
were on record for establishing relationship of landlord and
tenant and there was no rebuttal on behalf of tenant. In such
circumstances, RCA caused perversity and jurisdictional error in
rejecting the petition preferred by the petitioner.

9. According to learned senior counsel for the
petitioner, respondent has set forth his defence in the written
statement that the property in question is an ancestral property
in which the respondent is residing as a co-title holder being an
adopted son of petitioner, therefore, he cannot be held to be a
tenant, was a defence which could not have been appreciated
because these two aspects were out of scope for reaching to the
decision under the present jurisdiction. Burden was on the
tenant to prove that he is an adopted son as well as he was
residing in the accommodation in question as a co-owner but the
RCA wrongly placed the onus over the petitioner and passed the
impugned order. In absence of any cogent evidence led on
behalf of the respondent regarding his status as adopted son,
RCA could not have passed the impugned order. The order to
that extent is perverse and contrary to facts and record. Further
submissions of petitioner was that RCA had erred in deciding
the title on the basis of provisions of Hindu Adoption and
Maintenance Act. Petitioner asserts that respondent could not
prove his status as adopted son of petitioner. Through testimony
of various witnesses, petitioner tried to assert that respondent
could not prove his status as adopted son. RCA erred in not
appreciating the bona fide need of the petitioner and passing the
impugned order; whereas,petitioner proved that he was residing
in only one room with his family members therefore, he required
tenanted premises for bona fide need of residential
accommodation. The order under challenge passed by RCA is
perverse, vitiated on account of non-discussion of the evidence
and not taking into consideration the pleadings and
evidence,therefore, deserves to be set aside.

10. On the other hand,learned senior counsel for the
5 C.R.No. 107/2009 108/2009

respondent opposed the prayer made by the petitioner and on
the basis of documents, submitted, that it is proved that
respondent is the adopted son of petitioner. Originally he is
nephew of petitioner. In year 1987-88, after divorce between
mother and father of respondent, father of respondent became
Sanyasi and being uncle of respondent, petitioner adopted the
respondent as son after divorce of parents of respondent. Since
then he was living with them as their son. He never paid any rent
to petitioner because he was the adopted son. He relied upon
the judgments rendered by Hon’ble Apex Court in the matter of
Sheodhari Rai Vs. Suraj Prakash Singh, AIR 1954 SC 758
and Tmt. Kasthuri Radhakrishnan Ors. Vs. M. Chinniyan
Anr., (2016) 3 SCC 296 and submits that findings of fact
recorded by RCA cannot be interfered with. He also relied upon
the decision of this Court in the case of Ramkishore Vs.
Gyanchandra Jain, 2010 (3) MPLJ 359 and Heeranand
Murlimal Vaswani Vs. Yashwant Vijay Saxena, 2011 (2)
MPLJ 538 and submits that availability of bona fide / genuine
need of tenanted premises is required to be proved with a
specific pleading. He prayed for dismissal of the revision
petitions.

11. Heard,learned counsel for the parties and perused
the record.

12. From the perusal of impugned order as well as
record,it appears that issue No. 1 was framed by RCA in respect
of question regarding relationship between plaintiff and
respondent as landlord and tenant. While discussing the
evidence, RCA has given two findings; one in respect of status
of respondent and another regarding respondent being adopted
son of petitioner. As far as findings of RCA regarding adopted
son is concerned, it appears that same is given on the basis of
some documents viz., marriage invitation card, envelop,
address of shop etc. Whether a person has been adopted or
not is to be determined through proceedings prescribed under
Hindu Adoptions and
Maintenance Act, 1956 and the evidence
to the effect regarding ceremonies.

6 C.R.No. 107/2009 108/2009

13. Respondent-Kamal Kishore Sharma appeared in
the witness box as DW/1. In para 13 and 14 of his examination-
in-chief he has categorically admitted that he used to write his
father’s name as Dhirendra Sharma and not Premnarayan
(present petitioner) in all documents and he has never seen any
document regarding divorce of his parents. Neither any adoption
deed has been submitted nor divorce decree has been
submitted by the respondent to prove that he is adopted by
petitioner. Merely referring some documents like marriage card,
envelop, telephone card address or etc. are not conclusive proof
regarding an important ceremony of lifetime for a person who
has been adopted or for the person who adopts anybody. In fact,
petitioner-Premnarayan (PW/1) in para 15 of his evidence, has
categorically submitted that Dhirendra Sharma was written in
marriage card as father’s name of respondent, therefore, he was
the son of Dhirendra Sharma. On the other hand, Rambabu
Sharma (DW/2) admitted the fact that he was not present in
adoption proceedings, therefore, this evidence also could not
prove the fact of adoption proceedings. DW/3-Hemlata (sister of
petitioner and aunty (Bhua) of respondent)also stood in witness
box and she mentioned the fact that mother of respondent also
came in adoption proceedings. Mere reference of presence of
mother of respondent or herself cannot prove the adoption
proceedings.

14. Therefore, it appears from the record as well as
discussion of RCA that the RCA proceeded on surmises and
conjunctures and not on cogent evidence to hold that
respondent is the adopted son of petitioner. In such a slipshod
manner, the status of a person cannot be determined. Order
appears to be perverse to that extent.

15. As far as question of relationship of landlord and
tenant is concerned, RAC in page 4 of its judgment (which goes
into page 5 also) discussed the aspect of tenancy and on the
basis of some interpolation / correction in the rent receipts came
to the conclusion that the rent receipts are doubtful. Arrival to
such findings does not meander through reasoning and
7 C.R.No. 107/2009 108/2009

therefore, would cause perversity. Neither elaborate discussion
has been made nor documents and evidence have been
appreciated. Petitioner/landlord has filed sale deed Ex. P/1 and
house tax receipts as Annexure P/3 and P/4; whereas, rent
receipts as Ex. P/7 to P/9. Respondent-Kamal Kishore Sharma
(DW/1) has taken a peculiar stand in his cross-examination
when he was confronted with rent receipts with full contents then
he denied the existence of the same but when he was
confronted only with signature by concealing other contents of
the rent receipts then he submitted that he cannot explain the
reason for denial of his signature. This peculiar aspect was
neither considered nor referred to in the impugned order. The
demeneaour of witness was overlooked by the RCA and caused
illegality and perversity. Therefore, RCA has committed a
mistake over the said aspect.

16. As regard the question regarding bona fide need is
concerned, same has been dealt within in Issue Nos. 3 and 4.
Hon’ble Apex Court in the catena of decisions in respect of
suitability of premises to landlord’s requirement that landlord is
the best judge and he has a complete freedom in the matter,
right from the decision Smt. Prativa Devi Vs. T.V.Krishnan,
(1996) 5 SCC 353 to Raghvendra Kumar Vs. Firm Prem
Machinary and Co., AIR 2000 SC 534 has held that landlord is
the best judge of his residential requirement. He has a complete
freedom in the matter. It is no concern of the Courts to dictate to
the landlord how, and in what manner, he should live or to
prescribe for him a residential standard of their own. Further in
the case of Kailash Chand and Anr. Vs. Dharam Das, 2005
SAR (Civil) 595, Hon’ble Apex Court has held that meaning of
bona fide requirement does not mean own occupation by the
landlord alone as an individual. The requirement of the family
members for residence is certainly the requirement by the
landlord for his own occupation. While deciding with issue No.
3, RCA has came to the conclusion that petitioner/landlord has
bona fide requirement but since he failed to prove that he has
any other alternative accommodation in the municipal limits,
8 C.R.No. 107/2009 108/2009

therefore, his case fails. The exhibits / rent receipts have been
duly proved by the petitioner. The respondent denied his
signature on said receipts and behaved in a peculiar manner as
referred above, which is sufficient to disbelieve his statement in
this regard. RCA has erred in reaching to the conclusion
contrary to the record. The rent receipts and the evidence led by
the parties are sufficient to believe that respondent was tenant in
the disputed house and the evidence that petitioner is owner of
the said house has to be believed. This Court in the matter of
Pandharinath S/o Ramchandra Rao Vs. Rukminibai Wd/o
Chotelal and Ors., 2006 (1) MPLJ 338, in almost similar fact
situation has given the finding in respect of establishment of
relationship between the parties as landlord-tenant. Once the
RCA has concluded that petitioner’s requirement is bona fide
then onus is on the respondent to prove that petitioner has
suitable alternative accommodation in the municipal limits.

17. A very peculiar aspect figures out in the impugned
order is that after giving findings regarding issue Nos. 3 and 4,
RCA has referred the judgment relied upon by the
petitioner/landlord and RCA has simply referred these
judgments. This approach is cryptic, casual and creates a
suspicion than clarification. If RCA wanted to discuss the
judgments relied upon by the petitioner then it should have been
referred and discussed the same while deciding the issue Nos. 3
and 4 and not after deciding the issue treating them as an empty
formality. This aspect also worth requires to be considered while
considering the case in hand and this aspect further
substantiates the argument of petitioner that order impugned is
perverse and passed in a cryptic manner.

18. Once the RCA has concluded that petitioner has
bona fide requirement but he could not prove, then it appears
that he proceeded on assumptions and not on cogent evidence.
In the considered opinion of this Court, the order appears to be
grossly erroneous and if allowed to stand, it would amount to
miscarriage of justice. The respective rights of the parties cannot
be decided in such a slipshod manner. Neither the onus has
9 C.R.No. 107/2009 108/2009

been placed rightly to prove the case of adoption of respondent
nor the onus to prove that petitioner/landlord has alternative
accommodation in the municipal limit can be placed on
petitioner and therefore, impugned order suffers from
miscarriage of justice and contrary to law. Therefore, exercising
powers as revisional authority under
Section 23-E of the Act
which although is not like appellate jurisdiction but certainly
wider than jurisdiction under Section 115 of CPC as the power
to look into the correctness of the finding and for preventing
miscarriage of justice are available and therefore, certainly
instant revisional jurisdiction is wider than the codified revisional
jurisdiction under Section 115 of the Civil Procedure Code .

19. The judgments relied by the respondent regarding
scope of revision are manifestation of settled law and there is
no iota of doubt that revisional jurisdiction under the RCA is not
like appellate jurisdiction. Hon’ble Apex Court in the case of
TMT. Kasthuri Radhakrishnan (supra) has explained the
jurisdiction in para 33-34 of the judgment, which reads as
under:-

33) So far as the issue pertaining to exercise of
revisional jurisdiction of the High Court while
hearing revision petition arising out of eviction
matter is concerned, it remains no more res integra
and stands settled by the Constitution Bench of this
Court in Hindustan Petroleum Corporation
Limited vs. Dilbahar Singh (2014) 9 SCC 78. Justice
R.M. Lodha, the learned Chief Justice speaking for
the Bench held in para 43 thus:

“43. We hold, as we must, that none of the above
Rent Control Acts entitles the High Court to
interfere with the findings of fact recorded by the
first appellate court/first appellate authority
because on re-appreciation of the evidence, its view
is different from the court/authority below. The
consideration or examination of the evidence by the
High Court in revisional jurisdiction under these
Acts is confined to find out that finding of facts
recorded by the court/authority below is according
to law and does not suffer from any error of law. A
finding of fact recorded by court/authority below, if
perverse or has been arrived at without
consideration of the material evidence or such
finding is based on no evidence or misreading of the
evidence or is grossly erroneous that, if allowed to
stand, it would result in gross miscarriage of justice,
is open to correction because it is not treated as a
10 C.R.No. 107/2009 108/2009

finding according to law. In that event, the High
Court in exercise of its revisional jurisdiction under
the above Rent Control Acts shall be entitled to set
aside the impugned order as being not legal or
proper. The High Court is entitled to satisfy itself as
to the correctness or legality or propriety of any
decision or order impugned before it as indicated
above. However, to satisfy itself to the regularity,
correctness, legality or propriety of the impugned
decision or the order, the High Court shall not
exercise its power as an appellate power to
reappreciate or reassess the evidence for coming to a
different finding on facts. Revisional power is not
and cannot be equated with the power of
reconsideration of all questions of fact as a court of
first appeal. Where the High Court is required to be
satisfied that the decision is according to law, it may
examine whether the order impugned before it
suffers from procedural illegality or irregularity.”

34) Similarly, so far as the scope and nature of
inquiry, which is required to be undertaken to
examine the title of the landlord in eviction matter
is concerned, it also remains no more res integra
and stands settled in the case of Sheela Ors. Vs.
Firm prahlad Rai Prem Prakash, (2002) 3 SCC 375.
Justice R.C.Lahoti (as His Lordship then was)
speaking for the Bench held that the concept of
ownership in a landlord-tenant litigation governed
by Rent control laws has to be distinguished from
the one in a title suit. Indeed, ownership is a relative
term, the import whereof depends on the context in
which it is used. In rent control legislation, the
landlord can be said to be the owner if he is entitled
in his own legal right, as distinguished from for and
on behalf of someone else to evict the tenant and
then to retain control, hold and use the premises for
himself. What may suffice and hold good as proof of
ownership in landlord-tenant litigation probably
may or may not be enough to successfully sustain a
claim for ownership in a title suit.”

20. Similarly, Division Bench of this Court in the case of
Surtyomal Vs. Smt. Chandabai, 2004 (3) MPLJ 438 has held
that revisional jurisdiction of High Court under
Section 23-E of
the Act is narrower than appeal but wider than power of revision
given under Section 115 of CPC. Therefore, there is sufficient
power for thisCourt available to interfere in the order of RCA and
by invoking such power / jurisdiction, this Court has come to the
conclusion about the perversity caused by the RCA.

21. The judgments as referred by learned senior
counsel for the respondent is of no help to him in the given fact
11 C.R.No. 107/2009 108/2009

situation. So far as case referred in the matter of Sheodhari Rai
(supra) is concerned, it moved in a different factual realm. Here
the rent receipts and evidence of petitioner’s witnesses establish
the fact of relationship between the petitioner and respondent as
landlord-tenant. As regards case of Ramkishore (supra), the
same is of no help to the respondent because here the question
of availability of alternative vacant accommodation is not
established by the respondent, therefore, the said judgment of
coordiante Bench is of no help to the respondent. The case as
referred by respondent in the matter of Tmt. Kasthuri
Radhakrishnan (supra), virtually helps the cause of petitioner
inasmuch as the scope of revision arising out of the instant
eviction matter, if the order of RCA is allowed to stand then it
would cause miscarriage of justice, therefore, power is available
to interfere.

22. So far as Civil Revision No. 108/2009 in respect of
bona fide requirement for commencing business of General
Store is concerned, the RCA as framed additional issues in
respect of one other shop, which was rendered vacant. The said
additional issues No. 1 and 2 have been decided by the RCA
again in a very cryptic manner as it looking to the fact that a
shop has been rendered vacant, has concluded that the bona
fide requirement has come to an end. Whereas, it is always for
the landlord to decide the suitability of the shop for starting his
business. The said subjective choice cannot be interfered into by
the tenant as well as by this Court. Landlord is the best judge to
decide the suitability of the accommodation. Once the bona fide
requirement is pleaded and proved then RCA has erred in
substituting its view regarding the suitability of the
accommodation. The shop was rendered vacant duringthe
pendency of the application before the RCA, therefore, the bona
fide requirement at the time of filing of the application is to be
seen. On this count also, RCA has caused illegality and
perversity.

23. In the fact situation of the case and after cumulative
analysis of pleadings, evidence and impugned orders, in the
12 C.R.No. 107/2009 108/2009

considered opinion of this Court, orders impugned deserves to
be set aside and the petitions for eviction preferred by the
petitioner deserve to be allowed on the ground of bona fide
requirement/ need of the petitioner as pleaded and proved in
the petitions by the petitioner.

24. Similarly, both the orders of even date i.e. 3/8/2009
passed by Rent Controlling Authority, Gwalior in case No. 18/02-
03/90-7 and 10/01/02/90-7 are perverse and passed in a
slipshod manner, therefore, interference is caused in both these
revision petitions (C.R.No. 107/2009 108/2009), therefore,
both orders are hereby set aside with the observation that
respondent is liable to be evicted from the tenanted premises as
referred in the civil revisions from the Municipal House No.
51/07, situate at Naya Bazar, Lashkar, Gwalior.

25. Revision petitions stand allowed and disposed of.

(Anand Pathak)
Judge

jps/-

JAI
Digitally signed by JAI PRAKASH
SOLANKI
DN: cIN, oHIGH COURT OF M.P.

BENCH GWALIOR, ouP.S.,

PRAKASH
postalCode474011, stMadhya
Pradesh,
2.5.4.2021a61bf5c087ff6d5bbc8d
38b611677f4e4306c281cca875991

SOLANKI d2a0b6545c503, cnJAI PRAKASH
SOLANKI
Date: 2017.12.04 13:01:38 +05’30’

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