HIGH COURT OF MADHYA PRADESH
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(1.) THIS appeal by the defendant arises out of a suit brought by the plaintiffs for his ejectment from the suit accommodation which is a plot of land, demarcated by letters E F G H and the portion in red in the plaint map and for arrears of rent and mesne profits.
(2.) THE relevant facts, shortly stated, are these : It appears that originally the property bearing plot No. 21, block No. 1, together with the bungalow no. 105 (old) situated thereon, in North Civil Lines,; Jabalpur, belonged to one shiraz Ahmad. After his death, it devolved on his heirs ; some of them having migrated to Pakistan, the property was declared to be. evacuee property and vested in the Custodian. The defendant's father was allotted the demised portion admeasuring 70 x 70 sq. ft. by the Custodian on a rent of Rs. 5 per month and after his death, the defendant became a tenant thereof. Admittedly, the letting of the plot was for non-residental purposes. Ms. Roshan raza and some of the other heirs having stayed on, purchased the entire pro-party from the Custodian under the Evacuee Interest Separation Act when it was declared to be a composite property. Thereafter, the rightful owners transferred the same to Ahmad Ali, Gulam Ali and Sulemanji Jinahbhai, the predecessors- in title of the plaintiffs. By virtue of a registered released deed dated 1-10-1957, the plaintiffs 2 and 3, Gulam A!i and Sulemanji have now become the present owners of the entire property including the land in dispute. The defendant, therefore, by operation of law, became their tenant of the demised portion, under section !09 of the Transfer of Property Act. The defendant has admittedly attorned to them and was paying rent in respect of the land until the lease was determined by the plaintiff's notice, Ex. P-4 dated 29-4-1967 w. e. f. 30-6-1967. The plaintiffs' claim for eviction was based upon section 12 (1) (n) and (o) of the Madhya Pradesh Accommodation Control Act, 1961, on the grounds that (1) the plaintiffs 2 and 3 required the demised land for the construction of a house on it, and (2) the defendant had, without the written permission of the landlords, wrongfully encroached upon the land shown in red in the plaint map and has not vacated the same in spite of their written notices in that be half. The defendant, while admitting that he was a tenant of the demised portion, marked by letters E F G H, denied the alleged encroachment and pleaded that from the very inception he was a tenant of the land in suit i. e. including the red portion in the plaint map. Both the Courts below have found that the plaintiffs have established their grounds for eviction under section 12 (1) (n) and (o) of the Act.
(3.) FIRST of all, learned counsel for the appellant urges that the plaintiffs' suit is barred under section 12 (4) of the Act. The submission proceeds on the assumption that the claim for eviction is in reality on the grounds specified in clause (e) of section 12 (l ). No such plea was raised in the written statement nor any issue framed as re cards maintainability of the suit. It is, however, urged that the plaintiffs 2 and 3, on their own showing, a queried ownership in the property by virtue of the release deed dated 1-10-1967 and since they, according to P. W. 2 Sulemanji Jinahbhai, want to construct a residential house, their claim falls really under section 12 (i) (e) and, therefore, the suit which was brought on 22-12-1967 was not maintainable, having regard to the terms of section 12 (4) That section reads :-
"where a landlord has acquired any accommodation by transfer, no Suit for the eviction of tenant shall be maintainable under sub-section (1) on the ground specified in clause (e) or clause (f) thereof, unless a period of one year has elapsed from the date of the acquisition. " On a plain construction of the section, it has no application to a suit for eviction brought on grounds other than those mentioned; in section 12 (1) (e) or (f ).;
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