SAMEER KUMAR PAL & ANOTHERversusSHEIKH AKBAR & OTHERS

                          [2010] 9 S.C.R. 94


A               SAMEER KUMAR PAL & ANOTHER
                                 v.
                    SHEIKH AKBAR & OTHERS
                  (Civil Appeal No. 2398 of 2002)
                            JULY 28, 2010
B
     [DALVEER BHANDARI AND K.S. RADHAKRISHNAN,
                                  JJ.]

        Code of Civil Procedure, 1908 - s. 100 - Second appeal
C - Suit for eviction - Tenant's case that suit property was a wakf
  property, thus, trial court had no jurisdiction to adjudicate thA
  matter but no plea raised before trial court as also first
  appellate court that suit property is a joint family property -
  Suit decreed in favour of landlord holding that suit property
D was not a wakf property- Order of trial court upheld by first
  appellate court - Second appeal - High Court allowing the
  same by setting aside the concurrent findings of fact -
  Justification of - Held: Not justified - High Court without any
  pleadings or basis held that suit property is a joint family
E property - It was not the case of tenants either before trial court
  or first appellate court- Thus, order of High Court is set aside
  and that of trial court and first appellate court, upheld - M. P.
  Accommodation Control Act, 1961 - ss. 12 (1) (c), 12 (1) (f)
  and 12 (1) (g).
F     The appellant-landlord filed a suit for eviction against
  the respondent-tenant ulss. 12(1 )(c), 12(1 )(f) and 12(1 )(g)
  of the M.P. Accommodation Control Act, 1961. The
  respondents filed a written statement that the suit
  property was a Wakf property, thus, the trial court did not
G have the jurisdiction to adjudicate the matter but it
  nowhere pleaded that the suit property is a joint family
  property. The trial court held that the suit property is not
  a Wakf property and decreed the suit in favour of the

H                                 94
SAMEER KUMAR PAL & ANR. v. SHEIKH AKBAR &                95
                 ORS.
appellants. Before the first appellate court also, the        A
respondents did not raise the plea that the suit property
was a joint family property. The first appellate court
upheld the order of the trial court. The respondent nos.
1 and 2 then filed a second appeal and the same was
allowed. The High Court set aside the concurrent findings     B
of fact. Hence the appeal.

     Allowing the appeal, the Court

     HELD: The High Court without any pleadings or
basis, held that the suit property is a joint family property. C
The High Court erroneously observed that the said
property was purchased by the father of the appellants
and his brothers, whereas in fact the property was
purchased by the appellants by sale deed dated
31.12.1991. The assumption of wrong fact has led to total D
erroneous finding and conclusion. The High Court in the
impugned judgment weaved out an entirely new case.
Neither there was any pleading nor it was the case of the
rc:>iJondents either before the trial court or the first
appellate court. The High Court gravely erred in arriving E
at the finding without any basis whatsoever. PW1 was
examined by the trial court and in his testimony he
categorically stated that he and his elder brother SK-
appellant were owners of the property in question. The
High Court was not justified in reversing the concurrent F
findings of fact. Thus, the impugned judgment of the High
Court is set aside and that the judgment and order of the
trial court, as upheld by the first appellate court, is
restored. [Paras 8, 9 and 13] [99-C-D; G-H; 100-A; 101-F-
G]                                                            G
    Mst. Rukhmabai v. Lala Laxminarayan and Ors. AIR
1960 SC 335; Kuppala Obu/ Reddy v. Bona/a Venpata
Narayan Reddy (dead) by LRs. (1984) 3 SCC 447; Mudi
Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh
(1969) 1 sec 386 - relied on.                                 H
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A        Randhi Appa/aswami v. Randhi Suryanarayanamurti and
    Ors. ILR 1948 Mad 440 - approved.

                          Case Law Reference:
         AIR 1960 SC 335           Relied on.            Para 10
B
         (1984) 3 sec 447          Relied on.            Para 11
         (1969) 1 sec 386          Relied on.            Para 12

         ILR 1948 Mad 440          Approved.             Para 12

C       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2398 of 2002.

        From the Judgment & Order dated 17.08.2001 of the High
    Court of Judicature Madhya Pradesh at Jabalpur in Second
o   Appeal no. 596 of 1999.

        kohil Arya, Akshat Srivastav, Nitin Gaur, P.P. Singh for the
    Appellants.

      Abdul Karim Ansari (for Ram Swarup Sharma) for the
E Respondents.

         The Judgment of the Court was delivered by

      DALVEER BHANDARI, J. 1. This appeal is directed
  against the judgment and order of the High Court of Madhya
F Pradesh at Jabalpur dated 17.8.2001 passed in Second
  Appeal No.596 of 1999.

        2. The appellant is particularly aggrieved by the impugned
  judgment because the concurrent findings of fact have been set
G aside by the High Court in the second appeal without any basis,
  justification or cogent grounds.

        3. Brief facts necessary to dispose of this appeal are
    recapitulated as under:
H
SAMEER KUMAR PAL & ANR. v. SHEIKH AKBAR &                         97
       ORS. [DALVEER BHANDARI, J.]

      Appellants Sameer Kumar Pal and Subhash Chandra Pal,              A
both sons of Laxminarayan Pal (who were the plaintiffs in the
trial court), filed a suit in the Court of the Civil Judge, Jabalpur.
In the plaint, it was clearly incorporated that the appellants were
the owners in possession of Shop No.1214 (Old No.892), New
Corporation Chowk, Wright Town, Jabalpur. They purchased the            B
said shop vide sale-deed dated 31.12.1991.

     4. The appellants filed a suit for eviction against the
defendants (respondents herein) under section 12(1 )(c) (that the
tenant has created nuisance), 12(1)(f) (for bona fide requirement       C
of landlord for non-residential purposes) and 12(1 )(g) (bona
fide requirements of landlord to carry out repairs) of the M.P.
Accommodation Control Act, 1961. The relevant parts of
section 12 of the Act are set out as under:

     "12. Restriction on eviction of tenants.-(1) Notwithstanding       D
     anything to the contrary contained in any other law or
     contract, no suit shall be filed in any civil court against a
     tenant for his eviction from any accommodation except on
     one or more of the following grounds, only, namely-
                                          ,
                                                                        E
     (a) - (b) x                    x                  x
      (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           F
             which is likely to affect adversely and substantially
             the interest of the landlord therein:

      (d) - (e)    x            x                 x
      (f)    that the accommodation let for non-residential             G
             purpose is required bona fide by the landlord for the
             purpose of continuing or starting his business or
             that of any of his major sons or unmarried
             daughters if he is the owner thereof or for any
                                                                        H
    98          SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A                 person for whose benefit the accommodation is
                  held and that the landlord or such person has no
                  other reasonably suitable non-residential
                  accommodation of his own in his occupation in the
                  city or town concerned;
B
          (g)     that the accommodation has become unsafe, or
                  unfit for human habitation and is required bona fide
                  by the landlord for carrying out repairs which cannot
                  be carried out without the accommodation being
                  vacated."
c
       5. In the written statemer:t filed in the trial court, the
  respondents herein raised the main objection that the appellants
  herein are not the owners of the suit property and the trial court
  had no jurisdiction to adjudicate the matter as the suit property
D has been a Wakf property. It may be pertinent to mention that
  in the written statement the respondents nowhere took the plea
  that the suit property, namely 'Madras Hotel' is a joint family
  property. The trial court held that the appellants were in bona
  fide need of carrying on the business of sweets and for running
E a restaurant. No other vacant property was in possession of the
  appellants in Jabalpur. It was also held that the shop in question
  is very old, unsafe and in dilapidated condition. There is need
  to repair and carry out some structural changes in the shop
  which cannot be carried out unless the same is made available
F to the appellants. The trial court clearly held that the appellants
  are in bona fide need of the suit property. The trial court also
  held that the respondents have not paid rent since September,
  1992 and decided the issue of default in favour of the
  appellants. The trial court categorically held that the suit property
G is not the Wakf property and decreed the suit of the appellants.

         6. The respondents preferred first appeal before the court
    of Xlth Additional District Judge, Jabalpur. The entire evidence
    was re-appreciated by the appellate court independently and
    the court clearly held that the respondents have failed to prove
H
SAMEER KUMAR PAL & ANR. v. SHEIKH AKBAR &                          99
       ORS. [DALVEER BHANDARI, J.]

that the appellants are in possession of any other non-                  A
residential accommodation in the e11tire city of Jabalpur. The
first appellate court upheld the findings of the trial court. It may
be pertinent to mention that before the first appellate court also,
no plea was taken that the property in question, namely the
'Madras Hotel', was a joint family property. The first appellate         B
court dismissed the appeal.

     7. Respondent nos. 1 & 2, aggrieved by the judgment of
the Xlth Additional District Judge, Jabalpur, preferred a second
appeal before the High Court of Madhya Pradesh at Jabalpur.              C

     8. The High Court in the impugned judgment, without any
pleadings or basis, held that the property namely 'Madras
Hotel' is a joint family property. The High Court erroneously
observed that the property namely 'Madras Hotel' was
purchased by the father of the appellants and his brothers,              D
whereas in fact the property was purchased by the appellants
vide sale deed dated 31.12.1991. The assumption of wrong
fact has led to total erroneous finding and conclusion. The High
Court in para 8 observed as under:
                                                                         E
     " ...... It is firmly established that the building known as
     'Madras Hotel' belongs to Laxminarayan Pal and his two
     sons who are the plaintiffs. That is their joint family property.
     This building was purchased by Laxminarayan when he
     was carrying on business with his two brothers and the
     partition took place long after the acquisition of that
                                                                         F
     building. In that partition that building was allotted to
     Laxminarayan alone ...... "

      9. The High Court in the impugned judgment weaved out
an entirely new case. Neither there was any pleading nor it was          G
the case of the respondents either before the trial court or the
first appellate court. The High Court gravely erred in arriving at
the finding without any basis whatsoever. Subhash Chandra
Pal, PW1 was examined by the trial court and in his testimony
                                                                         H
    100      SUPREME COURT REPORTS                  [2010] 9 S.C.R

A   he categorically stated that he and his elder brother Sameer
    Kumar were owners of the property in question.

        10. The appellants have relied on Mst. Rukhmabai v. Lala
    Laxminarayan & Others AIR 1960 SC 335 in which this court
    held that there is no presumption that any property whether
8
    moveable or immoveable held by a member of a joint Hindu
    family is joint family property. The burden lies upon the person
    who asserts that a particular property is joint family property to
    establish that fact.

C         11. The appellants further relied on Kuppa/a Obul Reddy
    v. Bona/a Venpata Narayan Reddy (dead) by LRs. (1984) 3
    sec 447 in which this court held that there were no pleadings
  as to the properties being joint properties and no issue as to
  joint family had been raised and there was no proper evidence
D to make out any case of the properties being joint family
  properties, was raised and no such issue could possibly have
  been raised in absence of the pleadings. The court further held
  that in absence of any pleading and any issue and further in
  the absence of any proper evidence, the view expressed by the
E learned judge of the High Court that the properties were joint
  family properties is clearly unwarranted. There may be
  presumption that there is a Hindu Joint Family but there can
  be no presumption that the joint family possesses joint family
  properties.
F         12. The appellants further relied on Mudi Gowda
  Gowdappa Sankh v. Ram Chandra Ravagowda Sankh (1969)
  1 sec 386 wherein this Court held that, of course, there is no
  presumption that merely because the family is joint so the
  property is also joint. So the person alleging the property to be
G joint family property must prove it. In that case, this Court further
  held that the burden of proving that any particular property is
  joint family property is, therefore, in the first instance, upon the
  person who claims it to be coparcenary property. But if the
  possession of a nucleus of the joint family property is either
H admitted or proved, any acquisition made by a member of the
SAMEER KUMAR PAL & ANR. v. SHEIKH AKBAR & 101
       ORS. [DALVEER BHANDARI, J.]
joint family is presumed to be joint family property. The Court A
carved out an exception and observed that, "this is, however,
subject to the limitation that the joint family property must be
such as with its aid the property in question could have been
acquired. It is only after the possession of an adequate nucleus
is shown, that the onu$ shifts on to the person who claims the B
property as self-acquisition to affirmatively make out that the
property was acquired without any aid from the family estate."
In Mudi Gowda Gowdappa Sankh (supra), this court heavily
relied upon the ratio of Privy Council judgment in Randhi
Appa/aswami v. Randhi Suryanarayanamurti & Others ILR              c
1948 Mad 440 wherein the legal position of Hindu Law has
been beautifully articulated by Sir John Beaumont. The relevant
portion of the judgment is reproduced as under:

       "Proof of the existence of a joint family does not lead to
       the presumption that property held by any member of the D
       family is joint, and the burden rests upon anyone asserting
       that any item of property was joint to establish the fact. But
       where it is established that the family possessed some joint
       property which from its nature and relative value may have
       formed the nucleus from which the property in question may E
       have been acquired, the burden shifts to the party alleging
       self-acquisition to establish affirmatively that the property
       was acquired without the aid of the joint family property."

     13. In this view of the matter, we are constrained to set F
aside the impugned judgment of the High Court. The High Court
was not justified in reversing the concurrent findings of fact in
this case. Consequently, the appeal is allowed and the
impugned judgment of the High Court is set aside and the
judgment and order of the trial court, as affirmed by the first G
appellate court, is restored. In the facts and circumstances of
the case, the parties are directed to bear their own costs.

N.J.                                            Appeal allowed.