1981 Supreme(MP) 649

H. G. Mishra. J.
Laxminaryan v. Nagar Palika. Mandsaur.
S. A. No. 363 of 1978 (J); Decided on 27-11-1981.

Headnote:(1) Accommodation Control Act.1961 (MP) -- S. 3 (1) (b) -- applicability of the Act --exemption from -- when available -- all essential facts entitling exemption should be pleaded and proved - issue on the point should also be raised.

        (2) Civil P.C. 1908 -- O. 14, R. 1-- feaming of issue -- issue not framed as vital question like exemption from an enactment -- trail defective.

        (3) Evidence Act, 1872 -- S. 116 - estoppel -- doctrine of -- when not applicable -- landlord claiming benefit of exemption under enactment-doctrine has no application.

        (4) Landlord and Tenant -- land lordship and ownership are two different concepts.

        This second appeal has been admitted on the following substantial question of law:

        "Whether in the absence of necessary pleadings by the plaintiff and in the facts and circumstances of the case the lower appellate Court was not justified in holding that the provisions of the M. P. Accommodation Control Act do not apply to the suit accommodation because of section 3 (1) (b) of the M. P. Accommodation Control Act ?"

        Held: In order to attract the applicability of the aforesaid exemption as per clause (b) above, existence of the following conditions must be pleaded and proved (a) the suit in respect of accommodation which is the property of a local authority and (b) the suit accommodation should be one which is used exclusively for nond`residential purposes. Now the expression is property of appears to be used to convey the sense of belonging to.

        The immunity from operation of the Act carved out by its section 3 (1) (b) is obviously in respect of the premises and is not with respect to the parties to the contract of tenancy. Accordingly, for the suit premises are shown to belong to a local authority, the Act will not be applicable to such premises. This is what has been held by this Court in Radhelal v. Satnam Singh (1977 JLJ 200) wherein reliance has been placed on the ratio of. Bhatia Co-operative Housing Societys case AIR 1953 SC 16. In order to get the benefit of the exemption under S. 3 (1) (b), it is necessary to show that the suit accommodation from which eviction is sought belongs to a local authority like the Nagar Palika Parishad. Further more, what is to be pleaded and proved is that the suit accommodation is used exclusively for nond`residential purposes. the exemption does not answer of accommodation not used exclusively for nond`residential purposes. accordingly, in case accommodation is used for residential purposes or composite purposes, the exemption will not enure.

        On 18-3-77 the defendant moved an application for amendment calculated to have the effect of withdrawal of that admission and instead inserted the plea that the plaintiff Nager laika is not the owner, though landlord of the suit premises, this amendment was open on the ate fixed for recording of evidence of the parties, the issue framed by the trail Court were on the basis of the pleadings as they stood before the amendment, result of which there was no issue on the vital question, namely as to whether the plaintiff Nagar palika Parishad is owner of the suit premises. No doubt, none of the parties at any stage of here to before prayed for raising of an issue on the point. The Courts below also did not consider it necessary to form and try any issue on the point. It appears that the plaintiff was successful in persuading the Court below in considering the issue on the point is not material, inasmuch as the defendant ins precluded form denying the title of the plaintiff respondent in view of the doctrine of estoppel enshrined in S.116 of the Indian Evidence Act, 1872. It is true that ownership and landlordship are two different concepts and normally is cases of ejectment a tenant inducted in by the person bringing the suit cannot be permitted to deny his title. However, in cases of present character where the landlord claims benefit of exemption carved out by the Act, the doctrine of estoppel cannot come to the rescue of the plaintiff landlord and he cannot be treated to be absolved from pleading and proving that he is also owner of the suit premises. In order to get benefit of the exemption, all facts essential to entitle him to claim the benefit of the exemption have to be pleaded and proved. In this view of the matter, both the Courts below acted illegally in omitting to raise an issue on the aforesaid vital question and further erred in granting benefit of the exemption carved out by S.3 (1) (b) if the Act to the plaintiff.

        From the aforesaid discussion it is clear that the trail of the suit is rendered radically defective due to absence of tan issue on a question vial for decision of the suit. (1892) AC 598, AIR 1953 SC 16 & 1977 JLJ 200 relied on. Appeal allowed. Case remanded to trail Court.