The court held that the undisputed legal heirs of a deceased landlord are entitled to eviction, while the second wife failed to prove her claim as a legal heir due to lack of evidence regarding her marriage.

JUDGMENT

By this common judgment, S.A. No.2662/2024 and S.A. No.3137/2024 are being decided.

2. S.A. No.2662/2024 has been filed by Laxminarayan Shivhare, Smt. Sunita Shivhare and Smt. Shakuntala Shivhare, against common judgment dated 02/09/2024 passed by XV District Judge, Gwalior in RCA No.129/2024 arising out of judgment and decree dated 14/12/2023 passed by V Civil Judge, Junior Division, Gwalior in RCSA No.566/2017.

S.A. No.3137/2024 has been filed by Suneel Tuteja against common judgment dated 02/09/2024 passed by XV District Judge, Gwalior in RCA No.145/2023 arising out of judgment and decree dated 12/07/2023 passed by XI Civil Judge, Junior Division, Gwalior in RCSA No.831/2018.

3. Facts necessary for disposal of present appeals, in short, are that Bhogiram Shivhare was the owner of Municipal Building No.58 (New No. 1151), Ward No.11, Kapil Market, Hazira, Gwalior. Suneel Tuteja, who had filed RCA No.145/2023 & S.A. No.3137/2024, was inducted by Bhogiram Shivhare as his tenant. Bhogiram Shivhare expired sometimes in the month of December, 2016. Bhavna Shivhare, who is respondent in S.A. No.3137/2024 filed a suit (RCSA No.831/2018) for eviction against Suneel Tuteja claiming herself to be the owner, being legally wedded wife of Bhogiram Shivhare, whereas Laxminarayan Shivhare, Sunita Shivhar and Shakuntala Shivhare (appellants in S.A. No.2662/2024) also filed RCSA No.566/2017 for eviction. The XI Civil Judge, Junior Division, Gwalior, by judgment and decree dated 12/07/2023 decreed the suit (RCSA No.831/2018) in favour of Bhavna Shivhare for eviction on the ground of arrears of rent by holding that Suneel Tuteja was tenant at the rate of Rs.8,000/- per month. Similarly, V Civil Judge, Junior Division, Gwalior by judgment and decree dated 14/12/2023 decreed the suit (RCSA No.566/2017) in favour of Laxminarayan Shivhare, Smt. Sunita Shivhare and Shakuntala Shivhare on the ground of arrears of rent by holding that Suneel Tuteja was their tenant at monthly rent of Rs.5500/-. Thus, in respect of same building and same tenant, two different civil suits were filed by two set of persons before two different trial Courts and both the trial Courts decreed the respective suits.

Being aggrieved by the judgment and decree dated 12/7/2023 passed in RCSA No.831/2018 which was filed by Bhavna Shivhare, tenant Suneel Tuteja preferred RCA No.145/2023. Similarly, against the judgment and decree dated 14/12/2023 passed in RCSA No.566/2017, tenant Suneel Tuteja preferred RCA No. 129/2024. Both the Regular Civil Appeal Nos. 145/2023 and 129/2024 filed by tenant Suneel Tuteja have been decided by XV District Judge, Gwalior by common impugned judgment and decree dated 02/09/2024. It was held by the appellate Court that since Bhavna Shivhare had collected rent for a period of two months i.e. January and February, 2017, therefore, she has to be treated as Bhumiswami/owner and, therefore, the suit filed by Bhavna Shivhare (RCSA No.831/2018) was decreed whereas the suit filed by Laxminarayan Shivhare, Smt. Sunita Shivhare and Smt. Shakuntala Shivhare (RCSA No.566/2017) was dismissed being barred by res judicata in view of judgment and decree dated 12.07.2023 passed in RCSA No.831/2018.

Laxminarayan Shivhare, Smt. Sunita Shivhare and Shakuntala Shivhare have filed S.A. No.2662/2024 against dismissal of their suit, whereas Suneel Tuteja has filed S.A. No.3137/2024 against judgment of eviction passed against him.

4. S.A. No.2662/2024 has been filed on the following proposed substantial questions of law:-

i. Whether, Ld. Court below erred in law dismissing the suit of plaintiff when admittedly when defendant was tenant of father of appellant?

ii. Whether, Bhawana Shivhare who is said to have married during the lifetime of mother of plaintiff can claim any right of the property of Late Shri Bhogiram?

iii. Whether merely on the basis of payment of rent to Bhawana Shivhare after death of Bhogiram it can be said that she became landlord when the tenancy was create