Chattisgarh High Court

Surendra Singh Amodiya vs Mishri Lal Kashyap on 12 July, 2021

                                      1

                                                                        NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                            F.A No.400 of 2017
                        Reserved on 30.06.202 1
                       Pronounced on 12.07.2021

Surendra Singh Amodiya S/o M.S. Amodiya, Aged About 40 Years R/o
Behind    Nandu          Garage,    Telipara Bilaspur, District  Bilaspur
Chhattisgarh.............. Defendant                       --- Appellant
                                  Versus
Mishri Lal Kashyap S/o Mahadev Prasad Kashyap, Aged About 50 Years
R/o Behind Hotel Ajit, Telipara Bilaspur, Tehsil And District Bilaspur
Chhattisgarh................. Plaintiff No. 1       -----Respondent

For Appellant: Shri Arvind Shrivastava, Advocate. For Respondent: Shri Ahmad Hussain, Advocate.

Single Bench:Hon'ble Shri Sanjay S. Agrawal, J C A V Judgment

1. This Appeal has been preferred by the Defendant under Section 96

of the Code of Civil Procedure, 1908 (for short 'the CPC') questioning the

legality and propriety of the judgment and decree dated 25.07.2017

passed in Civil Suit No.300-A/2014, whereby the trial Court has decreed

the Plaintiff's claim for eviction on the ground enumerated under Section

12(1)(f) of the Chhattisgarh Accommodation Control Act, 1961 (for short

'the Act of 1961'). The parties to this Appeal shall be referred hereinafter

as per their description in the Court below.

2. Briefly stated, the facts of the case are that the Plaintiff instituted a

suit claiming eviction of the Defendant from the suit premises on the

ground enumerated under Section 12(1)(b) and (f) of the Act of 1961.

According to him, the Defendant was inducted in the suit premises i.e.

Shop Nos.3 & 4 having area of 12' x 15' = 180 sq.ft under the written

tenancy dated 06.07.2005 for a period of 11 months as described in red

colour in Plaint Schedule - 'A' situated in front of Hotel Ajit, Telipara road,

Juna Bilaspur which are constructed over the land bearing Khasra

No.367/14 admeasuring 0.02 acres. It is pleaded in the Plaint that the

Plaintiff needs the suit shops bona fidely for carrying out the business of

himself and also for his sons and daughters for which, a reasonable and

suitable accommodation is not available with him in the concerned city of

Bilaspur, while the Defendant has other premises available with him for his

business. It is pleaded further that without his consent, the Defendant had

sub-let the suit premises to someone else illegally and pleaded further that

he has failed to pay him the rent for a period of 25 months commencing

w.e.f. April, 2006 up to April, 2008 which goes to Rs.1,15,000/- despite his

oral and written notice being given. Therefore, he has been constrained to

institute the suit in the instant nature, instituted on 01.04.2008.

3. While denying the alleged bona fide need of the Plaintiff, it is stated

by the Defendant that he was inducted as a tenant by his father Mahadev

Prasad Kashyap in the year 1992 and now he is continuously in

possession at the monthly rent of Rs.4,600/-. While denying further the

creation of sub-tenancy, it is contested further on the ground that after the

death of the Plaintiff's father, the suit premises will be inherited by all his

heirs and the Plaintiff alone will not be the sole owner of it, and therefore,

the suit as brought by him is not maintainable and is liable to be dismissed.

It is pleaded further that the entire rent of Rs.1,15,000/- has been

deposited in CCD on 16.05.2008 with the permission of the Court.

4. After considering the evidence led by the parties, it was held by the

trial Court that the Plaintiff is the owner of the suit premises acquired from

his father which he needed bona fidely for his alleged need not only for

himself but also for his children and held further that the suitable and

alternative accommodation for the said purpose is not available with him in

the concerned city. As a consequence of it, the trial Court decreed the

claim on the ground enumerated under Section 12(1)(f) of the Act of 1961.

This is the order, which has been questioned by way of this Appeal.

5. Learned Counsel appearing for the Appellant/Defendant submits

that the finding of the Court below holding that the suit premises is needed

by the Plaintiff bona fidely for his alleged non-residential purposes is

apparently contrary to law. According to him, before granting a decree of

eviction under Section 12(1)(f) of the Act of 1961, it ought to have seen

and held that the Plaintiff has failed to establish his ownership over the suit

premises, and therefore, in absence of fulfillment of the ingredients

required under the said provision, no decree as such, ought to have been

granted. It is contended further that the Plaintiff has failed to establish his

alleged need bona fidely, and therefore, he is not entitled to a decree for

eviction.

6. On the other hand, learned Counsel appearing for the

Respondent/Plaintiff has supported the impugned judgment and decree as

passed by the trial Court.

7. I have heard learned Counsel appearing for the parties and perused

the entire record carefully.

8. The question which arises for determination in this Appeal is as to

"whether the Court below was justified in holding that the Plaintiff was the

owner of the suit premises and is entitled to get the decree for eviction of

the Defendant on the ground enumerated under Section 12(1)(f) of the Act

of 1961 ?"

9. At the outset, it appears that the suit for eviction has been instituted

initially by the Plaintiff and his father Mahadev Prasad Kashyap and on

account of his sad demise, his name was deleted and the Plaintiff was

admittedly one of his heirs, and therefore, it cannot be said that he was not

entitled to sue for eviction on the ground under clause-(f) of sub-Section

(1) of Section 12 of the Act of 1961, as contended by learned Counsel for

the Appellant/Defendant. It is settled principles of law as held in the Full

Bench decision of Madhya Pradesh High Court in the matter of Harbans

Singh vs. Smt Margrat G. Bhingardive reported in 1990 M.P.L.J 112 that

absence of other co-owners will not disentitle the Plaintiff from maintaining

a suit for eviction, particularly, when other co-owners have raised no

objection for it. Para-9 of it is relevant for the purpose at this juncture,

which reads as under:-

"9........In connection with the first part of the question, it may be stated that some of the decisions of the highest Court of Land provide a complete answer to the problem. In Sri Ram Pasricha v. Jagannath, (1974) 4 S.C.C 184 relying on certain precedents and a passage from "Salmond on Jurisprudence" it was observed that under the general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant and, therefore, it is inconceivable to throw out the suit on account of non-pleading of other co- owners as such. Further, it has been held in the said report that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. This position will change only when partition takes place. This view was accepted and again reiterated by Supreme Court in Kanta Goel vs. B. P. Pathak, (1977) 2 S.C.C 814 wherein it was held that a co-owner is as much an owner of the entire property as any sole owner and the absence of other co- owners will not disentitle a co-owner from

maintaining an action for eviction when the other co-owners do not object to the same. This view was followed in a recent decision by the Supreme Court in Pal Singh vs. Shri Sunder Singh, (1989) 1 S.V.L.R. (C) 54 . This being the position of law, it has to be held that the widow/non-applicant, who is a co-

owner/landlady of the premises with some others, can initiate eviction proceedings against the tenant in the absence of other co-owners if they do not object for the same."

10. Besides, it is not in dispute as evidenced by the admission of the

Defendant himself in his cross-examination that a rent agreement was

executed by the Plaintiff in his favour on 06.07.2005 and from a bare

perusal of the averments made in the Plaint filed by the Plaintiff and his

father, it is evident that the Plaintiff was stated to be the owner of the suit

premises with the consent of his father. Since the Defendant has admitted

the execution of the alleged rent agreement, therefore, he cannot deny his

title in view of the provision prescribed under Section 116 of the Indian

Evidence Act and the Plaintiff would, therefore, be deemed to be owner of

the property in question within the meaning of Section 12(1)(f) of the Act of

1961 as held by the Madhya Pradesh High Court in the matter of R.P.

Tiwari vs. Smt Soluchna Choudhary reported in 2000(1) M.P.H.T. 481

wherein, it was held at paragraph-8 as under:-

"8........It is by now well settled that the landlord need not be absolute owner. If he is lessor or landlord and the tenant cannot deny his title in view of Section 116 of the Evidence Act the landlord or the lessor would be deemed to be owner within the meaning of Section 12 (1) (f) of the Act. In Dadanbai Vs. Arjundas, (1995) 3 SCC 412, the Supreme Court considered the meaning of 'owner' in Section 23-A(b) of the Act and held that a lessor whose title cannot be disputed by the lessee undoubtedly is owner at whose instance the proceedings for eviction were maintainable. The words used in Section 23-A (b) of the Act are the same as in Section

12 (1) (f) of the Act. The same view has been taken by the Supreme Court in Anar Devi Vs. Nathuram, (1994) 4 SCC 250 and S.R. Sinha Vs. H. Banerjee, (1991) 4 SCC 572. This Court took the same view in Asif Ali Vs. Rahandomal, AIR 1986 M.P. 143. As the defendant has been held to be tenant of Mukund Das on the basis of the material on record it is not necessary to trace the title of Mukund Das. Once the defendant is held to be tenant of Mukund Das he cannot question his title in view of the rule of estoppel in Section 116 of the Evidence Act. The plaintiff is transferee from Mukund Das on the basis of registered sale-deed. She would be 'owner' of the accommodation within the meaning of Section 12 (1) (f) of the Act."

11. In view of the above principles of law, the Plaintiff would certainly be

entitled to sue for eviction of the Defendant on the ground enumerated

under Section 12(1)(f) of the Act of 1961.

12. In so far as the bona fide need of the Plaintiff is concerned, it

appears that the same has also been duly proved by him. In his (Mishri

Lal Kashyap) evidence at para-5, it is stated by him that the suit premises

is required bona fidely by him for carrying out the business of himself and

also of his children and an alternative and suitable accommodation for the

said purpose is not available with him. It is stated further by him at para-

40 that he has no shop available with him at "Shanichari Bazar" when a

specific question was put to him in this aspect though he is running a retail

vegetable shop there for the last 3-4 years. It appears further from his