Abhijit Bose (Dead) Through Lrs vs Ajay Jain
2021 Latest Caselaw 1263 Chatt

                              1

                                                           AFR


  HIGH COURT OF CHHATTISGARH, BILASPUR

                   FA No. 34 of 2010

            Order reserved on : 25.02.2021
            Order Delivered on: 20.07.2021


1. Abhijit Bose (Dead) Through Lrs. Nil


  1.1 - (A). Smt. Dolly Bose W/o Late Abhijeet Bose Aged
  About    61   Years   C/o   Calcutta    Photo   Studio   And
  Drycleaners, Bastar Road, Dhamtari, District Dhamtari
  Chhattisgarh.
  1.2 - (B). Indraneel Bose S/o Late Abhijeet Bose Aged
  About    41   Years   C/o   Calcutta    Photo   Studio   And
  Drycleaners, Bastar Road, Dhamtari, District Dhamtari
  Chhattisgarh.
  1.3 - (C). Indrajeet Bose S/o Late Abhijeet Bose Aged
  About    34   Years   C/o   Calcutta    Photo   Studio   And
  Drycleaners, Bastar Road, Dhamtari, District Dhamtari
  Chhattisgarh. (Defendant)

                                              ---- Appellants
                         Versus
1. Ajay Jain S/o Shri Mohan Lal Jain Aged About 39 Years R/o
  Bastar Road Dhamtari, Tahsil And District Dhamtari
  Chhattisgarh.

2. Deepak Kumar Jain S/o Shri Mohan Lal Jain Aged About
  33 Years R/o Bastar Road Dhamtari, Tahsil And District
  Dhamtari Chhattisgarh.

3. Smt. Archana Jain W/o Shri Ajay Jain Aged About 29 Years
  R/o Bastar Road Dhamtari, Tahsil And District Dhamtari
  Chhattisgarh.

4. Smt. Kamna Jain W/o Shri Deepak Jain Aged About 29
                                 2

      Years R/o Bastar Road Dhamtari, Tahsil And District
      Dhamtari Chhattisgarh.

                                             ---- Respondents

For Appellants : Shri Kishore Bhaduri, Advocate For Respondents : Shri Malay Jain, Advocate

Hon'ble Smt. Justice Rajani Dubey

C A V Order

20. 07.2021

01. This appeal has been filed by the appellants/defendants

challenging the judgment and decree dated 25.02.2010

passed by the Additional District Judge (F.T.C.) Dhamtari in

Civil Suit No. 7A/07 whereby the suit was decreed in favour of

respondents/plaintiffs.

02. Before the trial Court, a Civil Suit No. 7A/2007 was filed

by respondents/plaintiffs against the appellant Abhijit Bose

(dead) regarding the arrears of rent for bona-fide need at

plaintiff No. 2 (Deepak Kumar Jain) as Abhijit Bose was tenant

of the disputed house and respondents are owner of the same

house. After filing of written statement, the plaintiff added a

ground under Section 12(1)(c) of Accommodation Control Act

stating that defendant has disowned the title of the plaintiff

and since the title was denied, the defendant is liable to be

evicted on the ground of nuisance and other misconduct.

03. In his written statement, defendant denied all the

allegation levelled by the plaintiff stating that neither the

plaintiffs are owner of the disputed house nor he is the tenant

of plaintiffs. One Naveen Patel filed an Eviction Suit through

his agent Deepak Jain, plaintiff No.2, in Civil Suit No. 1A/2003

and the same was dismissed by the learned Trial Court on

21.02.2004. After dismissal of the Eviction Suit, he filed an

appeal against that order in Civil Suit No. 53A/2004 but that

appeal was also dismissed on 30.12.2004. The defendant has

regularly paid his rent. The plaintiff had not purchased the suit

shop which was tenanted to the defendant but actually some

immovable property, which was residential house situated

about 22-23 meters inside the highway, was purchased by the

plaintiff. Thus, the property purchased by the plaintiffs does

not involve the suit shop and the plaintiffs did not become the

owner of the suit premises. The suit premises is not required

to start business and need projected was sham and bogus and

the bona-fide need, therefore, did not exist to get the decree

under Section 12(1) of the Accommodation Control Act. It was

further pleaded that when Bakkur Bhai, the landlord, was

alive, the rent was received by him and, after his death, the

rent was being collected by one Naveen Patel though it was

not known whether the suit premises was owned by any of the

heirs or not.

04. After hearing both the parties, considering the oral and

documentary evidence, the learned trial Court by impugned

judgment decreed the suit of plaintiffs and ordered the

appellant/defendant to vacate the suit shop within two months

and hand over the possession to the plaintiffs. Hence, this

appeal filed by the appellants/defendants. During the

pendency of this appeal, the appellant died and his legal

representatives has been taken on record.

05. Learned counsel for the appellants submits that the

learned trial Court below failed to consider the fact that in

order to get decree under Section 12(1)(f), the landlord was

required to prove the fact that he is the owner of the

premises. He next submitted that learned trial Court failed to

see the effect of the sale deed by which the ownership was

claimed in respect of suit shop. The sale deed reflected that

the plaintiff had purchased the residential plot situated 22-23

meters inside the national highway, whereas the suit premises

was abutting the highway, therefore, inference of ownership

should have been drawn to negate the claim under Section

12(1)(f) of the Accommodation Control Act. He further added

that the plaintiff has failed to prove its case under Section

12(1)(f). The plaintiff was required to plead and prove that he

had no suitable accommodation available with him and,

therefore, decree could not be passed under such grounds.

The learned trial Court did not appreciate oral and

documentary evidence according to law, therefore, the

judgment and decrees are liable to be set aside.

06. In support of his argument, learned counsel for the

appellants placed reliance on the decision of Hon'ble Supreme

Court in the matter of 'Dunlop India Limited versus A.A. Rahna

& Ors.' reported in 2011 (5) SCC 778, 'Saroja versus

Chinnusamy(dead) by LRs. & Another' reported in 2007 (8)

SCC 329 & 'Hafizulla versus Puran Chand Jain' reported in

2017 SCC Online MP 95.

07. On the contrary, learned counsel for the respondent

supported the impugned judgment and decree passed by the

trial Court and placed reliance on the decision of Hon'ble

Supreme Court in the matters of 'Hukum Chandra versus

Nemi Chand Jain' reported in (2009) 13 SCC 363 , 'Anil

Bajaj & Another Versus Vinod Ahuja' Reported in (2014) 15

SCC 610, 'Balwant Singh alias Bant Sing & Another versus

Sudarshan Kumar & Anotehr' reported in 2021 SCC Online

SC 114 & This Court in 'Utsav Dey Versus Sushil Kumar

Bhadraja' passed in WP227 No. 02/2018.

08. Heard learned counsel for both the parties and perused

the material available on record including record of learned

trial Court.

09. The main objection of the appellants is that respondents

are not owner of the suit property. Suit property is not

mentioned in Ex-P/1 i.e. sale deed dated 08.07.2004. With the

sale-deed particulars of properties is described as under:-

"fooj.k lai fRr

ifjofrZr Hkwfe ij cuk nks eaftyk vkoklh; edku fLFkr eksVj LVSaM okMZ ¼okMZ dzekad 12½

i-g- ua- 16 cankscLr ua- [email protected] jk- fu- e- /kerjh rglhy ,oa ftyk /kerjh ds varxZr fLFkr

gSA ftldk fd ekufp= bl foys[k ds lkFk layXu gksdj bl foys[k dk vko';d vax gSA mDr

laifRr dk fooj.k uhps n'kkZ, vuqlkj gSA

'khV ua- [kljk ua- IYkkV ua- jdck ifj- yxku gd 7 479 33 dk Vq- 2500 o- QqV 32¾00 #i;k ifjofrZr [email protected] [email protected] [email protected]

fufeZ r {ksr z Q y dk fooj.k

Hkwry ij fufeZr {ksrzQy 1534 oxZ [email protected] oxZ ehVj izFke eafty ij fufeZr {ksrzQy 800 oxZ [email protected] oxZ ehVj f}rh; eafty ij fufeZr {ksrzQy 800 oxZ [email protected] oxZ ehVj

Furthermore, Ex-P/2, sale deed dated 08.07.2004 is described

as under :-

."fooj.k lai fRr

ifjofrZr Hkwfe ij cuk nks eaftyk vkoklh; ekdku fLFkr eksVj LVSaM okMZ ¼okMZ dzekad

12½ i-g- ua- 16 cankscLr ua- [email protected] jk- fu- e- /kerjh rglhy ,oa ftyk /kerjh ds varxZr

fLFkr gSA ftldk fd ekufp= bl foys[k ds lkFk layXu gksdj bl foys[k dk vko';d vax gSA

mDr laifRr dk fooj.k uhps n'kkZ, vuqlkj gSA

'khV ua- [kljk ua- IYkkV ua- jdck ifj- yxku gd 7 479 33 dk Vq- 500 oxZ QqV 6¾00 #i;k ifjofrZr ¼46-46 oxZ ehVj½ [email protected] [email protected] [email protected]

fufeZ r {ksr z Q y dk fooj.k

Hkwry ij fufeZr {ksrzQy 320 oxZ [email protected] oxZ ehVj izFke eafty ij fufeZr {ksrzQy 320 oxZ [email protected] oxZ ehVj f}rh; eafty ij fufeZr {ksrzQy 320 oxZ [email protected] oxZ ehVj [kqyk {ksrzQy 180 oxZ [email protected] oxZ ehVj

10. Learned counsel for the appellants submits that in both

the sale-deeds only residential house was shown to be

purchased. Learned trial Court, in para 10 to 35, discussed the

issue in its judgment and recorded its fining that plaintiff has

ownership of the suit property and defendant is tenant in this

shop. That apart, the defendant has also admitted in his

deposition that he is tenant of the said suit shop. In his cross-

examination defendant/appellant stated in para 20, which

reads thus :-

ÞeSa okn nqdku 150 #i;s ekfld fdjk;s ij ih-Mh- daiuh ls lu 1969 esa fy;k FkkA

eSaus izfrekg 150 #i;s ds nj ls okn edku dk fdjk;k ih-Mh- daiuh dks 4&5 lky

rd fn;k FkkA okn nqdku dk ekSf[kd fdjk;k r; gqvk Fkk dksbZ fy[kki<h ugha gqbZ

FkhA okn nqdku dk fdjk;k eS] ;k eksaVw ds }kjk dHkh cdksj HkkbZ dks dHkh daiuh esa

tkdj vnk djrs Fks ftldk j'khn ih-Mh- daiuh ds }kjk fn;k tkrk FkkAß

Thus, it is clear from the statement of the appellant that

he is the tenant of the suit premises. The appellant has denied

the ownership of respondents in the same premises but it is

clear from Ex. P/1 & Ex. P/2, sale-deeds of the property, that

respondent had purchased property from previous owner and

now they are the owner of suit premises. The same was also

observed by the learned trial Court and this finding of the trial

Court, in the opinion of this Court is based on proper

appreciation of oral and documentary evidence led before it.

12. Another objection of appellant is that under Section 12

(1)(f) of the Accommodation Control Act, the plaintiff was

required to plead and prove that he has no suitable

accommodation available with him and previous suit owner

did not prove his bona fide need. Hence, by applying the

principle of res judicata this suit is not maintainable.

13. In Civil Suit No. 1A/2003, Naveen Patel and Deepak Jain

were plaintiffs. In para 6 of the suit It was pleaded by Deepak

Jain that he was appointed as agent by plaintiff No.1 Naveen

Patel. Thus, it is clear from the pleadings that he (Deepak Jain)

had filed earlier suit as an agent, but in this suit, Deepak Jain

is a plaintiff and he has filed this suit on various grounds.

14. This High Court in the case of Utsav Dey & Another

Vs. Sushil Kumar Bhadraja & Another passed in WP227

No. 02/2018 vide order dated 09.08.2018 held in Paras 18 &

20 as under :-

" 18. The second part of the order wherein some trapping of res judicata can be inferred also appears to be completely misconceived. The perusal of the order of the Additional District Judge in Civil Appeal No. 66A/2011, which was decided on 17th of February, 2014 would show that earlier the suit for ejectment was filed by Smt. Pushpa Dey, since deceased. The suit for eviction was dismissed. Against dismissal of eviction proceeding by 7 th Civil Judge, Class-II, Bilaspur in Civil Suit No. 07A/2009. Thereafter, an appeal was preferred and the appeal too was dismissed. The facts as would show that the earlier petition for eviction was filed by the mother of the petitioners on different grounds. In that suit eviction was sought claiming bonafide need for the daughter-in-law of the then plaintiff Smt. Pushpa Dey. The Court rejected the contention on the ground that the eviction could not have been sought for the benefit of daughter-in-law as she is not covered within the definition of "dependent" under the earlier Act. Most importantly in such case during appeal and application was filed by the plaintiff under Order 6 Rule 17 CPC along with an application under

Order 41 Rule 27 and amendment was sought to bring in fact along with document that son of the plaintiff Pushpa Dey has been granted some agency, therefore, for his need also the premise is required, however, the Court of Additional District Judge dismissed such contention on the ground that allowing such application would change the nature of the suit.

20. In facts of the case therefore, the principles of res judicata is completely foreign. The res judicata only operates in respect of the issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title and has been decided. In the instant case on the earlier occasion, the ejectment case was dismissed for the reason that the daughter-in-law cannot be said to be a dependent, but in the subsequent proceeding before the Rent Controller, the facts were otherwise and the parties were also different and it was under the new statute, therefore, the finding of res judicata by the rent controlling authority is completely perverse and wrong appreciation of the facts."

15. Plaintiff Deepak Jain (PW-4) has affirmed in para 5 of his

affidavit, which reads thus :-

Þoknh dzekad 2 nhid dqekj dks O;olk; djus gsrq /kerjh uxj esa

vU; dksbZ nqdku ;qfDr;qDr iwoZd mi;ZqDr Reasonably Suitable ugha

gSA eq>s nhid dqekj oknh dks bl nqdku esa fCkfYMax eVsfj;y tSls VkbZYl]

lsuhVjh lkeku ,oa mlls tqMs vU; lkeuksa dk O;olk; djus gsrq lnHkkouk

iwoZd bl nqdku dh vko';drk gSA vU; edku ekfydksa dh blesa iw.kZ lgefRk

gSA ;g nqdku uxj ds eq[; ekxZ ,u- ,p- 43 CkLrj jksM ij gSA ß

It is clear from the affidavit given by the Deepak Jain

(PW-4) that appellant Abhijit Bose is the tenant of the suit

shop and the respondents are the owner of the said shop.

16. While dealing with the identical issue, the Hon'ble

Supreme Court in the matter of Balwant Singh Alias Bant

Singh & Another Versus Sudarshan Kumar & Another

passed in 2021 SCC Online SC 114 held in para 11 as

under :-

"11.. On the above aspect, it is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate. Insofar as the earlier eviction proceeding, the concerned vacant shops under possession of the landlords were duly disclosed, but the case of the landlord is that the premises/space under their possession is insufficient for the proposed furniture business. On the age aspect, it is seen that the respondents are also senior citizens but that has not affected their desire to continue their business in the tenanted premises. Therefore, age cannot be factored against the landlords in their proposed business."

17. Further, the Hon'ble Supreme Court in the matter of

Hukum Chandra (dead) through Legal Representatives

Vs. Nemi Chand Jain & Others passed in (2019) 13 SCC

363 held in para 18 & 19 as under"

"18. In the light of the above principles and considering the case in hand, the fact remains that the present case is of a landlord-tenant dispute. As discussed infra, the shop vacated by other tenant Babulal is for the bona fide requirement of respondent landlord's another son Rajesh Kumar Jain. In that view of the matter, the court wold not be justified in taking notice of such a subsequent fact sought to be projected by the appellant

to oppose the relief granted by the courts below. In the facts and circumstances of the present case, the subsequent event relied upon by the appellant tenant cannot be taken cognizance.

19. Admittedly, respondent landlord obtained vacant possession of the adjacent shop from the other tenant Babulal on 14.11.2006 in pursuance of an order dated 01.09.2005 passed by the High Court in 'Babulal V. Nemichand Jain7'. But the learned Senior Counsel appearing for the respondent landlord submitted that the decree for eviction of the said tenant Babulal was on the ground of bona fide requirement of Rajesh Kumar Jain (other son of respondent landlord) as envisaged under Section 12(1)(f) of the Act. It was submitted that respondent landlord's another son Rajesh Kumar Jain has occupied the said adjacent shop and doing the business of "Sara". Respondent landlord has four sons and the other shop vacated by tenant Babulal is meant for the bona fide requirement of another son Rajesh Kumar Jain. If that shop is not actually occupied by the other son Rajesh Kumar Jain, the other tenant Babulal has a right to initiate the proceedings against the landlord for his re-entry in the said adjacent shop in terms of the provisions contained in Section 17 of the Act. Therefore, it cannot be said that alternative accommodation was available for the respondent landlord's son Rajendra Kumar due to vacation of the said adjacent shop by another tenant Babulal."

18. The Hon'ble Supreme Court in the matter of Anil

Bajaj & Another Vs. Vinod Ahuja passed in (2014) 15

SCC 610 held in para 6 as under:-

"6.. In the present case it is clear that while the landlord (Appellant 1) is carrying on his business from a shop premise located in a narrow lane, the tenant is in 7 Second Appeal No. 472 of 2002, decided on 1-9-2005 (MP)

occupation of the premises located on the main road which the landlord considers to be more suitable for his own business. The materials on record, in fact, disclose that the landlord had offered to the tenant the premises located in the narrow lane in exchange for the tenanted premises which offer was declined by the tenant. It is not the tenant's case that the landlord, Appellant 1, does not propose to utilize the tenanted premises from which eviction is sought for the purposes of his business. It is also not the tenant's case that the landlord proposes to rent out/keep vacant the tenanted premises after obtaining possession thereof or to use the same in any way inconsistent with the need of the landlord. What the tenant contends is that the landlord has several other shop houses from which he is carrying on different businesses and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business."

19. Considering the facts and situation of the case and

evidence on record, the learned trial Court decided all issues

in favour of the respondents/plaintiffs. In the light of Utsav

(Supra), judgment of this Court and law laid down by Hon'ble

Supreme Court in Balwant Singh (Supra) and Hukum

Chandra (Supra), this Court does not find any good ground

warranting interference with the impugned Judgment and

decree. The finding so recorded by the trial Court is neither

perverse nor illegal. The appeal without any substance is

liable to be and is hereby dismissed.

Sd/-

(Rajani Dubey) JUDGE

V/-