Shiv Prasad Tiwari vs Died (Banshi Lal Sablok) Through ...
2021 Latest Caselaw 351 Chatt

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                                                              NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                Judgment reserved on :9.6.2021
               Judgment delivered on:16.6.2021
                Second Appeal No.293 of 2006
Shivprasad Tiwari, S/o Vasudev Prasad Tiwari, Aged about
51 years, R/o Naharpara, Raipur (CG)
                                      ­­­­ Appellant/Plaintiff
                            Versus
Banshilal Sablok (died) through LR's
1­A. Harish Sablok, S/o late Shri Banshilal Sablok, Aged
about 48 years, R/o­P­225/6, Priyadarshni Nagar, Raipur,
District­Raipur (CG)
                                     ­­­­Respondent/Defendant

For Appellant/Plaintiff: Mr.Amrito Das, Advocate For Respondent/LR's of the Defendant:

Mr.N.L.Soni, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal

C.A.V. Judgment

1. Proceedings of this matter have been taken­up through

video conferencing.

2. This second appeal preferred by the

appellant/plaintiff was admitted for hearing on

13.12.2007 by formulating the following substantial

questions of law:­

"A. Whether the finding recorded by both the Courts below that the appellant/plaintiff is not the owner and the respondent/defendant not his tenant is perverse since both the Courts below overlooked the oral evidence of the plaintiff as also the documents Ex.P­1

and P­2 produced by Smt Bhagwati Bai, mother of the appellant/plaintiff ?

B. If yes, whether the judgment and decree passed under Section 12(i)(a) & (c) of the Chhattisgarh Accommodation Control Act, 1961 is liable to be set aside ?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and nomenclature in the suit before the trial Court].

3. It is the case of the plaintiff that the suit

accommodation was owned by his mother Bhagwati Bai,

which she has purchased by Exs.P­1 & P­2 and

constructed a shop therein which she let­out to

original defendant Basnshilal, who died during

pendency of this second appeal, on a monthly rent of

₹500/­ for non­residential purpose and after her death

he became landlord of the suit accommodation. It is

further case of the plaintiff that the defendant is

not paying rent for last 3 years, for which he served

legal notice vide Ex.P­3 on 20.8.1998, which was

replied by the defendant vide Ex.P­6, but neither paid

the rent and denied the plaintiff's title and thereby

he is entitled for decree under Section 12(1)(a) & (c)

of the Chhattisgarh Accommodation Control Act, 1961

(hereinafter called as 'the Act of 1961').

4. Resisting the suit, the defendant filed his written

statement and denied the averments made in the plaint

stating that he is not tenant of the plaintiff, he is

the owner of the suit accommodation and therefore, the

plaintiff is not entitled for decree. He has also

pleaded that on 16th March, 1986 the plaintiff has

also issued notice to the defendant, which he has

replied vide Ex.D­1 on 11.4.86, which shows that the

plaintiff is not landlord of the suit accommodation.

5. The trial Court upon appreciation of oral and

documentary evidence available on record, by its

judgment and decree dated 23.7.2003, dismissed the

suit holding that relationship of landlord and tenant

is not established and grounds under Section 12(1)(a)

& (c) of the Act of 1961 are also not established. On

appeal being preferred by the plaintiff, the first

appellate Court affirmed the judgment and decree of

the trial Court and dismissed the first appeal.

Questioning the judgment and decree of the first

appellate Court, this second appeal under Section 100

of the CPC has been filed by the appellant/plaintiff,

in which two substantial questions of law have been

formulated by this Court, which have been set­out in

opening paragraph of this judgment.

6. Mr.Amrito Das, learned counsel for the

appellant/plaintiff, would submit that both the Courts

below have committed legal error in holding that

relationship of landlord and tenant is not established

between the plaintiff and the defendant, ignoring the

uncontroverted testimony of Shiv Prasad Tiwari (PW­1),

he referred paras­7 and 19 and also referred the

statement of Narayan Prasad Trivedi (PW­2)

specifically paras­5 and 9 and submit that two

witnesses have clearly admitted that the suit

accommodation was let­out by the plaintiff's mother

to the defendant and as such, relationship of landlord

and tenant between the plaintiff and the defendant is

established and findings recorded by two Courts below

are liable to be dismissed. He would further submit

that grounds under Sections 12(1) (a) & (c) of the Act

of 1961 are fully and clearly established, but both

the Courts below have dismissed the suit holding that

grounds are not established, by recording a finding

which is perverse to record.

7. On the other hand, Mr.N.L.Soni, learned counsel for

the respondent/defendant, would support the judgment

and decree of both the Courts below and submit that

both the Courts below have concurrently and rightly

held that relationship of landlord and tenant is not

established and grounds under Section 12(1)(a) and (c)

of the Act of 1961 are also not made out, as such, the

appeal deserves to be dismissed.

8. I have heard learned counsel for the parties and

considered their rival submissions made hereinabove

and also went through the records with utmost

circumscription.

Answer to substantial question of law No.1:­

9. It is the case of the plaintiff that his mother

purchased the suit property vide Exs.P­1 and P­2 and

constructed a shop therein which was let­out to

original defendant­Banshilal Sablok on monthly rent of

₹ 500/­ for non­residential purpose and even after

service of notice (Ex.P­3) the defendant has not

vacated the suit accommodation and replied his notice

denying the landlord­tenant relationship, as such,

relationship of landlord and tenant is established and

he is entitled for decree of eviction on the ground

under Section 12(1)(a) and (c) of the Act of 1961, but

both the Courts below have held that relationship of

landlord and tenant between the plaintiff and the

defendant is not established and dismissed the suit,

which has been called in question in this second

appeal.

10. In order to establish landlord­tenant

relationship, the plaintiff­Shivprasad Tiwari has

examined himself as PW­1 and also examined witness

Shri Narayan Prasad Trivedi as PW­2. It is quite

apparent from record that the suit land on which the

accommodation is situated is purchased by the

plaintiff's mother Bhagwati Bai vide Exs.P­1 and P­2

on 1.8.63 and 5.10.64 respectively. The plaintiff has

been examined as PW­1. He has stated that the suit

accommodation was let out by his elder mother to the

original defendant and fact is known to other witness

Narayan Prasad Trivedi (PW­2), who has been examined

as PW­2. In para­7 of cross­examination on question

being asked by learned counsel for the defendant, the

plaintiff has clearly stated that the suit

accommodation was let­out by his mother Bhagwati Bai.

Similarly, in para­19 on question being put by learned

counsel for the defendant, the plaintiff has clearly

stated that rent was being given by the defendant to

him and in same paragraph, on question being put, this

witness (PW­1) has clearly stated that the defendant

is carrying his business in the suit accommodation,

but in the capacity of his tenant. Similarly Narayan

Prasad Tiwari (PW­2) in whose presence the suit

accommodation has been let­out in para­5 he has

clearly stated about the suit accommodation being let­

out to the defendant in presence of Bhagwati Bai and

and elder son Durga Prasad Tiwari. Similarly, he has

clearly stated in para­6 that the plaintiff's mother

purchased the suit land and thereafter tenancy was

made in favour of the defendant.

11. Apart from the plaintiff witness in cross­

examination, the aforesaid fact has been extracted

from the plaintiff on suggestion from counsel for the

defendant, which is binding to the defendant in which

the plaintiff and his witness (PW­2) have clearly that

that the suit accommodation was let­out by the

plaintiff's mother to the defendant and the defendant

is his tenant and he is not carrying his business on

his own title/right, but he is tenant, as such, from

the statements of plaintiff­Shivprasad Tiwari (PW­1)

and Narayan Prasad Trivedi (PW­2), it is clearly

established that the plaintiff's mother purchased the

suit land and after death of his mother, the plaintiff

has succeeded the suit property, as such, finding

recorded by two Courts below that relationship of

landlord and tenant between the plaintiff and the

defendant is not established is perverse and is hereby

set­aside and it is held that relationship of landlord

and tenant is established between the plaintiff and

original defendant.

Answer to substantial question of law No.2:­

12. The plaintiff has pleaded two grounds under

Section 12(1)(a) and Section 12(1)(c) (c) of the Act

of 1961. It is the case of the plaintiff that while

replying to the notice dated 20.8.1998(Ex.P­3) served

to the defendant, he has denied the title of the

plaintiff, which is a ground under Section 12(1)(c) of

the Act of 1961 and reply to notice has also been

filed as Ex.P­6.

13. Section 12(1)(c) of the Act of 1961 provides as

under:­

"12. Restriction on eviction of tenants.­(1) Notwithstanding 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 :

(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 which is likely to affect adversely and substantially the interest of the landlord therein:

Provided that the use by a tenant of a portion of the accommodation as his office shall not be deemed to be an act inconsistent with the purpose for which he was admitted to the tenancy."

14. A careful perusal of aforesaid document (Ex.P­6)

would show that the defendant has not denied the title

of the plaintiff specifically. Merely claiming that he

is not tenant of the plaintiff would not constitute a

ground under Section 12(1)(c) of the Act of 1961. For

ground under Section 12(1)(c) of the Act of 1961,

title must be specifically denied by the defendant,

which is detrimental to the interest of the plaintiff,

then only ground under Section 12(1)(c) of the Act of

1961 is made out and simple and vague denial of the

plaintiff's title, if any, would not constitute a

ground under Section 12(1)(c) of the Act of 1961,

therefore, the plaintiff is not entitled for decree

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

15. Section 12(1)(a) of the Act of 1961 specifically

contemplates that tenant is duty bound to pay or remit

the arrears of rent within two months from the date of

service of demand of notice by the landlord and if he

fails to tender the same within the statutory period

the landlord get the right to evict the tenant on the

said ground.

16. In the instant case, though legal notice has been

served to the defendant on 20.8.1998 (Ex.P­3) and the

defendant has also filed reply vide Ex.P­6 and the

suit was filed on 22.12.1998, but arrears of rent has

not been paid to the plaintiff on the premises that

there is no relationship of landlord and tenant, as

such, since it has already been held that relationship

between the plaintiff and the defendant as landlord

and tenant is established and despite service of

notice (Ex.P­3) to the defendant he has not tendered

arrears of rent within two months from the date of

notice (Ex.P­1), the plaintiff would be entitled to

decree under Section 12(1)(a) of the Act of 1961. Both

the substantial questions of law are answered in

favour of the plaintiff and against the defendant.

17. The High Court of Madhya Pradesh in the matter of

Satish Chandra v. Jankiprasad1 has considered Section

12(1)(a) of the Act of 1961 and held that it is not

necessary to mention in the demand notice the period

within which arrears to be paid, and even if period

less than two months is mentioned, the demand notice

shall not become invalid.

18. Accordingly, the appeal is partly allowed and the

judgment and decree of both the Courts below are

hereby set aside and it is held that the plaintiff is

entitled for decree of eviction under Section 12(1)(a)

of the Act of 1961 and it is directed that the

defendant will hand over the peaceful vacant

possession of the suit accommodation as shown in

para­1 of the plaint to the plaintiff within 30 days

from the date of drawing the decree. The plaintiff

will be entitled for the cost throughout.

19. A decree be drawn­up accordingly.

Sd/-

(Sanjay K.Agrawal) Judge B/­

1 1992 MPLJ 90