Achhelal Jaiswal And Anr vs Smt. Rani Bai Dixit And Ors
2022 Latest Caselaw 752 Chatt

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                                                                         AFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                                                 Reserved on 01-12-2021
                                              Pronounced on 14-02-2022
                            FA No. 38 of 2012
   1. Achhelal Jaiswal S/o Shri Ramadhan Jaiswal, R/o Infront of Mahavir
      Gaushala, K.K. Road, Maudhapara, Raipur, C.G.
   2. Rampalat Jaiswal, S/o Shri Suryalal Jaiswal, R/o B-8 And 9, Sector-1,
      Devendra Nagar, Raipur Tah And Dist. Raipur C.G.
                                                               ---- Appellants
                                  Versus
   1. Smt. Ranibai Dixit W/o Late Hariprasad Dixit, R/o - Dixit Book Depot,
      K.K. Road, Raipur, Tehsil and District - Raipur (C.G.)
   2. Smt. Nalini Trivedi, W/o Shri Rajendra Trivedi, R/o Flat Nos. 4, 54
      Kishnu Apartment, Trimuirti Nagar, Nagarpur (Maharashtra)
   3. Kumari Vijya Dixit, D/o - Late Hariprasad Dixit, R/o Dixit Book Depot,
      K.K. Road, Dist. Raipur (C.G.)
   4. Smt. Kshama Bajpayee, W/o Shri Alok Bajpayee, R/o Yadav House,
      Napier Town, Jabalpur (M.P.)
   5. Kumari Uma Dixit, D/o Late Shri Hari Prasad Dixit, R/o Dixit Book
      Depot, K.K. Road, Raipur (C.G.)
                                                             ---- Respondents

For Appellants : Shri B.P. Sharma with Shri Himanshu Pandey, Ms. Anmol Sharma and Ms. Anuja Sharma, Advocates For Respondents : Shri Ravindra Agrawal, Advocate

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT

1) This is defendants first appeal arising out of judgment and decree passed by the learned Fourth Additional District Judge, Raipur (C.G.) passed in Civil Suit No. 39-A/11 filed by the plaintiffs has been decreed and it has been directed to the defendants to vacate the suit land and handover the vacant possession immediately. The trial Court has further directed for payment of Rs. 35,000/- towards rent and Rs. 5000/- per month as penalty till vacating the suit land. The amount which has been deposited by the defendant No. 1 before the trial Court shall be adjusted at the time of final judgment and decree granted by it.

2) For convenience plaintiffs and defendants are termed as it exists before

the trial Court.

3) The plaintiffs have filed civil suit contending that plaintiffs are joint owner of area 0.23 Ha out of the suit land bearing Patwari Halka No. 106 Revenue Circle, Raipur Tahsil and District Raipur Khasra No. 229/1 admeasuring 1.291 Ha. and Khasra No. 472 admeasuring 0.182 Ha. Total 1.473 Ha. Defendant No. 1 has taken one part of area measuring 12809 Sq.ft. which is mentioned in map attached with the plaint, which is subsequently being addressed as rented land. Defendant No. 1 used said land for storing his materials as such he has taken the jointly owned property of the plaintiffs on rent. The rented land is having monthly tenancy which is payable from first day of the english month to the last day of that month. At present rent of the rented land is Rs. 5000/- per month. The defendant No. 1 has paid rent up to year 2004 to the power of attorney holder Umesh Kumar Dixit and later has not paid the rent. As such rent from January, 2005 is payalable to the plaintiffs. The plaintiffs therefore sent notice through their advocate to defendant No. 1 through registered post acknowledge due on 02.05.2005 demanding rent from January, 2005 to April, 2005 to the tune of Rs. 20,000/-. Though the notice has been received by the defendant but he has not paid the rent. The plaintiff No. 1 has submitted that on the rented land they want to construct house and also preparing map for construction of the house and sufficient fund also available with them.

4) It has been further contended that since plaintiffs are ladies and they visit public places rarely therefore they have appointed Uma Shankar Dixit as power of attorney holder to look after the properties owned by them. As such the plaintiffs are not in touch with the defendants. The defendants used to pay rent to the power of attorney holder only. To construct the house they need the land therefore they demanded the land through their power of attorney holder to the vacate the land. Therefore, the defendant No. 1 has lodged false report before the police Station Moudhapara against the power of attorney holder as to create pressure tactics. It is further contended that defendant No. 1 without permission from the plaintiffs have given the portion of the rented land to defendant No. 2 on tenancy namely Rampalat Jaiswal as sub-tenant at the rate of Rs. 2000/- p.m. Defendant No. 2 further sublet the land to M/s Power Traders for keeping their materials which is illegal and against

rent agreement executed between the plaintiffs and defendant No. 1. The plaintiffs through their advocate sent notice on 02.05.2005 and terminated the tenancy of defendant No. 1 with effect from 31.07.2005 and demanded vacant possession of the suit land. Even after receipt of the notice defendant No. 1 has not given any reply to the notice. It is further contended that the defendants have sent reply to the notice on 20.07.2005 through their advocate wherein he has denied the owner ship of the plaintiff and tenancy and claimed that the defendants are in possession of the suit land since 1977 without any hindrance from anybody for more than 28 years as owner of the land therefore, there is no necessity for the plaintiffs to file the civil suit.

5) The plaintiffs filed civil suit through their attorney holder mainly contending that the defendants are liable to be evicted from the suit land as per the provisions of Section 12(1)(a),(b),(c) and (n) of the C.G. Accommodation Control Act (hereinafter 'the Act') and also entitled to recovery of balance rent amount up to 31.07.2005 to tune of Rs. 35,000/- and also they are entitled to get penalty of Rs. 5000/- per month from the said date till the actual vacant possession of the land in favour of the plaintiffs. The Suit was registered as Civil Suit No. 39-A/11.

6) The defendants have filed their return to the civil suit denying the allegations made in the plaint mainly contending that Umesh Kumar Dixit is not the power of attorney holder and he has no authority to file civil suit and on this count alone the suit is liable to be dismissed. It is also denied that the plaintiffs are the joint owner of the property described in the plaint. The revenue records produced by the plaintiffs shows name of 12 persons and that the plaintiffs were not the owner of the rented land. The suit land is liable to the dismissed for non-joinder of the necessary party as the suit has not been filed by all the owners of the rented land. It has also been denied that there is land lord and tenant relationship between the plaintiffs and defendant No. 1. In fact the defendant No. 1 is in possession of the rented land for the last 28 years without any hindrance from anybody. Defendant No. 1 has also completed construction work and boundary has already been constructed wherein he is doing his business. It has also been denied that rent of the land is Rs. 5000/- per month and any rent is being paid to Umesh Kumar Dixit. It is also denied that tenancy has been terminated

vide notice dated 02.05.2005 with effect from 31.07.2005. The defendants have already clarified the factual matrix of the plaint through their reply as such since the plaintiffs are not the owners of the suit land, they have not right to file the suit and the same is liable to be dismissed. It has also been contended that no ground for eviction as provided under Section 12(1) (a), (b), (c) and (n) of the Act is made out. It has also been contended that the valuation of the suit has not been properly done. As per the market value the value of the suit is around Rupees one crore and twenty lakhs and ad-veloram Court fee should have been annexed accordingly. In absence of appropriate Court fee the suit is liable to be dismissed.

7) The trial Court framed as many as 12 issues. The plaintiffs examined their witnesses namely Uma Dixit (PW/1), Umesh Dixit (PW/2), Manjeet Singh (PW/3), R.K. Siwane (PW/4) and Ramakant Sahu (PW/5) and exhibited documents from P/1 to P/20. Ex.P/1 Proposed Plan, Ex.P/2 Rin Pustika, Ex.P/3 Partition Deed dated 23.01.1992, Ex.P/4 Agreement dated 18.08.1982, Ex.P/5 Agreement dated 08.11.1995, Ex.P/6 Notice dated 05.08.1993, Ex.P/7 carbon copy of notice dated 02.05.2005, Ex.P/8 and P/9 Postal Receipts, Ex.P/10 Acknowledgement, Ex.P/11 Reply of the notice dated 29.07.2005, Ex.P/12 Power of Attorney, Ex.P/13 Map, Ex.P/14 true copy of Panchsala for the year 2008-09, Ex.P/15 true copy of B-1, Ex.P/16 copy of permanent licence, Ex.P/17 rent receipts, Ex. P/18 certificate dated 18.09.2002, Ex.P/19 application and Ex. P/20 covering letter.

8) The plaintiffs in examination in chief have clearly stated that on the rented land owned by them they want to construct the house and for that plan and estimate have already been prepared which has been filed with the plaint and they have sufficient fund for construction. It has also been stated by the plaintiffs in examination in chief that defendant No. 1 has given some portion of the land to defendant No. 2 as sub tenant on the rent of Rs. 2000/- pm. The plaintiff witness has also stated about the factum of issuance of notice on 02.05.2005 by which they have demanded vacant possession of the rented land and has admitted that the defendant No. 1 has given their reply to the said notice wherein he has shown that he has denied the title and tenancy between them and stated that he is in possession of the suit land for 28 years without

hindrance from anybody.

9) Plaintiff witness PW/1 Uma Dixit was extensively cross examined by the defendants. In para 57 she has admitted that the agreement between her father and defendant No. 1 was executed in 1982 and stated that defendant No. 1 used to pay rent to Lala Prasad Dixit subsequently he was giving rent to Umesh Kumar Dixit. It is stated by the witness that defendant No. 2 has taken possession of 800 Sq.ft. of land. The witness PW/2 Umesh Kumar Dixit is power of attorney holder. He was examined before the trial Court wherein he has narrated the factual matrix which has already been stated in the plaint. In the cross-examination he has admitted that whatsoever area mentioned in Ex.P/14 and 15 is owned by them. The witness has also stated that in Ex.P/14 and 15 is in the name of the plaintiff's husband has been recorded and also the name of brothers and of Hariprasad Dixit and also children of other brothers have been recorded and names of the plaintiffs have not been incorporated in the revenue records. Other witness Manjeet Singh, PW/3 has stated before the trial Court that defendant No. 1 has taken the land after agreement executed between defendant No. 1 and Rani Bai Dixit wherein he has put his signature. He has clearly stated that defendant No. 1 is tenant of Rani Bai Dixit. This witness in cross examination has stated that this plot has been given to Rani Dixit and her daughter and Umesh Dixit is the power of attorney holder. PW/4 R.K. Siwane has admitted that name of the owners have not been recorded in Ex.P/16 and P/19 which are documents related to registration certificates wherein name of M/s Pawan Traders have been recorded. The certificate issued under the Commercial Tax Act name of the owner has not been mentioned in the documents. PW/5 has clearly stated that defendant No. 2 is running his business in the rented house of defendant No. 1. He is working with the permission of the defendant No. 1 and he is taking rent from him. This witness further stated that Rani Bai wants to construct house on this premises. It has also been admitted by the witness that defendant No. 2 used to give rent to defendant No. 1 and both are close relatives.

10) The defendants examined Achhelal Jaiswal as DW/1, exhibited document documents notice dated 20.07.2005 as Ex.D/1 postal receipt as Ex.D/2, Acknowledgment Ex.D/3, Documents relate to telephone

connection Ex.D/4, Telephone Bill Ex.D/5. Defendant No. 1 was examined before the trial Court wherein he has reiterated the pleadings made in the written statement and he was cross examined by the plaintiff's counsel wherein he has admitted that he is not aware about the description of the land and he has no documentary evidence with regard to the ownership of the land but the witness has stated that no one raised objection about the ownership and nor any one has demanded the rent. The witness has denied the signature on the Ex.P/ 4, P/5 and P/6, letter dated 26.02.1998, Vakalatnama Ex.P/17. He has admitted that defendant No. 2 is his aunt's son. He has started separate business, he is in possession of the land where he is working.

11) Learned trial Court vide its judgment and decree dated 23.02.2012 after appreciating the evidence and the materials on record while deciding the issue No. 1 whether the defendant No. 1 is tenant of suit land area measuring 12809 Sq.ft at the rate Rs. 5000/- has answered the issue in affirmative against the defendant. The learned trial Court has while considering the evidence and materials on record has relied upon the tenancy agreement Ex.P/4 executed between Hariprasad and defendant No. 1 as well as agreement executed the power of attorney holder Umesh Dixit and defendant No. 1 with regard to tenancy has given finding that defendant No. 1 was giving rent to the power of attorney holder Umesh Dixit and also recorded that he was tenant on the suit land which starts from first day of english month to last day of the month at the rate Rs. 5000/- pm.

12)Issue number 2 has been decided against defendant that he has not paid rent from January, 2005. So far as issue No. 3 whether the defendant No.1 is in possession of the suit land as owner has been answered in negative as this witness has been cross-examined and has stated that he was paying rent through Umesh Dixit. The Court has drawn inference that since no receipt was produced, therefore, it cannot be said that he was not paying the rent.

13)The trial Court decided Issue No. 4 in favour of the plaintiffs that without their permission defendant No. 1 has given land on subtenancy which is not permissible under the Act. The trial Court has clearly examined and considered the evidence and fact that for the construction of house the plaintiffs have sufficient fund and the plan has also been prepared

relying upon the statement of the plaintiffs' witness who admits that the plaintiffs intend to construct house on the suit land. There is no reason to disbelieve the evidence of plaintiff. The trial Court while deciding the issue categorically held that plaintiffs have made case for eviction of defendants as per Section 12(1)(a), (b), (c) and (n) of the Act as he has sublet the rented land to other person with the leave of the land owner. Therefore, the trial Court decided the issue in favour of the plaintiffs against the defendants. Against that judgment and decree, the defendants preferred first appeal before this Court.

14)This Court while admitting the appeal has stayed the possession part of the decree till the next date of hearing subject to compliance of Section 13(1) of the Act.

15)Learned counsel for the appellants vehemently criticized the judgment and decree passed by the learned trial Court contending that the plaintiffs have failed to prove that they are the owner of the suit land, therefore, the decree under Section 12(1) of the Act is not sustainable. It has also been contended that decree under Section 12(1)(c) of the Act is not permissible in view of the fact that there was dispute with regard to identity of the land and ownership of the plaintiffs when the different of land alloted in the partition deed have not been shown in common hotch potch as per the law. It has been further contended that no ground for eviction under Section 12(1)(a) of the Act is made out, therefore, the judgment and decree is liable to be set aside by this Court.

16)Learned counsel for the respondents would submit that the objection raised by the appellants that some of the owners of the land has not filed the suit is not maintainable and is contrary to the well settled legal position as other owners have not raised objection with regard to filing of the suit for ejectment of defendant tenants, therefore, the suit is very much maintainable. The learned trial Court has rightly passed the impugned order in favour of the respondents. He relied upon the judgment passed by the Hon'ble Supreme Court in case of K. Lubna and others vs. Beevi and Others 1 and also judgment of the Hon'ble Supreme Court in case of Kasthuri Radhakrishnan and others vs. M. Chinniyan and Another 2. He would further submit that the appellants

(2020) 2 SCC 524

(2016) 3 SCC 296

have been stopped from denying the title of the respondents as per Section 116 of the Evidence Act in absence of clear admission in the earlier proceedings and he would submit that the appellants have specifically admitted the landlord tenancy relationship in the earlier proceeding, therefore they are stopped from raising such plea. He would rely upon the judgment and decree passed by Hon'ble Supreme Court in case of Rita Lal vs. Raj Kumar Singh 3 and would pray for dismissal of the appeal.

17)Learned counsel for the appellants would submit that since the defendants have challenged the title of the plaintiff as land lord then it is incumbent on part of the respondents to prove title with regard to subject matter of the suit property and would refer the judgment passed by the Hon'ble Supreme Court in case of Vinay Eknath Lad vs. Chiu Mao Chen 4 and would further submit that respondents should give correct, specific and exact description of the immovable property. In the present suit no specific description of the immovable property has been given therefore, the suit was not maintainable as such this Court may allow the appeal, dismiss the civil suit filed by the plaintiff. To buttress this submission he would rely upon the judgment passed by the Hon'ble Supreme Court in case of Pratibha Singh and Anr. vs Shanti Devi Prasad and Anr. 5

18)I have heard learned counsel for the parties and record of the Court below with utmost satisfaction.

19)Before adverting to the legal submission made by the appellants and respondents it would be expedient for this Court to extract relevant provisions which are applicable for deciding the present controversy raised in the appeal.

The Act defines 'landlord' as under :-

"Landlord" - A person, who for the time being, is receiving, or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of, any other person or who would so receive the rent or be entitled to receive the rent, if the accommodation were let to a tenant and includes every person not being a tenant who from time to time derives title under a landlord.

20)Section 12 (1) (a), (b), (c) and (n) of the Act provides as under :-

(2002) 7 SCC 614

(2019) 20 SCC 182

(2002) Supp(4) SCR 406

"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 :-

(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner ;

(b)that the tenant has, whether before or after the commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise;

(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;

(n) in the case of accommodation which is open land, that the landlord requires it for constructing a house on it;"

21)Learned counsel for the appellants would submit that there is no ground made out under Section 12(1)(a) of the Act as the defendants are not the tenants of the plaintiffs. The plaintiffs' witness Umesh Dixit has clearly deposed that the defendant No. 1 has not given the rent after December, 2004. This statement was remained unrebutted in the cross examination. Even the appellant No. 1 has admitted in other proceedings in Civil Suit No. 1A/95 in his evidence which was exhibited as Ex.P/18 before the trial Court wherein he has admitted that he is paying rent to Umesh Dixit who is power of attorney holder of the appellants. The learned trial Court appreciating this evidence has recorded specific finding that the defendant No. 1 has not paid rent after December, 2004 as such the case for eviction under Section 12(1)(a) of the Act is made out. Thus, this finding is neither perverse not contrary to the record, therefore, this Court finds that plaintiffs have made out a case for eviction of the defendants as per Section 12(1)(a) of the Act.

22)Learned counsel for the appellants would submit that since some of the owners of the property have not filed the suit for eviction of the tenant therefore, the suit should have been dismissed by the trial Court.

23)The respondents have taken other grounds for eviction as appellant No.

1 has given sub-tenancy to appellant No. 2 which is violation of Section 12(1)(b) of the Act. The witnesses examined by the respondents have clearly adduced evidence to this effect that appellant No. 1 has given one portion of the land to appellant No. 2 on rent at the rate of Rs. 2000/- per month. This evidence was remain unshaken, as such, appellant No. 1 has violated the condition under Section 12(1)(b) of the Act. Thus, the respondents have made case for eviction of the suit land under the Act. Learned trial Court after appreciating the evidence and materials on record has recorded the finding that the appellants after issuance of notice by the landlord for eviction have not vacated the rented land, thus acted against the interest of the respondent-owners of the land. Thus, violated Section 12(1)(b) of the Act.

24)The Hon'ble Supreme Court in case of K. Lubna (supra) has held as under :-

"15. The aforesaid judgment, in our view, covers the legal principle on all fours. A bare reading of sub-para (i) of sub-section (4) of Section 11 of the said Act leaves no manner of doubt that the cause arises upon the tenant transferring his rights under a lease and sub-lets the entire building "or any portion thereof", if the lease does not confer on him any right to do so. The proviso requires that the landlord should have sent a registered notice to the tenant intimating the contravention of the said condition of the lease and upon the tenant failing to terminate the transfer or the sub-lease, as the case may be, within thirty (30) days of the receipt of the notice, an application for eviction could be made by the landlord. Thus, sub-letting of any part of the tenanted premises gives right to eviction from the whole premises. That is how the statute reads and that is also, in our opinion, a reasonable interpretation of the same, as, if one tenancy is created it would not be appropriate to pass eviction order only in respect of a part thereof, and not the whole. The provision reading clearly, and in view of the aforesaid judicial pronouncements, there is no doubt about this proposition. This is not a case of bona fide requirement. The findings of fact in this case are not required to be closely scrutinised as the essential facts, which have been analysed by the courts below, clearly show the existence of a single tenancy. Issuance of a single notice and the filing of a single eviction petition, albeit raising different grounds for different portions of the premises, is an undisputed fact. Thus, the appellant is not expected to allege sub-letting of the whole premises if the sub-letting is only in part of the premises. No doubt the appellants have not specifically claimed that by sub-letting a portion, the whole premises is liable to be vacated, but then that is the legal consequence as is emerging from the legal position."

25)This submission of the learned counsel for the appellants is vehemently objected by the learned counsel for the respondents. He would submit

that there is tenancy agreement Ex.P/4 dated 18.08.1982 between Shri Hariprasad Dixit and appellant No. 1 for the open land situated at Krishna Kumar Road, Mohdapara, in north tenant Jikarbhai, in south tenant Abdul Salim, kitchen garden in east and in west tenants Jagjivanbhai and Sattarbhai for period 1st February, 1982 to 31st December, 1982. Another agreement Ex.P/5 dated 08.11.1995 was executed between appellant No.1 and Umesh Kumar Dixit, power of attorney holder on behalf of Rani Bai Dixit, Nalini, Ku. Vijya, Ku. Kshama Dixit and Ku. Uma Dixit all legal heirs of Late Hariprasad Dixit for one year from 08.11.1995 to 07.10.1996. Since, agreement have been executed between appellant No. 1 and power of attorney holder, therefore, the appellants cannot raise objection with regard to tenancy between the appellants and respondents.

26)Even otherwise it has been well settled legal position that one of the co-

owners can alone and on its own rights file suit for ejectment of the tenant and it is no defence open to the tenants to question maintainability of the eviction suit on the ground that other co-owners were not shown as party. The Hon'ble Supreme Court in case of Sri Ram Pasricha vs. Jagannath and others 6 has held as under:- "27. 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 he said that he is only a part- owner or a fractional owner of the property. The position will, change only when parti- tion takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.

28. Mr. Tarkunde also submitted that since the Calcutta High Court has held in Yogamaya Pakhira v. Santi Subha Bose(1) that a permanent lessee is not an owner within the meaning of section 13 (1)(f) a co- owner would not be in a better position. We are of opinion that a co- owner is as much an owner of the entire property as any sole owner of a property is. We, however, express no opinion about the case of a permanent lessee as this point does not arise in this appeal."

27) Hon'ble Supreme Court in case of Dhannalal vs. Kalawatibai and Others 7 has held as under :-

"16. It is well settled by at least three decisions of this Court, namely, Sri

(1976) 4 SCC 184

(2002) 6 SCC 16

Ram Pasricha Vs. Jagannath and Ors. (1976) 4 SCC 184, Kanta Goel Vs. B.P. Pathan and Ors.- (1977) 2 SCC 814 and Pal Singh Vs. Sunder Singh (dead) by Lrs. and Ors. (1989) 1 SCC 444 that one of the co-owners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other co-owners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every co- owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other co-owners if such other co-owners do not object. In Shri Ram Pasricha's case (supra) reliance was placed by the tenant on the English rule that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail; the requirement must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectfully dissented from the rule of English law. This Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being "if he is the owner", the expression as employed by Section 13(1)(f) of W.B. Premises Tenancy Act, 1956."

28)Hon'ble Supreme Court in subsequent judgment reiterated the same legal position relying upon the judgment passed by the Hon'ble Supreme Court in case of Dhannalal (supra) in case of Kasthuri Radhakrishnan and Others vs. M. Chinniyan and Another 8 has held as under :-

"25) Elaborating this submission, learned counsel contended that so far as the first ground is concerned it is untenable in the light of the law laid down by this Court in Dhannalal Vs. Kalawatibai and Others, (2002) 6 SCC 16, wherein it is laid down that it is not necessary to implead all the co- owners of the suit premises in eviction petition and even if some of the co- owners have filed the eviction petition, it is maintainable in law. According to learned counsel since this finding was recorded by the High Court without taking into consideration the law laid down by this Court in the case of Dhanalal (supra), the same deserves to be set aside."

29) Therefore, this ground that other co-owners have not joined the suit is not acceptable and is liable to be rejected. The defendants deny the tenancy of the plaintiffs and have taken inconsistent defence that other co-owners have not joined suit on this count alone the suit should have been dismissed by the trial Court. The defendants are also claiming

(2016) 3 SCC 296

ownership over the suit land which has been negated by the learned trial Court while deciding the issue No. 3. This establishes that defendants intend to adversely effect the interest of the plaintiffs, thus made out a case for eviction under Section 12(1)(c) of the Act.

30)Learned counsel for the appellants would submit that respondents have not produced any material on record to demonstrate that the land was bonafide required for use of the respondents, therefore, there is no material on record to attract provisions of Section 12(1)(f) of the Act for eviction of the tenants from the rented land.

31)On the other hand learned counsel for the respondents vehemently opposed the submission made by the learned counsel for the appellants and would submit that they have submitted map with regard to construction of house and stated in their evidence that they have sufficient fund around Rs, 5,00,000/- which is sufficient for construction of the house, therefore, the findings recorded by the trial Court that there is bonafide requirement of the land cannot be said perverse, contrary to record, hence submission made by the learned counsel for the appellants that there is no bonafide need of the land, is not acceptable.

32)The learned trial Court on the basis of evidence has found that plaintiffs have already prepared the plan for construction of house and they have sufficient fund for construction of the house and thereafter, the judgment and decree passed under Section 12(1)(f) of the Act. The trial Court has recorded the finding that there was genuine requirement for residential purpose. As such, the respondents are entitled for getting vacant possession of the land. It is well settled position that on the bonafide requirement the tenant cannot dictate the plaintiffs bonafide requirements of the tenancy land. Hon'ble Supreme Court in case of Prativa Devi (Smt) vs. T.V. Krishnan 9 has held as under :-

"2. The proven facts are that the appellant who is a widow, since the demise of her husband late Shiv Nath Mukherjee, has been staying as a guest with Shri N. C. Chatterjee who was a family friend of her late husband, at B-4/20, Safdarjung Enclave, New Delhi. There is nothing to show that she has any kind of right whatever to stay in the house of Shri Chatterjee. On the other hand, she is there merely by sufferance. The reason given by the High Court that the appellant is an old lady aged about 70 years and has no one to look after her and therefore she should continue to live with Shri Chatterjee, was hardly a

(1996) 5 SCC 353

ground sufficient for interference. The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after.

Now, that is a lookout of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bona fide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances.

3. The learned counsel for the appellant however relies on the following observations made by a learned Single Judge (T. P. S. Chawla, J.) supposed to be based on the decision of this Court in Phiroze Bamanji Desai v. Chandrakant N. Patel [(1974) 1 SCC 661 : (1974) 3 SCR 267 ] to the effect "I think, the true test is whether, on an overall and reasonable view, it can be said that the landlord has suitable accommodation available for his use. In deciding this question one should certainly have regard to the fact that the landlord has no legal right to the other accommodation, but that is only a factor and not the end of the matter."

These observations proceed on a misunderstanding of the ratio of the decision of this Court in Phiroze Bamanji Desai case [(1974) 1 SCC 661 : (1974) 3 SCR 267 ]. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bona fides of the claim of the landlord under Section 14(1)(e) of the Act. The decision of this Court in Phiroze Bamanji Desai case [(1974) 1 SCC 661 : (1974) 3 SCR 267 ] does not lay down any such proposition. On the contrary, this Court reversed the judgment of the Bombay High Court which proceeded upon that basis. In that case, the first floor was in occupation of the mother of the appellant as a tenant and the question was as to the availability of the Truth Bungalow which was given on leave and licence to one Dr. Bharucha. The High Court came to the conclusion that the requirement of the appellant for the ground floor of the demised premises was not reasonable and bona fide since the appellant was in juridical possession of the Truth Bungalow. This Court in allowing the appeal observed : (SCC p. 668, para 8)

"Now, it is true that when premises are given on leave and licence, the licensor continues, from a juridical point of view, to be in

possession of the premises and the licensee is merely given occupation and therefore, strictly speaking the High Court was right in observing that the Truth Bungalow, which was given on leave and licence to Dr. Bharucha, was in the possession of the appellant."

The Court then pointed out : (SCC p. 668, para 8)

"But for the purpose of determining whether the requirement of the appellant for the ground floor premises was reasonable and bona fide, what is necessary to be considered is not whether the appellant was juridically in possession of the Truth Bungalow, but whether the Truth Bungalow was available to the appellant for occupation so that he could not be said to need the ground floor premises. If the Truth Bungalow was in occupation of Dr. Bharucha on leave and licence, it was obviously not available to the appellant for occupation and it could not be taken into account for negativing the need of the appellant for the ground floor premises."

We accordingly overrule the decision of the Delhi High Court in Sat Pal v. Nand Kishore [ILR 1983 Del 73] as not laying down good law

4. In the premises, the judgment of the High Court disallowing the appellants claim cannot be supported. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bona fide personal requirement of the demised premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances."

33)The Hon'ble Supreme Court in Civil Appeal No. 231-232 of 2021 (Balwant Singh @ Bant Singh and Anr vs. Sudarshan Kumar and Anr) decided on 27.01.2021 has held that adequacy or otherwise of the space available with the landlord for the business in mind is not for the tenant to dictate. The Hon'ble Supreme Court in para 11 and 12 of the judgment held 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.

12. The Rent Controller in denying right to contest to the tenants and ordering handover of vacant possession to the landlord had noted that the landlord had returned to India and required the premises for his bona fide need and accordingly, the summary proceedings under Section 13B for recovery of possession of the entire building was found to be justified. It was also adverted that the present proceedings under Section 13B is the first one filed by the landlord to secure eviction and the earlier proceedings was under Section 13 of the Act. Moreover, there is no bar for a Non-resident Indian to get a building of choice vacated, under Section 13B of the Act."

34)The learned trial Court after appreciating the evidence and materials on record has given a finding that plaintiffs have clearly proved that they have sufficient fund for construction of the house and also submitted the map as such the defendants case for eviction under Section 12(1)(n) is made out. This finding cannot said to be perverse or contrary to the records or against the law laid down by the Hon'ble Supreme Court in this regard. Therefore, the judgment passed by the trial Court for eviction under Section 12(1)(n) has rightly been passed which does not warrant any interference by this Court.

35)From the above stated legal position and considering the materials on record, I find that there is no perversity or illegality in the judgement and decree passed by the learned trial Court evicting the defendants under Section 12(1)(a), (b), (c) and (n) of the Act, accordingly the appeal is liable to be and is hereby dismissed.

36)The learned trial Court has directed the appellants to vacate and handover the suit land immediately as far back as on 23.02.2012 to the plaintiffs, but the landlords are yet to secure possession. Be that as it may, this Court allows time until 20.08.2022 to the appellants to handover vacant possession of the premises. If any rent has been deposited by the appellants before the trial Court, the same shall be withdrawn by the respondents.

37)Decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Deshmukh