Dhanpat Chand Baid vs Haji Rafique Ahmed Khan
2024 Latest Caselaw 630 Chatt

Chattisgarh High Court

Dhanpat Chand Baid vs Haji Rafique Ahmed Khan on 27 June, 2024

Author: Rajani Dubey

Bench: Rajani Dubey

  Neutral Citation
  2024:CGHC:22575




                                   1

                                                                 NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                 Judgment reserved on : 14.03.2024
                 Judgment delivered on : 27.06.2024
                     Second Appeal No. 447 of 2017
      Dhanpat Chand Baid, son of Late Amarchand Baid, aged about
      53 years, Proprietor-M/s MP Tubes, Dhamtari Road, Tikrapara,
      Raipur, Tahsil and District Raipur, Civil & Revenue Distt. Raipur.
                                              ---- Appellant/Defendant
                                 Versus
      Haji Rafique Ahmed Khan, son of Late Haji Habib Ahmed Khan,
      aged about 62 years, resident of Behind Chhotapara Masjid,
      Raipur, Tahsil & District Raipur.
                                              ---- Respondent/Plaintiff


For Appellant            :     Mr. BP Sharma, Advocate
For Respondent           :     Mr. Abhishk Vinod Deshmukh, Advocate


                 Hon'ble Smt. Justice Rajani Dubey
                             CAV JUDGMENT

The appellant/defendant has filed this appeal under Section 100

of Code of Civil Procedure (in short "CPC") challenging the judgment

and decree dated 16.5.2017 passed by 3rd Additional Judge to the

Court of 1st Additional District Judge, Raipur in Civil Appeal

No.4-A/2017 dismissing the appeal arising out of the judgment and

decree dated 2.12.2016 passed by 2nd Civil Judge, Class-I, Raipur in

Civil Suit No.33-A/2013 whereby the suit was allowed.

02. Case of the plaintiff, in brief, is that the land bearing Khasra

No.271/2, Sheet No.6, Plot No.1/8, area 12000 sqft situated at

Dhamtari Main Road, Tikrapara, Tahsil and Distt. Raipur is the owned

and possessed by Smt. Zulekha Begam, widow of Late Ahmed Khan

and out of the said land, 7530 sqft land was given by her to the Neutral Citation 2024:CGHC:22575

defendant on rent for his non-residential purposes. The total land of

12000 sqft including the land given on rent to the defendant was orally

gifted to the plaintiff by Zulekha Begam on 2.2.2004 and after

transferring the said land to the plaintiff, she made him the owner and

possession holder of this land. On 26.3.2004 she also executed a

Memo regarding this oral gift in favour of the plaintiff. According to the

plaintiff, since Zulekha Begam is a Sunni Muslim, there is no need for

registration of the gift deed or the Memo. Based on the said gift deed,

the plaintiff got his name mutated in the revenue records. As such,

from 2.2.2004 the defendant became tenant of the plaintiff. However,

despite the defendant being informed by the plaintiff and Smt. Zulekha

Begam about transfer of ownership of the rented premises in favour of

the plaintiff and for payment of the monthly rent to the plaintiff, the

defendant did not respond to the same. The plaintiff also sent a

registered legal notice through his advocate on 27.11.2008 to the

defendant demanding arrears of rent from 1.11.2006 to 30.11.2008

and handing over the possession of the rented premises, but the

defendant in his reply refused to acknowledge the plaintiff as owner of

the rented premises. The plaintiff has the bonafide need of the said

rented premises for his commercial purposes as he has no other

suitable vacant place in Raipur city. Hence he filed a suit for eviction,

for recovery of arrears of rent and compensation.

03. In his written statement, the defendant denying the adverse

averments stated that Zulekha Begam had given 7000 sqft of open

land on rent to him. The contents of the gift deed in respect of the

rented premises in favour of the plaintiff are false and fabricated and Neutral Citation 2024:CGHC:22575

since it has also not been got registered, no right accrues in favour of

the plaintiff in respect of the suit land. He further stated that Zulekha

Begam is not the actual owner of the suit land but it is one Makiuddin

who informed him about execution of a gift deed in his favour.

Therefore, it is prayed that the suit is liable to be dismissed.

04. Learned trial Court on the basis of pleadings of the respective

parties, framed as many as 09 issues and upon appreciation of the oral

and documentary evidence on record allowed the suit in part with cost

and directed the defendant to hand over vacant possession of 7000

sqft of the land within two months to the plaintiff with arrears of rent of

Rs.31,500/- from 1.9.2006 to him as also to pay compensation @

Rs.200/- per month from the date of filing of the suit till delivery of

vacant possession of the suit land. The defendant challenged the said

judgment and decree before the Additional District Judge, Raipur in

appeal, however, the learned appellate Court dismissed the appeal by

the impugned judgment and decree dated 16.5.2017 by confirming the

judgment and decree of the trial Court except the findings given with

respect to arrears of rent. Hence the present second appeal.

05. Learned counsel for the appellant/defendant submits that the

impugned judgment and decree are bad in law and on fact. Both the

Courts have erred in appreciating the oral and documentary evidence

placed on record in its proper perspective. He submits that the plaintiff

claimed a decree of eviction under Section 12(1)(a)(c) & (e) of the CG

Accommodation Control Act of 1961 in respect of the suit property of

7530 sqft of land as described in the plaint in red colour lines, however, Neutral Citation 2024:CGHC:22575

he failed to prove that in fact 7530 sqft of land was rented out to the

defendant. As per the impugned decree, out of total 12000 sqft of land,

the plaintiff is entitled for possession of 7000 sqft but it has not been

made clear as to which part of 7000 sqft out of 12000 sqft is to be

handed over to the plaintiff. No specific area of 7000 sqft has been

marked in the map attached with the plaint and therefore, for execution

of the decree, one has to presume that the Court might have granted

decree of any part of 7000 sqft of the total land. As per provisions of

Order 7 Rule 3 of CPC, a decree has to be drawn in accordance with

the particulars given. For execution of a decree in relation to

immovable properties, under Order 21 Rule 11(2)(j)(i) of CPC, it has to

be shown that delivery of any property specifically decreed has been

granted and of which Court's assistance is required. However, in the

present case, a decree which has been granted is not in accordance

with the provisions of Order 21 of CPC, apart from being contrary to the

provisions of Order 7 Rule 3 of CPC. After dealing with Issue No.1

about area of property which was held to be not proved, the necessary

finding which ought to have been given is of dismissal of the suit but

the learned trial Court granted decree of 7000 sqt on the alleged

admission of the defendant.

He would next argue that while giving finding on Issue No.2, the

trial Court has merely held that total area of 12000 sqft bearing Plot

No.1/8 situated at Tikrapara, Raipur has been granted/gifted on

2.2.2004 but there is no discussion about the averments made

regarding earlier gift in favour of Smt. Zulekha Begam's son Makiuddin

Ahmed. Smt. Zulekha (PW-2) has admitted in her cross-examination Neutral Citation 2024:CGHC:22575

that she had earlier gifted the property including the suit land to her son

Makiuddin. Thus, it is clear that after making this oral gift in favour of

her son, nothing remained with Smt. Zulekha for gifting in favour of the

plaintiff and therefore, the plaintiff has no right, title or interest over the

suit property. The defendant has proved by various documents that gift

was made by Smt. Zulekha Begam in favour of Makiuddin who entered

into agreement to sell a part of the property to one Shri Heerachand

Jain vide deed dated 5.4.2005 and therefore contention of the plaintiff

that on 2.2.2004 Smt. Zulekha Begam made an oral gift in his favour

will not confer any right, title or interest in his favour.

06. Learned counsel for the appellant/defendant would submit that

though in case of landlord-tenant, the question of title is not very much

relevant, however, if one claims a decree under Section 12(1)(f) of the

Act of 1961, he has to satisfy the ingredients of Section 12(1)(f) "owner

thereof". Thus, the finding given on Issue No.2 is not in accordance

with law and liable to be set aside. So far as the other issue about

relationship of landlord and tenant is concerned, the trial Court has

erred in holding that there is a landlord and tenant relationship between

the parties as Smt. Zulekha Begam has stated that she made an oral

gift in favour of the plaintiff and in this regard since there is no cross-

examination, therefore, the landlord and tenant relationship is proved.

He submits that in view of the definition of "landlord" and "tenant" given

in Section 2(b) and (i) of the Act of 1961, it is clear that payment and

receipt of rent is an essential ingredient whereas nowhere the plaintiff

has stated about receipt of rent from the defendant. Rather, the plaintiff Neutral Citation 2024:CGHC:22575

has stated that the rent was paid by way of three cheques to Smt.

Zulekha Begam and the plaintiff's title was denied by the defendant.

Learned appellate Court has also not considered the grounds raised in

the appeal and acted contrary to Order 41 Rule 2 of CPC. Therefore,

the impugned judgment and decree are liable to be set aside and

consequently, the suit of the plaintiff be dismissed.

07. On the other hand, learned counsel for respondent supporting

the impugned judgment and decree submits that both the Courts upon

due appreciation of the oral and documentary evidence have rightly

allowed the suit of the plaintiff and as such, no interference is called for

by this Court in it. The present appeal being without any substance is

also liable to be dismissed.

08. Heard learned counsel for the parties and perused the material

available on record.

09. This second appeal was admitted on 6.8.2018 for hearing on the

following substantial question of law:

"Whether finding of the lower appellate Court by

disbelieving the document/hibanama (Ex.D.6) dated

05.09.1992 on irrelevant considerations, coupled with

misinterpreted para-11 of the statement of Zulekha Begum

(P.W.2) and that by holding that plaintiff has acquired his

interest over the suit property by way of oral gift

(hibanama) made in his favour on 02.02.2004 by said

Zulekha Begum and entitled to a decree for eviction, is

perverse?"

Neutral Citation 2024:CGHC:22575

10. It is clear that the respondent/plaintiff filed a suit against the

appellant/defendant for eviction, arrears of rent and mesne profit. As

per the plaintiff, the defendant was in possession of the suit land as a

tenant. The defendant also admitted the fact that he was in possession

as a tenant but he denied the fact that Zulekha Begum is owner of the

disputed property. The defendant stated that he paid rent regularly till

30.11.2006 on behalf of Makiuddin to Zulekha Begum and the balance

rent was deposited with the Court. The defendant also stated that

Zulekha Begum gifted this suit property to her son Makiuddin and now

Makiuddin is owner of the suit property.

11. Learned trial Court framed nine issues to decide the suit and

important issues being Issues No. 2, 3, 4, 5 & 6 are reproduced

hereunder:

"2. D;k Jherh tqys[kk csxe us fookfnr ifjlj dk ekSf[kd nku oknh ds i{k esa

fnukad 02-02-2004 dks dh gS \

"3. D;k izfroknh fookfnr ifjlj ij oknh dk 1150 :i;s ekfld nj ls fdjk;knkj

gS \

"4. D;k izfroknh }kjk okn dks fookfnr ifjlj dk fdjk;k 01-09-2006 ls vnk ugha

fd;k gS \

"5. D;k oknh dks fookfnr ifjlj dh ln~Hkkfod vko';drk fuokl;sRrj iz;kstu gsrq

gS \

"6. D;k jk;iqj 'kgj esa fookfnr ifjlj ds vykok vU; dksbZ lqfo/kk ;qDr fuokl;sRrj

iz;kstu gsrq ifjlj oknh ds ikl ugha gS \"

12. Learned trial Court appreciated the oral and documentary

evidence adduced by both the parties. The plaintiff filed various Neutral Citation 2024:CGHC:22575

property tax receipts in which name of plaintiff Haji Rafiq Ahmed Khan,

s/o Haji Habib Ahmed Khan is shown as owner of the disputed

property. Ex.P/11 and P/12 are letters dated 31.1.2007 and 12.3.2007

written to Zulekha Begum by M/s Empee Tubes for payment of rent.

Thus it is clear that the defendant regularly paid rent to Zulekha

Begum. Zulekha Begum herself stated before the learned trial Court

that she gifted the disputed property to the plaintiff and denied all the

suggestions of the defendant.

13. Main objection of the defendant is that Zulekha Begum gifted the

suit property to her son Makiuddin but it is evident from the record that

Makiuddin did not appear before the trial Court and not file any

objection. Learned trial Court found that by oral and documentary

evidence, the plaintiff has proved the fact that Zulekha Begum gifted

the suit property to him on 2.2.2004 and now the defendant is tenant of

the plaintiff. The plaintiff also proved the fact that he needed the suit

property for his business as he does not have suitable place for this

purpose in Raipur city. Learned trial Court rightly found that the

defendant did not adduce any oral and documentary evidence in

rebuttal of this statement of the plaintiff and accordingly, decided

Issues No.2 to 6 in favour of the plaintiff.

14. Learned appellate Court also considered all the grounds raised

in appeal and dismissed the same by affirming the findings of the

learned trial Court. It is clear from the record of the learned trial Court

that the defendant only denied ownership of the plaintiff on the ground

that Zulekha Begum gifted this suit property to her son Makiuddin but Neutral Citation 2024:CGHC:22575

he admitted the fact that he is in possession of the suit property as a

tenant and he also admitted the fact that he regularly paid rent to

Zulekha Begum and after that he deposited the rent with the Court.

The findings recorded by both the learned Courts are based on proper

appreciation of the oral and documentary evidence on record. Hence

this Court finds no illegality or perversity in the findings so recorded for

interference. Accordingly, the substantial question of law is answered

in the negative i.e. in favour of the respondent/plaintiff.

15. In the result, the appeal being without any substance is liable to

be dismissed and is hereby dismissed. A decree be drawn up

accordingly.

Sd/ (Rajani Dubey) Judge

Khan