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Judgment
This second appeal preferred under Section 100 of the CPC by the defendant / appellant herein (now deceased and represented through legal
representative), has been admitted for final hearing by formulating the following substantial questions of law: -
Whether the lower appellate Court has erred in holding that the land given in rent to the appellant by the respondent i.e. Khasra No.58/7 is part of
the land of Khasra No.58/1â€Aâ€?
Whether the Courts below have erred in holding that the appellant was tenant of the land belonging to the respondent?
[For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.]
The respondent / plaintiff instituted a suit for eviction and grant of arrears of rent stating inter alia that he is the title-holder of the suit shop No.1
situated at Dinesh Smriti Bhawan over Khasra No.58/7 which was let out to Akhtar Khan â€" original defendant for commercial purpose on a
monthly rent of Rs. 550/-. It was further pleaded that rent of the suit property was not paid to the plaintiff from September, 2001 and the suit
accommodation is required bona fidely for his son as he has no other suitable alternative accommodation for the bona fide need. Since the provisions
of the Chhattisgarh Accommodation Control Act, 1961 are not applicable at Village Basna, notice under Section 106 of the Transfer of Property Act,
1882, was served on 20-6-2003 terminating the tenancy and suit was instituted for eviction and arrears of rent on 19-9-2003 in which the defendant
appeared and filed his written statement controverting the allegations made in the plaint and stated that the suit accommodation was given to him on
rent, but the plaintiff refused and even declined to return the security amount of Rs. 30,000/- and as such, the plaintiff’s suit is not based on any
legal ground and six months’ notice was required to be given for terminating the tenancy and the suit deserves to be dismissed with a cost of Rs.
5,000/-.
The trial Court upon appreciation of oral and documentary evidence on record found that the relationship of landlord and tenant is established and
partly decreed the suit holding that the plaintiff is entitled for eviction of the defendant and also entitled for rent from October, 2001 to June, 2003 total
amounting to Rs. 11,550/-. The defendant preferred first appeal there-against before the first appellate Court and the first appellate Court by its
impugned judgment & decree dismissed the appeal finding no merit against which the defendant has preferred second appeal before this Court in
which two substantial questions of law have been formulated which have been set out in the opening paragraph of this judgment.
Mr. V.G. Tamaskar, learned counsel appearing for the appellant herein / defendant, would submit that the lower appellate Court has committed
legal error in holding the land given on rent to the defendant by the plaintiff i.e. Khasra No.58/7 is a part of Khasra No.58/1A by recording a finding
which is perverse to the record and further committed legal error in holding that the defendant is tenant of the plaintiff by recording a finding which is
perverse to the record. It is the case where plaintiff Kandarp Sahu has not entered into the witness box, therefore, adverse inference will be drawn as
power of attorney holder cannot depose on behalf of the landlord. As such, the second appeal deserves to be allowed and judgments & decrees of
both the Courts below be set-aside and the suit be dismissed.
Mr. Kishore Bhaduri, learned counsel appearing for the legal representative of the original plaintiff / respondent herein, would submit that both the
Courts below have concurrently and rightly held that Khasra No.58/7 is part of Khasra No.58/1A, that finding is neither perverse nor contrary to the
record and both the Courts have rightly held that the defendant is tenant of the plaintiff and the said finding is a finding of fact based on the evidence
available on record. He would further submit that the original plaintiff’s son was examined and he had right to prove facts on behalf of the plaintiff
as held by the Supreme Court in the matter of Man Kaur (Dead) By LRs. v. Hartar Singh Sangha1, as such, the appeal deserves to be dismissed.
I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost
circumspection.
Answer to substantial question of law No.1: -
The plaintiff filed suit for eviction and arrears of rent against the defendant namely, Akhtar Khan in which the defendant filed his written statement
admitting that the plaintiff has given the suit land to the defendant on rent, but by way of amendment withdrawn the admission made to the written
statement by deleting para 2 of the written statement. The plaintiff also made consequential amendment in his plaint by order dated 15-2-2006. By
way of amendment, on 20-12- 2005, the defendant introduced a plea that the land on which the suit accommodation is situated is Khasra No.58/1A,
not Khasra No.58/7 and Khasra No.58/1A is held by one Ujal @ Amrit, therefore, the plaintiff has no right to file suit for eviction. The defendant have
filed Ex.D-8 to demonstrate that the suit land is held by Ujal Shobhit, S/o Amchand, whereas the plaintiff has examined the said Ujal Sahu as PW-4 in
which he has clearly stated that he has sold the land in favour of Kandarp Sahu, the plaintiff herein, on which Kandarp Sahu (plaintiff) has constructed
a house and let-out to the defendant in which the defendant herein (tenant of Shop No.1) and Girdhari Lal Notani (tenant of shop No.1) were carrying
on their business.
As such, it is clearly proved on record that the land on which the plaintiff has constructed house is held by the plaintiff and he had purchased from
Ujal Sahu and it cannot be held that the suit land on which the suit shop is situated is held by Ujal Sahu. Even otherwise, both the Courts below have
held that the defendant is tenant of the plaintiff and defendant Akhtar Khan in his affidavit under Order 18 Rule 4 of the CPC and in the examination-
in-chief has admitted that he is the tenant of the plaintiff and as such, the defendant is estopped by Section 116 of the Evidence Act to question the
title of the plaintiff. As such, both the Courts below have concurrently and rightly held that the plaintiff has constructed the suit shop on the land held
by him and purchased from Ujal Sahu and the defendant is his tenant. Therefore, the lower appellate Court has rightly rejected the plea that the suit
land on which the suit shops were constructed, was not owned by the plaintiff and the defendant is the tenant of the plaintiff / respondent, as such,
non-examination of the plaintiff has not prejudiced his case in any manner whatsoever. The first substantial question of law is answered accordingly.
Answer to substantial question of law No.2: -
The defendant has clearly admitted in para 2 of his written statement that the suit accommodation was let out by the plaintiff to him. Not only this,
in the affidavit filed under Order 18 Rule 4 of the CPC, defendant Akhtar Khan, in para 1, has clearly stated that he has taken the suit accommodation
on rent in the year 1986 from Kandarp Sahu on monthly rent of Rs. 260/-. Likewise, Girdhari Lal Notani (DW-2) has also stated in his examination-in-
chief that the defendant has taken the suit shop on rent from the plaintiff in the year 1986 on monthly rent of Rs. 260/-. As such, there is
overwhelming evidence and admission on the part of the defendant that he has taken the suit accommodation on rent from the plaintiff. This fact has
been admitted by the defendant in the written statement and his witness Shankar (PW-3) and one Girdhari Lal Notani who was defendant No.1 in
another suit have clearly admitted in this case that the defendant is tenant of the plaintiff, as per admission, from the year 1986. As such, the finding
recorded by the two Courts below that the defendant is the tenant of the plaintiff is a finding of fact based on the evidence available on record, it is
neither perverse nor contrary to the record. The second substantial question of law is answered accordingly.
For the foregoing reasons, both the Courts below are justified in decreeing the suit of the plaintiff. The second appeal deserves to be and is
accordingly dismissed. No order as to cost(s).
Decree be drawn-up accordingly.