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Judgment
This second appeal preferred under Section 100 of the CPC by the defendants / appellants herein 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 appellants by the respondent i.e. Khasra No.58/7 is part of
the land of Khasra No.58/1 â€Aâ€?
Whether the Courts below have erred in holding that the appellants were 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.2
situated at Dinesh Smriti Bhawan over Khasra No.58/7 which was let out to Girdhari Lal Notani â€" defendant No.1 for commercial purpose on a
monthly rent of Rs. 550/-. It was further pleaded that without taking any prior permission from the plaintiff, defendant No.1 sublet the suit property to
defendant No.2 who started further construction on the suit property unauthorisedly and further, rent of the suit property was also 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 defendants appeared and filed their written statement controverting the allegations made in the plaint and stated that
the suit accommodation was firstly given to defendant No.1 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 defendant No.2 and also entitled for rent from September, 2001 to May, 2003
total amounting to Rs. 11,550/-. Both the defendants preferred first appeal there-against before the first appellate Court and the first appellate Court
by its impugned judgment & decree dismissed the appeals finding no merit against which both the defendants have preferred second appeals 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 appellants herein / defendants, would submit that the lower appellate Court has committed
legal error in holding the land given on rent to the defendants 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 defendant No.1 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 defendant No.1 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 Sangha (2010) 10 SCC 512, 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 defendants namely, defendant No.1 Girdhari Lal Notani and co- tenant Shankar
Notani in which the defendants filed their joint written statement admitting that the plaintiff has given the suit land to defendant No.1 on rent and
defendant No.1 wanted to deliver peaceful possession of the vacant accommodation to the plaintiff as he opened shop at another place and demanded
the security amount back then the plaintiff directed defendant No.1 to find-out a tenant by which he can get the refund of the security amount of Rs.
30,000/- and accordingly, defendant No.2 was let out the possession of the suit accommodation and from November, 1988, defendant No.2 is tenant
and the plaintiff is taking rent from defendant No.2 since November, 1988. By way of amendment, on 20-12-2005, the defendants 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 defendants have filed Ex.D-6 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 defendant No.1 in which
defendant No.1 herein (tenant of Shop No.2) and Akhtar Khan (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 No.1 having admitted tenancy in the written statement and in the examination-in- chief 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. 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 defendant No.1 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: -
Defendant No.1 has clearly admitted in para 2 of his written statement that the suit accommodation was let out by the plaintiff to him and he let out
to defendant No.2 in November, 1988. Not only this, in the affidavit filed under Order 18 Rule 4 of the CPC, defendant No.1 Girdhari Lal Notani, 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, Shankar (PW-3) â€" defendant No.2 has stated that he has taken the suit accommodation from the plaintiff from November, 1988. As such,
there is overwhelming evidence and admission on the part of defendant No.1 that he has taken the suit accommodation on rent from the plaintiff. This
fact has been admitted by defendant No.1 in the written statement and his witness defendant No.2 and one Akhtar Khan who was defendant No.1 in
another suit have clearly admitted that defendant No.1 is tenant of the plaintiff, as per admission, from the year 1986. As such, the finding recorded by
the two Courts below that defendant No.1 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.