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2010 DIGILAW 252 (CHH)

Sanjay Sharma v. Savitri

2010-10-20

T.P.SHARMA

body2010
JUDGMENT T.P. Sharma, J. 1. By this second appeal under Section 100 of the Code of Civil Procedure, 1908, the Appellants have challenged legality & propriety of the judgment & decree dated 20-3-1989 passed by the 1st Additional District Judge, Raigarh in Civil Appeal No. 3-A/87 affirming the judgment & decree dated 21 -1-1987 passed by the 2nd Civil Judge Class-I, Raigarh in Civil Suit No. 417A/86, whereby learned Civil Judge Class-I has decreed the suit for eviction against the Appellants herein. 2. The present second appeal has been admitted on the following substantial questions of law: (1) Whether the Courts below were right in granting a decree under Section 12(1)(e) of the M.P. Accommodation Control Act, specially when the title of the landlord is alleged to have not been proved? (2) Whether the Courts below were right in granting a decree under Section 12(1)(h) of the said Act, when no site plan was filed along with the sanction of the Corporation and for not passing an order under Section 18 of the M.P. Accommodation Control Act? And (3) Whether the suit is not maintainable for not impleading all those who have inherited the tenancy after the death of the original tenant, i.e., Baldeo? 3. As per pleadings of the parties, original Plaintiff i.e. predecessor of the Respondents was landlord of the suit accommodation which was given on rent to Baldev Sharma, father of original Defendant Bhanaram Sharma. On the ground of bona fide need for residence and reconstruction, the Plaintiffs have filed suit for eviction against the occupier of the tenanted accommodation namely, Bhanaram Sharma. Bhanaram Sharma had contested the suit and denied ownership of the Plaintiffs. He had specifically pleaded that Ramji Gangji was landlord of the suit accommodation and the suit accommodation was given on rent to Baldev Sharma. Baldev Sharma died in the year 1974 leaving behind three sons namely Harkishan, Bhanaram & Purushottam; widow Smt. Parvati; and three married daughters. All the sons and widow of Baldev Sharma were in possession of the suit accommodation. Therefore, the suit is not maintainable on the ground of non-joinder of necessary party. 4. After providing opportunity of hearing to the parties, learned Civil Judge Class-I has decreed the suit, same was challenged before the lower appellate Court and by the judgment & decree impugned, the lower appellate Court has dismissed the appeal. 5. Therefore, the suit is not maintainable on the ground of non-joinder of necessary party. 4. After providing opportunity of hearing to the parties, learned Civil Judge Class-I has decreed the suit, same was challenged before the lower appellate Court and by the judgment & decree impugned, the lower appellate Court has dismissed the appeal. 5. I have heard learned Counsel for the parties, perused judgment & decree of both the Courts below and records of both the Courts below. 6. Learned Counsel for the Appellants vehemently argued that the landlord has not proved the title of the suit accommodation. The Respondents have also not proved the ground of eviction under Section 12(1)(h) of the Chhattisgarh Accommodation Control Act, 1961 (for short 'the Act') and they have not proved the sanction plan, even the Courts have not passed any order in terms of Section 18 of the Act. Learned Counsel further argued that original Defendant Bhanaram Sharma was not the only tenant; sons, daughters & widow of Baldev Sharma were in occupation of the suit land; they are necessary party and the suit was not maintainable on the ground of non-joinder of necessary party. The Court below has not considered the aforesaid facts. In absence of proof of ownership and not impleading the persons who are necessary party, the suit was not maintainable. Both the Courts below have committed illegality by decreeing the suit in favour of the Plaintiffs. 7. On the other hand, learned Counsel for the Respondents vehemently opposed the appeal and submitted that the original Plaintiffs have proved ownership over the suit accommodation, bona fide need for residence and reconstruction; only Bhanaram Sharma, who was paying rent, was in possession of the suit accommodation after the death of Baldev Sharma and, therefore, only Bhanaram Sharma was the necessary party. Even otherwise, suit filed against one cotenant is maintainable for the purpose of eviction under Section 12(1) of the Act. Both the Courts below have rightly decreed the suit. 8. As regards decree under Section 12(1)(e) of the Act in favour of the Respondents, definitely, only owner of the suit accommodation is entitled for eviction under Section 12(1)(e) of the Act. Section 12(1)(e) of Act reads as follows: 12. Both the Courts below have rightly decreed the suit. 8. As regards decree under Section 12(1)(e) of the Act in favour of the Respondents, definitely, only owner of the suit accommodation is entitled for eviction under Section 12(1)(e) of the Act. Section 12(1)(e) of Act reads as follows: 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: xxx xxx xxx xxx xxx xxx xxx xxx xxx (e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned; XXX XXX XXX XXX XXX XXX XXX XXX XXX 9. In case of eviction under Section 12(1)(e) of the Act, landlord is required to prove the fact that he is owner as well as landlord of the suit accommodation. 10. In the present case, from inception the Appellants herein have denied the ownership of landlord and has specifically pleaded that the property was owned by one Ramji Gangji. In order to prove landlordship and ownership over the suit accommodation, original Plaintiff Vasudev Shyamji had examined himself. He has deposed that the suit accommodation was owned by Ramji Gangji, but during the lifetime of Ramji Gangji and during the lifetime of Baldeo Prasad Sharma - father of original Defendant Bhanaram Sharma, the land was received by his father. Evidence of this witness, pleadings and evidence of Defendant Bhanaram Sharma clearly reveal that father of Vasudev Shyamji i.e. Shyamji Gangji was landlord of the suit accommodation, but was not owner of the suit accommodation. In his detailed evidence, Vasudev Shyamji has not stated anything to show that how he became owner of the suit accommodation. He has specifically deposed that he did not know as to any deed was executed by Ramji Gangji or not. 11. In his detailed evidence, Vasudev Shyamji has not stated anything to show that how he became owner of the suit accommodation. He has specifically deposed that he did not know as to any deed was executed by Ramji Gangji or not. 11. Inter alia, the Appellants herein have examined the alleged owner of the property namely Natwarlal Ranchor Sawaria as Defendant witness No. 5 who has filed civil suit against the Respondent party for declaration of his right over the property. The Respondents herein have cross-examined this witness in para 4 and in para 4 of his evidence he has specifically admitted that one agreement was written between Ramji Gangji and Shyamji Gangji, owner of the property and father of Vasudev Shyamji, respectively, in which it has been specifically mentioned that in lieu of Rs. 12,502/- due against Ramji Gangji in favour of Shyamji Gangji, they will sell the suit accommodation to Shyamji Gangji. It reveals that Rs. 12,502/- was due against Ramji Gangji and he has agreed to sell the suit accommodation to Shyamji Gangji, However, the Respondents have not adduced any evidence to show that whether any sale deed was executed and whether ownership of the suit accommodation was transferred to Shyamji Gangji or his son Vasudev Shyamji. While deciding this issue, both the Courts below have decided the issue in favour of Plaintiff Vasudev on the ground that the Defendant has admitted that father of the Plaintiffs used to collect rent of the suit accommodation. This fact is not sufficient to prove ownership over the property especially when ownership is under dispute and the Plaintiffs have not adduced any evidence to prove that the Plaintiffs or their father was owner of the suit accommodation. Heavy burden was on the Plaintiffs to prove their ownership as required under Section 12(1)(e) of the Act, but the Plaintiffs have not proved their ownership over the property in summary suit for eviction. 12. Consequently, in absence of proof of ownership of the suit accommodation, the Plaintiffs are not entitled for decree of eviction against the Defendants. The suit has also been decreed under Section 12(1)(h) of the Act. In absence of any entitlement under Section 12(1)(e) of the Act, both the Courts below were under obligation to decide the question of eviction in accordance with Section 18 of the Act. The suit has also been decreed under Section 12(1)(h) of the Act. In absence of any entitlement under Section 12(1)(e) of the Act, both the Courts below were under obligation to decide the question of eviction in accordance with Section 18 of the Act. However, both the Courts below have not obtained any consent from the Appellants herein/tenants. Inter alia, as per evidence of both the parties, ownership of the property is under dispute. Therefore, any decree for eviction of the suit accommodation in favour of a person who has not proved the ownership or entitlement would also not be proper. 13. As per pleadings of the Appellants herein, the tenanted accommodation was inherited by Bhanaram Sharma, his brothers and mother whom the Plaintiffs have not made party on the ground that rent was paid by Bhanaram Sharma and Bhanaram Sharma was in possession of the suit accommodation. Even otherwise, this issue has been dealt in detail by both the Courts below and concurrent findings of both the Courts below are not required to be disturbed. 14. Consequently, all the three substantial questions of law formulated for the decision of this appeal are decided as negative. On the basis of findings on the substantial questions of law, the Respondents herein are not entitled for eviction of the suit accommodation. 15. Consequently, the second appeal is allowed. Judgment & decree of both the Courts below are hereby set aside and the suit filed for eviction of the tenanted accommodation is hereby dismissed. Parties shall bear their own costs. 16. Advocate fees as per schedule. 17. Decree be drawn up accordingly.