JUDGMENT 1. This is defendants'/tenants' second appeal under Section 100 of CPC against the judgment and decree dated 31.03.2001 passed by the Additional District Judge, Mungeli in Civil Appeal No.12-A/1998 affirming the judgment and decree dated 13.05.1998 passed by the Civil Judge Class-l in Civil Suit No. 67-A/l991. 2. The appeal was admitted for hearing on the following substantial questions of law: "(1) Whether in view of the evidence on record and non-examination of plaintiff/respondent in person after amendment of pleading, the bona fide requirement was not duly proved? (2) Whether the plea raised by the defendants/appellants regarding title of landlord amounts to disclaimer of title?" 3. Brief facts of the case are as under: (i) According to the plaintiff: he purchased two shops situated at main road, Sadar Bazar, Mungeli including suit accommodation vide registered sale deed dated 31st March, 1980 from one Prafulla Kumar Nahata and became its owner. The defendants accepted plaintiff to be their new landlord by attornment and also paid rent to him. (ii) Vide notice dt. 11.02.1989 (Ex.D.l), the plaintiff intimated regarding above purchase to the appellants and also demanded vacant possession of the suit accommodation on the ground that presently he is studying in Radiology and he would require the suit accommodation bona fidely for starting his X-ray clinic. (iii) In reply to above notice (Ex.D.2), the appellants/defendants denied bona fide need of the plaintiff and also disclaimed plaintiff's title stating the suit accommodation along with one other shop in occupation of other tenant Sriram were allotted to Anupchand and Goutamchand in family partition and they are paying rent to them and plaintiff has no right to evict defendants. (iv) After completion of studies, vide notice dated 2.4.1991 (Ex.P.44) plaintiff demanded vacant possession of the suit accommodation on the ground of his bona fide need for starting his X-ray clinic. According to the plaintiff, on appellant's assurance, he purchased X-ray machine and other instruments but the appellants did not vacate the suit accommodation, and therefore, as a temporary measure, he started his clinic at jail road, Raipur in a rented accommodation. (v) Vide reply (Ex.D.3), the appellants denied the plaintiff's bona fide need and also disclaimed stating they are paying rent to Anupchand and Goutamchand. (v) Vide reply (Ex.D.3), the appellants denied the plaintiff's bona fide need and also disclaimed stating they are paying rent to Anupchand and Goutamchand. (vi) In the above backdrop, the plaintiff filed instant suit for eviction on the ground of bona fide need under Section 12 (1)(f) and on the ground of disclaim of his title under Section 12 (1)(c) of the Chhattisgarh Accommodation Control Act, 1961 (hereinafter referred to as the Act of 1961). (vii) By filing written statement, the appellants/defendants denied bona fide need of the plaintiff as also his ownership of the suit properties inter alia pleading: although the suit property has been purchased in the name of plaintiff but it was joint family property; the above property fell in the share of Anupchand and Goutamchand and since then they are landlords and are regularly paying rent to them. (viii) The trial Court framed issues. The respondent/plaintiff examined himself as P.W.1 and Gokul Prasad as P.W.2. The defendants examined Mulchand as D.W.l and one Ganesh Prasad Tamboli as D.W.2. (ix) The trial Court decreed the plaintiff's suit on both the grounds under Section 12 (1) (f) and 12 (1) (c) of the Act of 1961. (x) The appellants/defendants preferred first appeal. During pendency of the first appeal, appellants/defendants sought amendment in the written statement, as according to the defendants, one more clinic named and styled as stone clinic has been started by the plaintiff and thereby his need is not bona fide. The above amendment was allowed. Consequently, the written statement stands amended and para 5 (c) was added. By way of consequential amendment, the plaintiff also amended the plaint and denied the averment made by the defendants in the written statement. (xi) The first appellate Court remanded the matter for recording evidence on the amended pleadings. Plaintiff examined Ashok Vaidya as P. W.3 whereas appellants/defendants examined Mulchand as D.W.1 and also one V.P. Agrawal as D.W.3. (xii) On appreciation and re-appreciation of the entire evidence, the first appellate Court affirmed the finding recorded by the trial Court and dismissed the appeal. Hence, this appeal. 4. Plaintiff examined Ashok Vaidya as P. W.3 whereas appellants/defendants examined Mulchand as D.W.1 and also one V.P. Agrawal as D.W.3. (xii) On appreciation and re-appreciation of the entire evidence, the first appellate Court affirmed the finding recorded by the trial Court and dismissed the appeal. Hence, this appeal. 4. Shri Sanjay K. Agrawal, learned counsel appearing for the appellants/ defendants, would submit: the plaintiff did not enter into witness box to prove his case pleaded vide amended para 6 (a) of the plaint, and therefore, the learned Court below should have drawn adverse inference against the plaintiff and should have held plaintiff is not in bona fide need of the suit accommodation. For this reliance has been placed on the dicta of Supreme Court, in the cases of Iswar Bhai C. Patel Alias Bachu Bhai Patel Vs. Harihar Behera and another (1999) 3 SCC 457 and Vidhyadhar Vs. Manikrao and another (1999) 3 SCC 573. It was further contended, the defendants/appellants have denied the derivative title of the respondent but they have not denied their status as tenants and also have not claimed themselves to be the owner of the premises, and therefore, the plea raised by them does not amount to disclaimer of title within the meaning of Section 12 (1) (c) of the Act of 1961 and both the learned Courts below grossly erred in holding, the appellants/defendants save disclaimed title of the plaintiff. For this He relied upon dictum of the Supreme Court in the case of Sheela and others Vs. Firm Prahlad Rai Prem Prakash AIR 2002 SC 1264. 5. Per contra, Shri Ashish Shrivastava with Shri Afroz Khan, learned counsel appearing for the respondent, contended: by amending written statement, a plea has been raised by the appellants/defendants regarding plaintiff's opening of another Stone Clinic at Raipur; consequently, the plaintiff added para 6 (a) in the plaint denying the contention raised by the appellants/defendants; it was for the appellants to prove the same, in which, they utterly failed; there is no reason to draw adverse inference against the plaintiff for not again entering into witness box. However, the plaintiff has also examined one Ashok Vaid as P.W.3 denying the contention raised by the appellants/defendants vide amended written statement para 5 (c). However, the plaintiff has also examined one Ashok Vaid as P.W.3 denying the contention raised by the appellants/defendants vide amended written statement para 5 (c). The first appellate Court, on proper appreciation of the additional evidence led by both the parties rejected additional ground of defence, taken by the appellants and has rightly affirmed the eviction decree passed in respondent's favour under Section 12 (1)(f) of the Act of 1961. It was further contended: the appellants have specifically disclaimed the plaintiff's title in reply to notice, in the written statement and also in the evidence and both the Courts below have not committed any error in decreeing the plaintiff's suit also on the ground of disclaimer of title, i.e., under Section 12 (1) (c) of the Act. According to the counsel for the respondent, the appellants could not point out any perversity, illegality or absurdity in the finding recorded by both the Courts below; no substantial question of law arises for determination of this Court and this appeal, being sans substance, deserves to be dismissed. 6. I have heard learned counsel for the parties and perused the records of Courts below including judgment and decree impugned. 7. Coming to the first substantial question of law: whether in view of the evidence on record and non-examination of plaintiff/respondent in person after amendment of pleading, the bona fide requirement was not duly proved, admittedly, the plaintiff is a Radiologist. Notice was issued by him while he was at the verge of completing his studies in the year 1989. The suit accommodation was not vacated by the appellants. He started X-ray clinic in the city of Raipur for want of reasonably suitable non-residential accommodation of his own at Mungeli. 8. As per Section 12(1)(f) of the Act of 1961, a suit can be filed for eviction of a tenant with regard to accommodation let for non-residential purposes on the ground of bona fide requirement of the landlord for the purpose of continuing or starting his business, if he is owner thereof and the landlord has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. 9. The existence of tenanted premises in Raipur in occupation of the landlord is totally irrelevant consideration to deny him accommodation at Mungeli. A doctor cannot and should not sit idle. 9. The existence of tenanted premises in Raipur in occupation of the landlord is totally irrelevant consideration to deny him accommodation at Mungeli. A doctor cannot and should not sit idle. If he starts X-ray clinic in the city of Raipur in a tenanted accommodation for want of availability of reasonably suitable non-residential accommodation of his own in Mungeli, it cannot be said that he does not need the suit accommodation bona tide or he is in occupation of reasonably suitable accommodation of his own in the city or town concerned within the meaning of Section 12 (1) (f) of the Act of 1961. 10. The Hon'ble Supreme Court, in the case of Maganlal son of Kishanlal Godha Vs. Nanasaheb son of Udhorao Gadewar (2008) 13 SCC 758, has held In para 25 of its judgment has held as under: "25. It is common experience in our country that especially landlord-tenant litigations prolong for a long time. It is true that neither can the person who has started the litigation sit idle nor can the development of the event be stopped by him. Therefore, the crucial event should be taken as on the date when the suit for eviction was filed, unless the subsequent events materially change the ground of relief." 11. By adding para 5 (c) in the written statement, it was contended by the appellants, plaintiff started one more clinic named and styled as Stone Clinic and thereby his need for starting his X-ray clinic in the city of Mungeli is extinguished. Though it was not necessary for the plaintiff to traverse the above pleading, in view of the Order 8 Rule 3 read with Rule 5 of the Code of Civil Procedure (for short 'the C.P.C. ') but by way of abundant caution the plaintiff also amended his plaint denying above contention raised by the appellants. 12. As per Section 102 of the Evidence Act, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Therefore, it was for the appellants to discharge their burden to prove the above additional ground raised by them in the written statement, in which, they utterly failed. However, the plaintiff examined one Ashok Vaid (P. W.3) as his witness, who was well versed with the facts of the case. 13. Therefore, it was for the appellants to discharge their burden to prove the above additional ground raised by them in the written statement, in which, they utterly failed. However, the plaintiff examined one Ashok Vaid (P. W.3) as his witness, who was well versed with the facts of the case. 13. It is trite law, adverse inference under Section 114 of the Evidence Act cannot be drawn for mere non-examination of plaintiff when other material witness is produced. 14. A three Judge Bench of Hon'ble Supreme Court, in the case of Pandurang Jivaji Apte Vs. Ramchandra Gangadhar Ashtekar (dead) by LRs and others AIR 1981 SC 2235, has held: the question of drawing an adverse inference against a party for his failure to appear in Court would arise only when there is no evidence on the record. 15. The Hon'ble Supreme Court, in the case of Moti Lal Vs. Chndra Pratap Tiwari and others AIR 1975 SC 1178, while dealing with election petition, has held: non-examination of particular person by successful candidate to controvert facts alleged by petitioner's witnesses in their evidence - no onus being cast upon the successful candidate to prove the particular facts, court could not draw an adverse inference against him. 16. It is also trite law, where parties had joined issue and had led evidence and the conflicting evidence could be weighed to determine which way the issue could be decided, the abstract question of burden of proof became academic. 17. In the instant case, ample evidence was available on record adduced by both the parties and based on above evidence, the issue has been decided by the Court below after considering the additional ground raised by the appellants. 18. In the instant case, plaintiff did enter into the witness-box and examined two other witnesses in support of his case and also examined P.W.3 Ashok Vaid to refute the additional ground taken by the appellants in their written statement. The Court below has decided the issue including the additional ground taken by the appellants, based on proper appreciation of the evidence adduced by both the parties. The appellate Court found, the appellants could not prove plaintiff has also started one more clinic, namely, "Stone Clinic" in the city of Raipur and he does not require the suit accommodation bona fide. 19. The appellate Court found, the appellants could not prove plaintiff has also started one more clinic, namely, "Stone Clinic" in the city of Raipur and he does not require the suit accommodation bona fide. 19. In a case where facts were not controverted by the appellant, who did not enter into the witness box to make a statement on oath denying the statement of respondent No.2 that it was at his instance, the respondent No.2 had advanced the amount of Rs.7000 to the appellant by issuing a cheque on the account of defendant (respondent No.2), the Hon'ble Supreme Court, in the case of Iswar Bhai C. Patel Alias Bachu Bhai Patel Vs. Harihar Behera and another (1999) 3 SCC 457 (supra), has held: having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872. 20. In the case of Vidhyadhar Vs. Manikrao and another (1999) 3 SCC 573 (supra), the Hon'ble Supreme Court has held: where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. 21. There is no quarrel with the ratio of law laid down by the Hon'ble Supreme Court in the cases referred hereinabove. However, the facts of the instant case are entirely different. In the instant case, the plaintiff has not set up any case by way of amendment. The additional ground was taken by the defendants and it was for the defendants to prove the same, in which, they utterly failed. Moreover, the plaintiff, by examining P.W.3 Ashok Vaid, has also refuted the additional ground of defence taken by the appellants. Therefore, the ratio of law laid down by the Hon'ble Supreme Court in the above cases and relied upon by the appellants is of no help to them. 22. Moreover, the plaintiff, by examining P.W.3 Ashok Vaid, has also refuted the additional ground of defence taken by the appellants. Therefore, the ratio of law laid down by the Hon'ble Supreme Court in the above cases and relied upon by the appellants is of no help to them. 22. Be that as it may, as held earlier, for want of availability of reasonably suitable non-residential accommodation in Mungeli, the plaintiff had to start his X-ray clinic in the city of Raipur in a tenanted accommodation, which will neither satisfy the need of the plaintiff nor can be termed as alternative accommodation within the meaning of Section 12 (1)(f) of the Act. 23. In view of above, in my considered opinion, in view of evidence on record, non-examination of plaintiff/respondent in person after amendment in pleadings, has no effect and no adverse inference can be drawn against the plaintiff and the first substantial question of law is answered in favour of respondent accordingly. 24. Coming to the second substantial question of law: whether the plea raised by the defendants/appellants regarding title of landlord amounts to disclaimer of title, the transfer of ownership by Prafulla Kumar Nahata in favour of plaintiff vide registered sale deed dated 31st March, 1980 and the payment of rent to plaintiff by the appellants vide rent receipt (Ex.P.45) are admitted facts. Despite of above facts, the appellants disclaimed plaintiff's title and pleaded, plaintiff is not the owner of the suit accommodation, which fell in the share of Anupchand and Goutamchand in a family partition and the appellants are their tenants and paying rent to them. 25. The appellant Mulchand (D.W.I) has deposed in para 7: it is true, in the year 1980 Prafulla Kumar Nahata sold the suit shop to plaintiff Paraschand; Prafulla Kumar Nahata also gave its intimation of sale to him; plaintiff Paraschand also intimated him about the above sale transaction and rent receipt is Ex.P.45 which contained plaintiff and his signature. He does not accept the plaintiff as owner of suit accommodation. 26. The High Court of Madhya Pradesh, in the case of Smt. Sugga Bai Ramnath Gupta, labalpur and others Vs. Smt. Hiralal Widow of Hiralal, Kirana Merchant, labalpur and others 1968 MPLJ 840, has held: a tenant can be permitted to deny the title of the original lessor. He does not accept the plaintiff as owner of suit accommodation. 26. The High Court of Madhya Pradesh, in the case of Smt. Sugga Bai Ramnath Gupta, labalpur and others Vs. Smt. Hiralal Widow of Hiralal, Kirana Merchant, labalpur and others 1968 MPLJ 840, has held: a tenant can be permitted to deny the title of the original lessor. Similarly, he cannot be permitted to deny the derivative title of a reversioner that he has attorned to him. However, if he has not paid any rent to him, he can certainly deny the derivative title of the reversioner. 27. The Supreme Court, in Sheela and others Vs. Firm Prahlad Rai Prem Prakash AIR 2002 SC 1264, has observed in paras 16 & 17 of its as under : "16. After the creation of the tenancy if the title of land is transferred or devolves upon a third person the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into operation for it is unjust to allow tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant how does it concern him what the title of the lessor is (See Tej Bhan Madan v. IInd Additional District Judge and others (1988)3 SCC 137). A denial of title which falls foul of the rule of estoppel contained in S.166 of Evidence Act is considered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good to the lessee himself. However, it has to be borne in mind that since the consequences of applying the rule of determination by forfeiture of tenancy as a result of denial of landlord's title or disclaimer of tenancy by tenant are very serious, the denial or disclaimer must be in clear and unequivocal terms (See Majati Subbarao v. P.V.K. Krishna rao (deceased) by LRs. (1989) 4 SCC 732; Kundan Mal v. Gurudutta (1989) 1 SCC 552 and Raja Mohammad Amir Ahmad Khan (supra). (1989) 4 SCC 732; Kundan Mal v. Gurudutta (1989) 1 SCC 552 and Raja Mohammad Amir Ahmad Khan (supra). We may quote with advantage the law as stated by Division Bench of Calcutta High Court in Hatimullah and others v. Mahamad Abju Choudhary, AIR 1928 Cal 312. It was held, "the principle of forfeiture by disclaimer is that where the tenant denied the landlord's title to recover rent from him bona fide on the ground of seeking information of such title or having such title established in a Court of law in order to protect himself, he is not to be charged with disclaiming the landlord's title. But where the disclaimer is done not with this object but with an express repudiation of the tenancy under the landlord, it would operate as forfeiture". 17. In our opinion, denial of landlord's title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant within the meaning of Cl. (c) of sub-section (1) of S.I2 of M.P. Accommodation Control Act, 1961. To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal tenns set up title of the landlord in himself or in a third party. A tenant, bona fide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy. Such an act of the tenant does not attract applicability of S.12(1)(c) above said. It is the intention of the tenant, as culled out from the nature of the plea raised by him, which is determinative of its vulnerability." 28. Such an act of the tenant does not attract applicability of S.12(1)(c) above said. It is the intention of the tenant, as culled out from the nature of the plea raised by him, which is determinative of its vulnerability." 28. By applying the ratio of law laid down by the Supreme Court in the case referred hereinabove in the facts and circumstances of the case, it is crystal clear, the appellants after having been apprised of the transfer of title and also have attorned in plaintiff's favour by paying rent to him, have denied the plaintiff's title not only in reply to the notice but also in the written statement and in the evidence adduced, as referred in preceding paragraph 21. Therefore, the denial of plaintiff's title by the appellants is an act which is likely to affect adversely to the interest of the plaintiff and hence the ground under Section 12 (1)(c) of the Act of 1961 is made out and both the Courts below have not committed any illegality in decreeing the plaintiff's suit also on the ground under Section 12 (1)( c) of the Act of 1961 based on the material available on record. 29. The second substantial question of law is also answered accordingly in respondent's favour. 30. For the reasons mentioned herein above, the appeal fails and is hereby dismissed. 31. No order as to costs. 32. A decree be drawn accordingly. Appeal Dismissed.