M/s Hariom Enterprises, Grain Merchants & Commission Agent Vs Smt. Ved Kumari Arora and another

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 319 of 2005 of 2015, Judgment Date: Jan 30, 2015

HIGH COURT OF CHHATTISGARH AT BILASPUR
(Single Bench: Hon'ble Shri Justice P. Sam Koshy)
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Second Appeal No. 319 of 2005
Appellant M/s Hariom Enterprises,
Grain Merchants &
Commission Agent
VERSUS
Respondents Smt. Ved Kumari Arora and
another
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Present: Shri Manish Upadhyay, counsel for the appellant.
Shri B. D. Guru, counsel for the respondents.
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J U D G M E N T
(30.01.2015)
Present is a defendant/tenant's appeal whereby the tenant
is challenging the judgment and decree dated 09.05.2005 passed
by the First Additional District Judge, Raipur in Civil Appeal
No.1A of 2005 wherein the first appellate Court has affirmed and
confirmed the judgment and decree dated 30.11.2004 passed by
the Second Civil Judge Class I, Raipur in favour of the
landlord/plaintiff in Civil Suit No. 67A of 2004.
2. The instant second appeal was admitted for consideration of
only one substantial question of law i.e. “Whether both the
Courts below are justified in holding that the suit filed by coowner
is maintainable in the present case?”
3. For proper adjudication of the said substantial question of
law it would be relevant to give a brief factual matrix of the case.
The plaintiff namely Khushal Chand had filed a civil suit before
the Second Civil Judge Class-I, Raipur seeking for eviction of the
defendant/tenant i.e. the present appellant from the suit
premises under Section 12 (1) (f) of Chhattisgarh Accommodation
Control Act. The case of the plaintiff is that he is the owner of
the suit premises and had given the suit premises on rent to the
defendant on a monthly rent of Rs.600. The suit property, in
fact, belonged to two brothers namely Khushal Chand i.e. the
plaintiff and his brother Atar Chand and that initially they had
given the suit premises on rent to one Suraj Rice Mill.
Subsequently, since the owners of the Rice Mill were not
vacating the suit premises, the plaintiff and his brother filed a
suit before the Court below wherein the decree was passed in
favour of the plaintiff and his brother. However, the said
judgment and decree passed in favour of the plaintiff and his
brother Atar Chand was challenged before the High Court by the
said Suraj Rice Mill. During the pendency of the appeal before
the High Court, co-owner of the property Atar Chand sold his
portion of property to one Inder Singh Ahuja and since then Inder
Singh is said to be the joint owner of the suit premises.
4. In due course of time, the plaintiff had also given the suit
premises on rent to the defendant/tenant Hariom Enterprises on
a monthly rent of Rs.600. Later on, vide notice dated 04.10.1993
which was received and delivered at the defendant on
05.10.1993, the landlord plaintiff had asked the defendant
tenant for vacating the suit premises by 31st October, 1993.
After the communication of 31.10.1993, since the defendant did
not vacate the suit premises, the plaintiff terminated/cancelled
tenancy Deed with the defendant and filed a suit before the Court
below seeking for eviction of the defendant from the suit premises
and for vaccant possession of the suit premises by the defendant
to the plaintiff.
5. The defendant/tenant entered appearance and submitted
his written statement categorically denying the contentions raised
by the plaintiff in the plaint and further alleged that he had taken
the suit premises for a non-residential purpose and that he was
paying rent of Rs.600 per month. It was contended in the written
statement that apart from the plaintiff, one Inder Singh Ahuja
was also the co-owner of the suit property and that the said Inder
Singh Ahuja has not been made a party to the suit and therefore
for non-joinder of necessary party the suit deserves to be
rejected. In addition, the defendant contended through his
written statement that the plaintiff had other properties also in
the city of Raipur from where he could carry out the proposed
business which he intends to start and as such there was no
bonafide need on the part of the plaintiff in getting the defendant
vacated from the suit property. That the claim of the future
damages sought by the plaintiff also was illegal claim and does
not deserve to be sustained. The defendant further contended in
the writen statement that the plaintiff intends to get him evicted
from the suit premises so that the plaintiff can further lease out
the property on rent on an enhanced rent of Rs.2,000 per month,
against which the plaintiff as on date is getting only an amount of
Rs.600 per month as rent from the defendant.
6. After the pleadings were complete, the trial court, apart
from the issues framed on the merits, also framed issue No.5
which is the issue framed on the objection raised by the
defendant in his written statement as to whether the suit of the
plaintiff is maintainable or liable to be rejected in the light of the
non-impleadment of the co-owner of the property namely Inder
Singh Ahuja.
7. The trial Court after appreciating the legal position as well
as the evidences which have come on record decided all the
issues in favour of the landlord/plaintiff holding that the plaintiff
do require the said house for bonafide need. So far as issue No.5
is concerned, the finding of the trial Court is that the nonimpleadment
of Inder Singh Ahuja by itself would not make the
suit not maintainable on account of the fact that the plaintiff in
any case had a substantial right over the suit property and
admittedly he was one of the original owners of the suit premises
and was also one of the landlords with whom the defendant had
entered into the tenancy agreement. Thus, the trial Court
decided the said issue in favour of the landlord holding that the
suit of the plaintiff was maintainable. The trial Court finally vide
its judgment dated 30.11.2004 decided the suit in favour of the
plaintiff by passing a decree against the defendant directing him
to handover the peacefull vacant possession of the suit premises
to the plaintiff within a period of 60 days from the date of
judgment. It was also directed that the plaintiff would be entitled
for Rs.600 per month towards rent from the date of judgment till
handing over the vacant possession of the suit premises.
8. This judgment dated 30.11.2004 passed by the trial Court
was put to challenge by way of first appeal under Section 96 of
CPC before the first Additional District Judge, Raipur where the
appeal was registered as Civil Appeal No.1A of 2005.
9. The first appellate Court also taking into consideration all
the contensions put forth by the appellant/tenant vide impugned
judgment dated 09.05.2005 held that the judgment and decree
passed by the trial Court does not warrant any interference.
While deciding the first appeal the first appellate Court also in
very categorical term has held that so far as the plaintiff was
having an alternative suitable accommodation in Raipur city is
concerned, the appellant/tenant has failed to lead any evidence
to substantiate his contention and therefore the said issue has
been rightly decided in favour of the plaintiff by the trial Court.
Finally, the first appellate Court vide its judgment and decree
dated 09.05.2005 rejecting the first appeal of the
appellant/tenant confirmed and upheld the judgment of the trial
Court and a decree was ordered to be passed accordingly.
10. It is this judgment dated 09.05.2005 passed by the First
Additional District Judge, Raipur which is under challenge in the
instant second appeal.
11. This Court has admitted the appeal for consideration of
only one substantial question of law as to whether the two Courts
below were justified in deciding the suit and the first appeal
holding that the suit was maintainable in spite of the co-owner
not being made a party to the suit.
12. In support of its contention, counsel for the appellant relied
upon the judgments rendered by the Supreme Court in the case
of Imambi v. Azeeza Bee reported in JT 2000 (9) SC 562.
According to the counsel for the appellant, in the instant case
also the appellant/tenant had purchased the suit premises from
Inder Singh Ahuja during the pendency of the suit before the trial
Court and as such his status has changed and after execution of
the sale deed now the tenant has become a co-owner and
therefore the entire suit itself ought to have been rejected which
the Court below has wrongly not considered. Thus, according to
the counsel for the appellant, the order of the Court below is
illegal to that extent. Counsel for the appellant further relied
upon a decision of Madhya Pradesh High Court reported in 1998
AIHC 3561 in the case of Hafizullah and another v. Smt. Shikhar
Chand Jain and others stating that once when the original coowner
transferes his share in the suit property to the defendant,
the status of the tenant becomes a co-owner of the property and
therefore the suit for eviction of tenant would not be maintainable
any further. On the same set of facts, counsel for the appellant
again relied upon a decision of the Supreme Court in the case of
Abdul Alim v. Sheikh Jamaluddin Ansari and Others reported in
(1998) 9 SCC 683.
13. However, if we peruse the three judgments cited by the
counsel for the appellant it would show that in all the three
judgments the facts were slightly different to the extent that the
property of the original co-owner in all these three cases was
subsequently transferred to the tenant to the extent of the share
owned by the co-owner. Under the said factual background, the
judgments were passed holding that once when the admitted
position stood that the tenant subsequently purchases the share
of a co-owner, the status of the tenant itself changes to be that of
a co-owner. However, in the intsnt case if we peruse the record it
would show that there has been no evidence whatsoever led by
the defendant/tenant in support of his contention or defence so
as to either establish his being co-owner of the suit property or
to disprove the claim raised by the plaintiff.
14. If we go through paragraph-17 of the impugned judgment
itself it would reveal that the amount of opportunity that was
granted to the tenant i.e. the appellant herein to lead evidence,
the fact remains that after the plaintiff had closed his evidence,
the defendant/tenant was given 17 opportunities since
06.11.2001 to 14.10.2004 i.e. for a period of about three years to
lead evidence but he did not adduce any evidence before the
Court below to substantiate its contention and to disprove the
claim of the plaintiff. Paragraph-17 of the impugned judgment
further reflects that the trial Court had even ordered for evidence
of the defendant to be recorded on commission yet the defendant
could not adduce evidence. Again the defendant was granted
opportunity of leading evidence even on imposing cost of
Rs.1,000 yet the defendant could not adduce any evidence in
support of its contention, therefore, except for the submission
made by the defendant, there has been no evidence whatsoever
on the basis of which the trial Court or the first appellate Court
could have decided the matter in favour of the
appellant/defenant.
15. Further, in one of the recent decisions reported in 2009
(10) SCC 223 in the case of FGP Limited vs. Saleh Hooseini
Doctor and another, the Supreme Court in very categorical terms
in paragraph-37 has held that if the status of the respondents as
co-owners of the property transpires clearly from the admitted
facts of the case, they cannot be denuded of the said status at
the instance of some objections by the tenants. The Court
further went on decide that a co-owner of a property is an owner
of the property till the property is partitioned. Further in
paragraph-44 of its judgment, the Supreme Court affirming the
judgment rendered by it in (2006) 2 SCC 724 in the case of
Mohinder Prasad Jain v. Manohar Lal Jain has also held that
when a co-owner files a suit for eviction against the tenant does
so on his own behalf in his own right and as an agent of the
other co-owners. The consent of the other co-owners is assumed
as taken unless it is shown that the other co-owners were not
agreeable to eject the tenant and the suit was filed in spite of
their disagreement.
16. In the instant case also it is nobody's case that the other coowners
are objecting to the filing of the suit in question. In view
of the said decision of the Supreme Court and on taking note of
the factual background of the case, this Court reaches to the
conclusion that for the reason firstly there is no evidence
whatsoever led by the appellant/defendant before the trial Court
to substantiate his contention and secondly there being no proof
whatsoever in respect of the appellant having become a co-owner
in the suit property, the two courts below have not committed
any error of law in holding that the suit filed by a co-owner is
maintainable. Accordingly, the substantial question of law is
answered in affirmative holding that the two Courts below were
justified in holding that the suit filed by the co-owner is
maintainable.
17. Accordingly, the instant second appeal is decided against
the appellant and the appeal, for the reasons mentioned in the
aforesaid paragraphs, stands rejected.
18. Decree be drawn up accordingly.
Judge