Dismissed

M/S Gautam Chand Tikam Chand v. Sampatlal Jain

Chhattisgarh HC17 Sept 2024FA/1/2011

Case brief

AI extract

What is this about?

This is an eviction appeal where the appellant, a commercial firm, challenged the lower court's decree evicting a tenant on grounds of bona fide requirement. The High Court dismissed the appeal, holding that the leaseholder satisfied the definition of landlord under the Act and that the alleged sale agreement was unproven.

What did the court decide?

The appeal was dismissed and the judgment and decree of the lower court upholding ejectment were affirmed.

M/S Gautam Chand Tikam Chand Vs… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

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Digitally signed by NADIM MOHLE

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2024:CGHC:36379

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 1 of 2011

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M/s Gautam Chand Tikam Chand, through Proprietor Mangalchand Jain, S/o Amarchand Jain, Shop No. J-3, Textile Market Pandri, Raipur, Tehsil and District Raipur, Chhattisgarh. ---- Appellant/Defendant

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versus

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Sampatlal Jain, S/o Late Shri Hiralal Jain, aged about 44 years, resident of Bhawan Road, Bhilai-3, District Durg (C.G.). ---- Respondent/Plaintiff

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For Appellant/Defendant : Mr. B. P. Sharma, Advocate along with Mr. Karunendra Narayan Singh, Advocate

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For Respondent/Plaintiff : Mr. Manoj Paranjpe, Advocate with Mr. Shubhank Tiwari, Advocate

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Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board

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18.09.2024

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1. The appellant/defendant-M/s. Gautamchand Tikamchand through proprietor Mangalchand Jain has assailed the judgment and decree dated 08.11.2010 passed by the learned X^th Additional District Judge, Fast Track Court (FTC) Raipur in Civil Suit No. 11-A/2007, whereby the suit filed by the plaintiff/Sampatlal Jain for ejectment, possession, recovery of arrears of rent and damages has been decreed.

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1. For the sake of convenience, the original status of the parties before the learned trial Court is hereby used for the proper presentation of the facts.

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1. The brief facts of the present case are as under:-

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A. The plaintiff/Sampatlal Jain filed a suit for ejectment, possession, arrears of rent and damages in respect of suit shop No.J-3 situated at

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Textile Market, Pandari, Raipur inter alia on the ground that he is the owner of the suit shop, which was let out to the defendant/M/s. Gautamchand Tikamchand on a monthly rent of Rs. 1,801/- for nonresidential purposes.

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B. The plaintiff filed a suit under the provisions of Section 12(1)(f) of the Chhattisgarh Accommodation Control Act, 1961 (for short, the Act, 1961), on the ground of bona fide requirement. The defendant filed the written statement and denied averments made in the plaint. It is pleaded that an agreement was arrived into between the parties i.e. plaintiff, acting in the premises through his elder brother Deepchand Deshlahare, and the defendant/appellant for the sale of the suit shop for consideration of Rs. 11.50 lakhs and an amount of Rs. 11,000/was paid after 2 days of Dussehra festival on 13.10.1997 in presence of Gautam Chandra Jain, partner of the firm and thereafter, on 18.10.1997, 21.11.1997, 22.12.1997, 21.01.1998 & 14.04.1998 the amount of Rs. 40,000/-, Rs.1 lakh, Rs.1 lakh, Rs.1 lakh and Rs. 49,000/-, a total of Rs. 4,00,000/- was paid to the plaintiff and in this regard, no formal agreements were executed. The defendant requested the plaintiff to execute the sale deed, but on account of ill will and fraud, it was not done and on 20.04.1998, Gautam Chandra Jain expired. Rent up to March, 1998 was paid by the defendant and thereafter, notice was sent to the defendant to make payment of arrears of rent of 29 months, which was delivered on 21.09.2000 since the property was required for bona fide need for the son of the plaintiff, namely, Ramesh Jain for starting a business as there was no alternative shop.

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C. A legal notice was sent to the defendant which was received on 21.09.2000, who denied the claim of bona fide need. It is also pleaded that a civil suit No. 14-A/2000 was filed by the defendant for

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the specific performance of a contract and thus also denied the

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relation of the landlord and tenant.

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D. The learned trial Court framed issues and held that the plaintiff could not prove the map appended to the plaint showing it as part of the tenancy; the defendant was a tenant of the suit shop and making payment of rent of Rs. 1801 per month; the period of the tenancy began from the first date of the month till the last date; concerning the arrears of rent amount, the learned trial Court held that the defendant has already paid the entire balance rent amount; the plaintiff has proved the bona fide need of the suit shop for use of his son, namely, Ramesh Kumar Jain; the plaintiff has proved that he has no alternative shop except the suit property; but, the plaintiff could not prove that he was entitled to get arrears of rent of Rs. 57,632/-.

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E. The plaintiff examined himself as PW/1 and exhibited 9 documents from Ex.P/1 to P/9 and Ramesh Kumar Jain was examined as PW/2, whereas, Mangalchand Jain was examined as DW/1 and not a single document was exhibited by the defendant.

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F. The learned trial Court after appreciation of the evidence, partly decreed the suit and directed the defendant to hand over the suit shop within a period of 2 months vide judgment and decree dated 08.11.2010, against which, the present appeal has been preferred.

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1. Mr. B. P. Sharma, learned counsel appearing for the appellant would submit that the defendant is not a tenant of the plaintiff as an agreement to sell (oral agreement) was entered into between the parties for consideration of ₹11.50 lakhs and a civil suit is also pending for specific performance of contract. He would argue that claiming right according to the provisions of Section 12(1)(f) of the Act, 1961, the ownership of the premises is a necessary requirement; thus, the learned Court below committed an error of law in holding that the plaintiff is the owner of the suit shop. He would further submit that the suit shop was taken

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on lease by a firm, namely, M/s. Gautamchand Tikamchand, whereas Mangalchand has been arrayed as the defendant who is the proprietor of the firm. It is also argued that the word ‘lease’ is not included in Section 12(1)(f) of the Act, 1961 and only the owner has the right to institute the suit for ejectment based on bona fide need. In support thereof, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Pramod Kumar Jaiswal and others v. Bibi Husn Bano and others, (2005) 5 SCC 492 and would submit that the defendant has acquired the status of co-owner after execution of an agreement to sell. He would state that the interest of the defendant got merged in the suit property. He would further state that since there was no relation of landlord and tenant between the parties, the learned Court below committed an error of law in decreeing the suit.

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1. On the other hand, Mr. Manoj Paranjpe, learned counsel appearing for the plaintiff would oppose and submit as under:-

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A. While seeking an ejectment on the grounds of bona fide requirement, the landlord is required to allege and prove not only that he is the landlord but also the owner of the premises. He would refer to the definition of “Landlord” defined under Section 2b of the Act,1961 which states ‘a person who for the time being is receiving or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent, if the accommodations were let to a tenant’. He would submit that the plaintiff is the owner of the suit property and a lease was granted in his favour by the Raipur Development Authority on 20.04.1981 for the period from 20.04.1981 to 19.04.2011 pertaining to the suit shop. He would further contend that a notice was issued to the appellant and the tenancy was terminated on 18.09.2000 (Ex.P/3)

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and this notice was delivered to the defendant on 21.09.2000. It is also argued that the defendant was paying rent regularly from the date of tenancy i.e. 07.12.1982. He would also submit that the term ownership of the property would include the lease and the leaseholder. He would further contend that the mere execution of an agreement to sell would not confer any right in favour of the defendant. He would also submit that the defendant in para-8 of the written statement has admitted these facts that vide notice dated 18.09.2000 after the termination of tenancy; there was no relation of landlord and tenant between the parties. He would further submit that the defendant has also admitted the fact that the property was leased out in favour of the plaintiff by the Raipur Development Authority.

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G. Mr. Paranjpe would further submit that the issue involved in the present case is no more res-integra and the Hon’ble Supreme Court as well as the High Courts have categorically held that the landlord is required to allege and prove the fact that he is a landlord and owner of the property. He would also submit that according to the provisions of Sections 12(1)(f) and 2(b)(i) of the Act, 1961, it is clear that under the Act, the concept of land-lordship is different from ownership. He would state that a person may be a landlord though not an owner of the premises.

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H. It is also argued that to succeed in an eviction suit under the Act, 1961, the landlord is required to prove the contract of tenancy between the landlord and tenant and the ground on which the eviction is sought. In support thereof, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Radha Devi Vs. Deep Narayan Mandal & Ors., (2003) 11 SCC 759, ( para -4) .

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I. Mr. Paranjpe would contend that the defendant has not produced any

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document to substantiate the contention that any agreement to sell was executed between the parties. In this regard, reliance has been placed on the matter of Beena & ors. v. Charan Das, 2024 SCC OnLine SC 2490, (para -19) and the judgment passed by this Court in the matter of M /s. Ahmed Ji Bhai v. Smt. Krishna Kumari Bhanjdev Rajmata and anr., SA No. 328 of 2006, (para-11 to 15) .

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1. I have heard learned counsel appearing for the parties and perused the documents placed on the record with utmost circumspection.

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In the matter of Pramod Kumar Jaiswal (supra), the judgment relied on by learned counsel for the appellant, the suit premises were taken on rent by Ram Babu Jaiswal, the predecessor of Pramod Kumar Jaiswal from one Qasim. The tenancy continued. Pramod Kumar Jaiswal took an assignment of the rights of certain heirs of Qasim. The legal representatives of Qasim filed a case for fixation of fair rent and the same was fixed by the House Controller of the trial Court to the tune of Rs. 4950/- per month. An appeal was preferred which was dismissed by the High Court. It was argued before the Hon’ble Supreme Court by the tenants that they had taken assignment of the rights of certain co-owners, being the heirs of Qasim (the original land-lord), therefore, the lease or the tenancy over the building was extinguished and there was no subsisting relationship of landlord and tenant between the parties. The principle of the merger was raised by the appellant-Pramod Kumar Jaiswal. The Hon’ble Supreme Court while dealing with Section 111(d) of the Transfer of Property Act, held that this Section leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased become vested at the same time in one person in the same right, the determination of the lease cannot take place. On taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner lessor,

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cannot successfully raise the plea of determination of tenancy on the ground of merger of the lessee's estate in that of the estate of the landlord and thus dismissed the appeal.

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1. In the present case, the lease was issued in favor of the plaintiff and interest was never vested at the same time in the same person in the same right thus facts of both cases are distinguishable. Further, the defendant is claiming the right by virtue of the agreement to sell and the suit for specific performance is still pending thus the status of the defendant cannot be held as of landlord. The law of merger of interest will also not attract as there is an admission of the defendant that prior to termination of tenancy, he was a tenant.

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1. In the present case, the learned counsel appearing for the appellant/defendant has taken a plea that Section 12(1)(f) of the Act, 1961, only empowers an owner of the property to maintain a suit for eviction.

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1. Admittedly, a lease was granted in favour of the plaintiff and it is not in dispute that when the suit shop was let out, the plaintiff was the leaseholder of the property and the defendant was a tenant.

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1. Section 12(1)(f) of the Chhattisgarh Accommodation Control Act, 1961 is reproduced under for reference:-

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“12(1)(f)- that the accommodation let for non-residential purposes is required bonafide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters 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 non-residential accommodation of his own in his occupation in the city or town concerned] ”

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1. Section 2(b) of the Act, 1961 defines landlord and the same is reproduced herein below:-

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“2(b) "landlord" means a person, who, for the time being, is receiving, or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the accommodation were let to a tenant and includes every person not

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being a tenant who from time to time derives title under a landlord ”

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1. The above-stated provisions clarify that the position of the land-lord cannot be decided based on title or ownership. A person who is entitled to receive rent of accommodation would be a landlord for the purposes of the Act, 1961.

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In the matter of M/s. Ahmed G. Bhai (supra) , the High Court in para-11 to 15 held as under:-

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“11. From the aforesaid provision, it is quite vivid that clause (f) of Section 12(1) of the Act of 1961 would apply if the following conditions or requirements are satisfied: -

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(1) that the accommodation is let for non-residential purposes;

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(2) that the accommodation so let is required bonafide by the landlord;

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(3) that the requirement is for the purposes of continuing or starting business;

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(4) that the said business is his or that of any of his major sons or unmarried daughters or that of any person for whose benefit the accommodation is held, as the case may be;

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(5) that either the landlord or any other person for whose benefit the accommodation is held, as the case may be, is the owner of the premises;

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(6) that the landlord or such other person, as the case may be, has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.

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12. Thus, from the aforesaid analysis, it is quite vivid that in order to get decree under Section 12(1)(f) of the Act of 1961, landlord or any other person for whose benefit the accommodation is held, must be owner of the suit accommodation i.e. sine qua non for getting decree under Section 12(1)(f) of the Act of 1961.

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13.The Supreme Court in the matter of Sheela and others v. Firm Prahlad Rai Prem Prakash (AIR 2002 SC 1264) has clearly held that the suit for eviction is maintainable by an owner/landlord and not by only a landlord and pleading and proving of ownership is essential. Explaining the concept of land-lordship and ownership qua landlordtenant, it was held as under:-

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“10. While seeking an eject-ment on the ground of bona fide requirement under Cl. (f) abovesaid the landlord is required to allege and prove not only that he is a 'landlord' but also that he is the 'owner' of the premises. The definition of 'landlord' and

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'tenant' as given in Cls. (b) and (i) of S. 2 of the Act make it clear that under the Act the concept of landlordship is different from that of ownership. A person may be a 'landlord' though not an 'owner' of the premises. The factor determinative of landlordship is the factum of his receiving or his entitlement to receive the rent of any accommodation. Such receiving or right to receive the rent may be on the own account of the landlord or on account of or for the benefit of any other person. A trustee, a guardian and a receiver are also included in the definition of landlord. Such landlord would be entitled to seek an eviction of the tenant on one or more of such grounds falling within the ambit of S. 12(1) of the Act which do not require the landlord to be an owner also so as to be entitled to successfully maintain a claim for eviction. Clause (f) contemplates a claim for eviction being maintained by an owner-landlord and not a landlord merely. Though of course, we may hasten to add, that the concept of ownership in a landlord-tenant litigation governed by Rent Control Law has to be distinguished from the one in a title suit. Ownership is a relative term the import whereof depends on the context in which it is used. In Rent Control Legislation, the landlord can be said to be owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else. to evict the tenant and then to retain, control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in a landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit……… ”

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14. The Supreme Court similarly, in the matter of M.M. Quasim v. Manoharlal Sharma (1981) 3 SCC 36 held that an ‘owner-landlord’ who can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own.

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15. In the matter of Dilbagrai Punjabi v. Sharad Chandra (1988) Supp SCC 710, Their Lordships of the Supreme Court have held that it was essential to sustain a claim of eviction under Section 12(1)(f) of the Act of 1961 to establish that the plaintiff was the owner of the premises. However, the Court upheld the ownership of the landlord having been proved on the basis of an admission of ownership of the plaintiff made by the defendant in reply to notice given before the institution of the suit and the recital of the name of the plaintiff as owner of the property contained in the receipts issued by the landlord to the tenant over a period of time. Thus, the burden of proving ownership in a suit between landlord and tenant where the landlord-tenant relationship is either admitted or proved is not so heavy as in a title suit and lesser quantum of proof may suffice than what would be needed in a suit based on title against a person setting up a contending title while disputing the title of the plaintiff. Nevertheless pleading and proving ownership, in the sense as it carries in Rent Control

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Law, is one of the ingredients of the ground under Section 12(1)(f) of the Act of 1961. ”

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1. The plaintiff has to prove that he is a landlord and has a right against the whole world to occupy the building. It is also held in para -12 that to get a decree under Section 12(1) (f) of the Act, 1961, the landlord or person who has accommodation would be the owner of the suit accommodation; thus, it can safely be held that the leaseholder is the owner of the property during the currency of the lease and the suit filed for eviction under Section 12(1)(f) of the Act, 1961, would be maintainable.

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1. The Hon’ble Supreme Court in the matter of Radha Devi (supra), in para-4 held as under:-

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“4. After we have heard the learned counsel for the parties, we are of the view that the Bihar Rent Act is a special Act providing for speedy disposal of eviction suit on certain grounds enumerated therein. Under the said Act eviction suit is required to be tried under summary procedure provided under the Act. To succeed in the eviction suit under the Bihar Rent Act the landlord is required to prove contract of tenancy between her and the tenant and also the ground on which the eviction is sought. In such a suit the Rent Court is not required to go into the serious question of title otherwise the purpose of the Act would stand frustrated. In the aforesaid view of the matter, we are of the view that the courts below were not justified in staying the proceedings in the eviction suit. ”

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In the matter of Beena (supra), the Hon’ble Supreme Court in para-19 held as

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under:-

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“19. The Rent Controller in passing the consent order on 05.09.1979 recorded that the dispute between the landlord and tenant had been compromised. According to the terms of the compromise contained in the statements of the parties, on the payment of Rs.12,500/- by the 11 tenant as the price of the house, he was to become the owner in possession. This narration of fact that the tenant would become the owner in possession in the order of the Rent Controller is obviously against the record, i.e., the statement of the parties, wherein it has nowhere been stipulated that the tenant, on deposit would become the owner of the property. However, in the end, the Rent Controller himself records that on the price of Rs.12,500/- being deposited on or before the 15.12.1979, the application of the landlord would be deemed to have been dismissed and on failure to deposit, it shall deem to have been allowed. It means the aforesaid consent order was only with regard to dismissing and allowing of the application of the landlord in the

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eventuality of depositing of the amount and non-depositing of the amount by the tenant. The settlement recorded in terms of the statements of the parties and even the consent order does not in any way provide or confer right of ownership upon the tenant, nor it could have been done in a proceeding for eviction of the tenant. No document, much less a registered instrument, was 12 executed between the parties transferring the title of the suit premises. In its absence obviously no transfer of title can pass from one party to another. In such a proceeding, the only option available to the Rent Controller was either to order eviction or to dismiss the application for eviction as has been done by him. ”

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18)Now coming to the facts of the present case in light of the judgments of the Hon’ble Supreme Court and the High Court, it is apparent that the defendant examined one Mangalchand Jain as DW/1, who in examination-in-chief admitted that the suit shop was rented and there was no fixed date for payment of rent. This witness also admitted that rent had been paid till the month of March, 1998. This witness further stated that the claim of the plaintiff for the bona fide need was false and baseless. This witness further stated that there was an agreement to sell between the parties and it was an oral agreement. The examination-in-chief dated 02.08.2010 would show that this witness failed to produce any document as stated in the affidavit. He admitted that he never entered the suit shop. In para-10, he denied the existence of an agreement between the parties. He also denied the existence of any dispute between the parties.

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19)The plaintiff examined PW/1 Sampatlal Jain, who proved the entries of payment of rent by the defendant. This witness admitted the fact that the suit shop was rented to Chourdia & Company. It is also admitted that there was no written rent agreement between the parties. He deposed that rent receipts were issued to the defendant. In para-22 he admitted the fact that the lease of the suit shop was granted by the Raipur Development Authority. It is also stated that the suit shop was given for non-residential purposes. This witness has denied the suggestion that any proposal was given to sell the suit shop for consideration of Rs. 11.50 lakhs. It is also denied that a total of Rs. 4 lakhs was given to the plaintiff on different dates. PW/1 has proved the bona fide

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need of the shop for his son and for termination of the tenancy, a notice was sent.

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20)The learned trial Court while dealing with the objection regarding the nonjoinder of Raipur Development Authority held that the plaintiff was the lease holder of the suit shop and the suit for eviction would be maintainable against the tenant. It is further held by the learned trial Court the plaintiff has proved his right over the suit shop as a lease was granted in favour of the plaintiff from 20.04.1982 to 04.04.2011. It is further held that the defendant was paying rent of Rs. 1801/- per month and the defendant has specifically not denied the relation of landlord and tenant between them. The learned trial Court further held that though a plea of oral agreement to sell has been taken, the same has not been proved by leading evidence. The defendant witness was not available for cross-examination; therefore, his affidavit filed under Order 18 Rule 4 of the CPC is of no value. It is further held that during the pendency of the appeal, the defendant has deposited rent up to March, 1998. A notice was also sent for termination of tenancy by the plaintiff. The learned trial Court further held that the plaintiff has proved bona fide need of the suit shop for his son as he has no other alternative property.

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21)With regard to the judgment cited by Mr. B. P. Sharma, a suit for eviction for bona fide need can be filed by a landlord, who has the right to receive the rent of any accommodation, whether on his account or on account or on behalf of or for the benefit of any other person.

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22)The defendant has not disputed the grant of lease in favour of the plaintiff and it was in existence when the suit shop was rented to the defendant. The defendant has admitted the relationship of the landlord and tenant in the affidavit filed under Order 18 Rule 4 of the CPC.

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23)Concerning the oral agreement to sell, the defendant could not prove the ingredients of such agreement; even though he did not appear before the learned trial Court for cross-examination to prove the contents of the affidavit;

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further, the defendant failed to produce documents in this regard.

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24)The plaintiff has proved his right over the suit shop; the suit shop was let out to the defendant for non-residential purposes; the legislation enables a "landlord" to seek eviction if the leased premises are bonafide required by the landlord for starting the business of a major son or daughter of the landlord; the plaintiff has to set business for his major son; the plaintiff is landlord by virtue of a lease granted by the Raipur Development Authority and he has no other suitable non-residential accommodation to start a business for his son.

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25)The Hon’ble Supreme Court in the above-referred judgments has categorically held that the suit for eviction is maintainable by the owner/landlord by proving the essential ingredients.

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26)Taking into consideration the above-discussed facts and the law, in the opinion of this Court, no case is made out for interference with the judgment and decree passed by the learned trial Court. Accordingly, this appeal fails and is hereby dismissed .

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27)No order as to cost.

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28)A decree be drawn accordingly.

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Sd/-

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(Rakesh Mohan Pandey)

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Judge

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Nadim

M/S Gautam Chand Tikam Chand v. Sampatlal Jain

Case brief

What is this about?

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M/S Gautam Chand Tikam Chand v. Sampatlal Jain

Case brief

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