F.A. No. 43 of 2004. Case: Girija Shankar Vs Smt. Sheela Devi and others. Chhattisgarh High Court

Judgment:

Nawal Kishore Agarwal, J.

1. This is defendant's first appeal filed under Section 96 of the Code of Civil Procedure (for short 'the C.P.C.') against the Judgment and Decree dated 30-1-2004 passed by the Second Additional District Judge, Durg in Civil Appeal No. 5A of 2002 whereby and where under the plaintiff's suit filed for eviction of the appellant has been decreed. To appreciate the controversy raised in the appeal, a few relevant facts may be stated.

2. Smt. Savita Devi owned a plot at station road, Durg, having dimension of 126 feet on the north, 90 feet on the south, 60.9 feet on the east and 60 feet on the west (hereinafter referred to as the suit accommodation). Late Aditya Narayan Tiwari was a tenant on this plot on a monthly rent of Rs. 100/- and he was running saw mill there.

3. According to the original plaintiff-Smt. Sheela Devi, she purchased the suit accommodation on 11-3-1970 from Smt. Savita Devi through registered sale deed and since then she is the owner of the suit accommodation. The intimation about the purchase was given by the plaintiff to the tenant. However, the original tenant Aditya Narayan Tiwari did not pay the rent and stated that prior to transfer of the suit accommodation to the plaintiff, he had entered into an oral agreement for sale on 21-10-1969 with the original owner Smt. Savita Devi for a sum of Rs. 9,000/- and had paid Rs. 1000/- as advance to Smt. Savita Devi. However, this contention of Aditya Narayan Tiwari was contradicted by Smt. Savita Devi, who stated that she had sold the property to the plaintiff-Smt. Sheela Devi.

4. Said Aditya Narayan Tiwari, thereafter, filed a suit for specific performance of contract, bearing Civil Suit No. 9A/1971, in the court of Civil Judge, Class-1, against Smt. Savita Devi and Smt. Sheela Devi. The above suit was decreed on 23-7-1973 in his favour.

5. The plaintiff and Smt. Savita Devi preferred first appeal against the judgment and decree of Civil Judge and the same was dismissed by the first appellate Court vide its judgment and decree dated 30-3-1974. Against the judgment and decree of the first appellate Court, the plaintiff and Smt. Savita Devi preferred Second Appeal No. 361/1974 before the Hon'ble High Court of M.P. at Jabalpur. The Hon'ble High Court of M.P. allowed the Second Appeal vide its judgment and decree dated 24-11-1981 and set aside the judgment and decrees of both the Courts below.

6. Aditya Narayan Tiwari preferred a special leave petition (civil) No. 1946/82 before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the S.L.P. vide order dated 28-11-1991.

7. The original plaintiff gave a legal notice to Aditya Narayan Tiwari dated 8-2-1988 directing him to vacate the suit accommodation terminating the tenancy and further directing him to pay arrears of rent amounting to Rs. 3600/- for the last three years.

8. However, the appellant/defendant did not vacate the suit accommodation nor did pay the arrears of rent. The plaintiff did not file the suit immediately after service of legal notice as there was stay order in favour of defendant by the Supreme Court and as the S.L.P. of the defendant was dismissed on 28-11-1991, even after dismissal of the S.L.P., the appellant did not pay the rent nor did handover the suit accommodation to the plaintiff. Therefore, the suit for eviction and arrears of rent was filed.

9. According to original plaintiff, she was in the bona fide need of the suit accommodation for her business.

10. During the pendency of the suit, the original plaintiff has died on 6-11-1997 and her legal representatives including Anil Sabbarwal were brought on record in her place on 19-3-1998. Vide order dated 12-5-2000, the trial Court permitted the legal representatives of deceased-plaintiff Smt. Sheela Devi for deleting the plea of bono fide need of Smt. Sheela Devi and for adding the plea bona fide need of Anil Sabbarwal.

11. The defendant No. 1, in his written statement, stated that the suit accommodation was taken on rent by Aditya Narayan Tiwari on a monthly rent of Rs. 100/- and was a permanent tenant. After taking the land on rent, he invested lakhs of rupees in levelling and construction. Late Aditya Narayan Tiwari had subsequently entered into oral agreement of sale with the original owner-Smt. Savita Devi through her husband Biththal Das, for purchase of the suit accommodation, for a sale consideration of Rs. 9,000/- and had paid Rs. 1000/- as advance. Smt. Savita Devi agreed to execute the sale deed on 30-3-1970 in his favour after receiving full sale consideration, Late Aditya Narayan Tiwari informed the husband of the plaintiff-Smt. Sheela Devi regarding the above oral agreement of sale. Also requested Smt. Savita Devi and Biththal Das to execute the sale deed, however, they did not execute the sale deed. Then a notice dated 9-4-1970 was sent to Smt. Savita Devi directing her to execute the sale deed as per agreement of sale and thereafter a suit for specific performance was filed by late Aditya Narayan Tiwari. It was admitted by the defendant No. 1 that the suit for specific performance filed by late Aditya Narayan Tiwari was dismissed on the ground that in the plaint it has not been pleaded that the plaintiff was ready and willing to perform his part of contract. However, it was contended by the defendant that Smt. Savita Devi and Biththal Das had executed an agreement of sale of suit accommodation in favour late Aditya Narayan Tiwari and had immediately given possession to him and since then late Aditya Narayan Tiwari was in possession of the suit accommodation as purchaser till his lifetime and after his death, the defendants are in possession, and therefore, the plaintiff was not entitled to obtain possession of the suit accommodation as she is claiming her title through Savita Devi and Biththal Das, and as such, she is their representative. Thus, the plaintiff as the representative of Smt. Savita Devi has a right to obtain the remaining consideration and after that execute a registered sale deed in favour of the defendants but she is not entitled to obtain vacant possession. It was further submitted by the defendants that Biththal Das had returned the sum of Rs. 15,000/- to Smt. Sheela Devi as refund towards consideration of the sale deed, and as such, the sale in favour of the plaintiff had been foreclosed with the consent of both and so also the plaintiff was not authorized to file a suit.

12. Apart from the above submissions, the defendant further submitted that even if the plaintiff is considered to be landlord and the defendant being her tenant, in that case also she is not entitled for eviction because the suit accommodation in question has been leased out in contravention of the provisions of the Land Revenue Code, and as such, the defendant has become occupancy tenant and in these circumstances she shall only be entitled to recover monthly rent of Rs. 100/-.

13. The defendant No. 2 was proceeded ex-parte.

14. The trial Court, on the basis of the pleadings of the respective parties, framed the following issues as under:

    (i)...