HIGH COURT OF CHHAT’I‘ISGARH: BILASPUR 8.3. HON’BLE SHRI VIJAY KUMAR SHRIVASTAVA, J SECOND APPEAL N0. 163[ 2005 Appellant : Ravindra Singh, Defendant aged about 49 years, s/o. Shri Mohan Singh, r] o. in front of Bharat Mata School, Tatibandh, Raipur (CG). Vs. Respondent Ishwar Dayal Agarwal, Plaintiff aged about 57 years, s] o. Shri Shekhar Agamal, r/ o. in fmnt of Bharat Mata School, Tatibandh, Raipur (CG). PRESENT: Mr. B.P. Shanna, Counsel for the appellant. Mr. Rajeev Shrivastava, Counsel for the respondent. JUDGMENT (Dated 7/ 10/2005) Being aggn'eved by the judgment and decree dated 02/02/2005 passed in First Appeal No.2~A[2004 between Ravindra Singh Vs. Ishwar Dayal Agarwal by the Court of the 13th Additional Distn‘ct Judge (Fast Track Court), Raipur, thereby confirming the judgment and decree dated 28/04] 2004 passed in Civil Suit No.45-A/ 2002 by the court of the 5th Civil Judge, Class I, Raipur between Ishwarv Dayal Agaxwal Vs. Ravindra Singh, the appellant has preferred this second awal under Section 100 of the Code of Civil Procedure. ‘ e i w Aggellant : Defendant HIGHm COURT OF CHHATTISGARH: BILASPUR “w S.B. HON’BLE SHRI VIJAY KUMAR SHRIVASTAVA J SECOND APPEAL NO. 163(2005 Ravindra Singh, aged about 49 yeals, s/ o. Shn' Mohan Singh, r/ o. in from of Bharat Mata School, Tatibandh, Raipur (CG). Respondent Plaintiff Vs. Ishwar Dayal Agarwal, aged about 57 years, s] o. Shri Shekhar Agamal, r/ o. in &ont of Bharat Mata School, Tatibandh, Raipur (CG). PRESENT: Mr. B.P. Shanna, Counsel for the appellant. Mr. Rajeev Shrivastava, Counsel for the respondent. JUDGMENT ( Dated 7/ 10/2005) Being aggn'eved by the judgment and decree dated 02/02[2005 passed 1n First Appeal No.2-A] 2004 between Ravindra Singh Vs. Ishivar Dayal Agarwal by the Court of the 13th Additional District Judge (Fast Track Court), Raipur, themby confirming the judginent and decree dated 28/04] 2004 passed in Civil Suit No.45-A/ 2002 by the court of the 5‘11 Civil Judge, Class I, Raipur between Ishwar Dayal Agalwal Vs. Ravindra Singh, the appellant has preferred this seggnd appeal under Section 100 of ‘ / .-, the Code of Civil Procedure. 1 2) Heard learncd counsel for the appellant on admission and both The partios on M.C.P.No. 883/2005 for vacating the ex parte stay order dated 08/ 04/ 2005. 3) Respondent/plaintm' stating himself the owner landlord of the suit accommodation and appellant his tenant tiled a civil suit against the appellant for possession of the suit premises, arrears of rent and damages, claiming himself entitle for all these relieves under Section 12 (1) (A) (B) (C) (ED 8r, (O) of the M.P. Accommodation Control Act, 1961, averring that despite service of notice‘the arrears of rent have not been paid, that the suit accommodation is required bo‘na nde for his and his family members residence and no other suitable accommodation is available to him in the city, that without his permission the suit accommodation has been sublet and the roof of the house has been illegally taken in possession by the appellant and that the appellant has created nuisance. 4) Appellant in his written statement admitted the fact that the plaintiff/respondent is owner and landlord of the suit accommodation. Appellant denied all the allegations leveled against him and pleaded that respondent does not require suit accommodation for his or his family members’ residential purpose but only to increase the rent, has filed the instant suit for eviction. He further pleaded that during pendency of the suit other portions which were fallen vacant were let out to others; that i itself destroys the foundation of/bona nde requirement. S5 5) Both the parties adduced their evidence in support of their caso. Learned trial Court, after evaluating the evidence, held j that the appellant did not pay the tent from October, 1997 onwaxds and a sum of Rs.6,750/- is lying as anears. Learned trial Court further held that the suit accommodation is required bona hde by the respondent for his and his family members residential purpose and except the suit accommodation for their residential purposes, no other suitable residential accommodation is available in Raipur city, hence, decreed the suit for eviction and arrears of rent. Being aggrieved by the judgment and decree passed on 28/04/2004 in Civil Suit No.45—A/2002 by 5th Civil Judge, Class-I, Raipur, appellant/tenant filed an appeal bearing 'Civil Appeal No. 2A/2004. The appeal was heard by 13rd Additional District Judge, Raipur, who after evaluating the evidence, confirmed the findings of the nial Court and dismissed the appeal vide judgment and decree dated 02/02/2005. The tenant] appellant, being aggrieved by the impugned judgment and decree dated 02/02/2005 passed by the First Appellate Court, has nled this Second Appeal, under Section 100 of the Code of Civil Procedure, claiming that the appeal involves the following substantial questions of law. “A. Whether in the present case the grant of decree on the ground of bona fide need for residential purposes is permissible when the plainti]? has failed to prove the fact of ownership of the suit accommodation more g particularly in view of the fact that the plaimih himself has come to the court during his examinatgn about l Vi nwWmWW partition of the suit house about the partition of the suit house amongst the members of the family? Whether the alleged partition of the suit house, as stated by the plaintth during his examination is a real partition amongst the members of the family or a mere pretence of the plainti}? to avoid dismissal of the suit on the ground of fumlbnent of his alleged bone fide need of the suit accommodation? Whether the partition of suit house itself as claimed by the plaintijf between the members of the family and others of the dwerentparts of the building is permissible in view of the inhibition contained under the CG. Prakostha Swamitiv Adhiniyam, if no, Whether other parts of the building fell vacant during the pendency of the suit and prior to that can be said to extinguish the alleged bona fide need of the plaintw Whether the courts below have committed a grave error of law and jurisdiction in not exercising the power under Section 145 of the Eviderwe Act and other related provisions of the Act compelling the plaintiff to answer the questions put forth from the. side of the appellant fwVrein, as the same are relevant for proper andfair disposal of the matter and Whether nan-exercise of the said jurisdiction in light of Section 148 of the Evidence Act ah/egts substantially SQ , .3/r @i sustainability of the judgment and decree of the Court below? E. Wheiher the finding of the courts below that the rem of the suit awommodation is Rs.1,350/- per month is sustainable on the basis of the evidence brought on record by ihe parties? F. Whether the two Courts below have properly evqluated the evidence and documents brought on record by the parties to the suit in accordance with the settled principle of appreciation of ~ evidence ? 6) in plaint at para 2 respondent pleaded as below: “2) wa’IWWWWWW w$WWIWWwW wwwaa‘yWWafx‘r/WFW Wwwg‘wwwww WdWtWWJiwww WWWW§/W¢W WWWWW§/W$W wmwgwwm7$ lama W77? $W#WWW§/” 7) Appellant admits the pleading of respondent in plaint at para2whichreadsas‘rd§%waamw 1 3W2WR’ %". Neither the appeltant has chaHenged the title of respondent over the suit house in his written statement nor raised any obiection regarding l 5% partition or Iaw relating to C.G. Prakoshtha Swamitva Adhiniyam. 1976 (for short, “the Adhiniyam") that apart when respondent has admitted that appellant is owner landlord of the suit house the fact of partition or the law r providing ownership of an individual apartment in a building are irrelevant: Here‘ it is also to be considered that the Adhiniyam does not extinguish the right of a owner. , 8) ln first appeal also the question of partition and applicability of C.G. Prakostha Swamitiv Adhiniyam have not been raised. The findings of lower court with regard to rent and bona tide need have been challenged in the nrs‘t‘ appeal and also it was raised that plaintiff was required to prove his ownership. 9) Both the Courts below, after evaluating the evidence on record. have given concurrent findings that the respondent requires suit accommodation for his residential purpose bona tide and no suitable accommodation of his own is available with the respondent at Raipur. After going through the record l do not find any peNersity in evaluating the evidence. 10) lt is settled law that parties are required to prove only whatever they have pleaded and accordingly both the Courts below on the settled principle of law delivered the judgment. The questions regarding family partition of properties and applicability of the Adhiniyam has been raised by the appellant are outside the pleading of both the parties that too for the first time in this second appeal and in my opinion these questions are not relevant in the suit for/evictioW solely rest on the relation of landlord and tenant. i : r wywwW 67‘ ‘ 11) l am of the opinion that iri this second appeal no substantial question of law is involved, therefore, this appeal is liable to be dismissed and is accordingly dismissed. Consequently, M.C.P.No. 883/2005 stands disposed of. Sd/— V.K.Shrivastava Judge ‘ Raju