IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT SECOND APPEAL BILASPUR, /2004 APPELLANT J)EFENDANT >^c^- /-^^v' -^^y--v' ^y^-< *-*'^ SMT- JANKI BAI WIDOW OF ^•^.^'/ SHRISHANKARLALGUPTA :'\ C^'8'^ AGED ABOUT 73 YEARS, R/0 GONDPARA BILASPUR TAHSIL AND DISTRICT - BIALASPUR %" VERSUS -fiS .{>' ENT ^LAINTIFF ^'•- / SMT. SHAIL DEVI SARAF /' W/0 SHRI SHANKAR LAL SARAF R/0 GONDPARA BILASPUR. -^" . SECOND APPEAL UNDER SECTION 100 OF CODE OF CIVIL —PROCEDJIRE_^ ^"^'^[raRTBT, aillil'IC, 'toiRTgT ^i:fii^^//oi..... •^200 sii^i'q^? ('^3?S?) os Dr. N.K.Shukla.Sr. Counsel for the appell^ Heard on the question This is defendant / tenant's decree passed by the First| 13-04-2004 in Civil Appeal Ni <tii^^*ill ^TO^ ^ 'fe1^ <FSI<^K ^T3i^PT3!I^[ Counsei with Shri Shailendra Shukla Int. of admission. appeal filed against the judgment and Additiona! District Judge, Biiaspur on i. 8-A/2004. In this case the suit fiied by the respondent ? landlord w^s decreed by the trial Court which was subsequently confirmed by t|ie first appellate Court by thejmpugned judgment and decree. Th^ plaintiff / respondent fiied a suit for ejactment against the defen^ant avemng that she had purchased the suit property through a regis|tered sale deed dated 28-08-97 from one Smt. Shashi Kiran Pandey ai|id the first floor of which was let out by the vendor on a monthly ren|t of Rs. 15/-. The suit accommodation was purchased by Smt. Shas|hi Kiran Pandey from its previoys owner Sukhdaiya Bai through a iflegistered sale deed dated20-03-1975. After purchasing the suit rtroperty the respondent /plaintiff had orally informed the defendanft/ appellant about the purchase and the vendor Shashi Kiran 'Pandeiij also inforriTed the defendant through a registered notice regarding |the said sale. However, the appellant did not pay rent nor deliv^red the vacant possession of the suit accommodationand took a ^tandthat Sukhdaiya Bai had gifted her • - . 1 .—_ - • - .^ . . . .. . .. the said property in the yea^ 1973. itwas further pleadedthatthe appellant had submitted h^r objection in the office of Municipat Gi.PRJ—pS/350—12/2000—50,000. 4- ^ifeiwlym; wrsn^isnw ^EEf •^ii'4i<n4, ®iily<i<o,[«f<?ii'yy,< / S.ft. ^6^/6^ Sii^I T^7 (^qf^^t) TRI!W(ft»(3n^ —2~ B|ai ^3 Corporation, Bilaspur on 28-|03 given an opportunity 6f puijc previous owner Sukhdaiya -!, Bilaspur in Civil Suit No. and thus the appellant discl^ suit was filed on the ground| (e) of the M.P. Accommodati(|>n the Act for brevity) and al4< Section 12 (1j(c)of the Act. non userof the rented acd under Section 12 (1)(d) an|d ->*-<' payment of land under Secti] ^ defendant however denied ft tfte between the plaintiff and >1< Pandey had no authority to was given to her regarding averred that the suit house w< month by the appellant in Sukhdaiya Bai gifted the suj then<he became the owner Soni residing on the ground and started paying the ren|t contested thesuit. decreid The triat Court was the owner of the ^bi^[ci4l*T '??TI^ff Tl '^ft <PIl+$l< ^ ST^PT <^l^t R3-98 simply objecting that she was not jchasing the said property whereas the (ai stated before the IV Civil Judge Class -A/88 that the appellant was the tenant limedthe title of the respondent. The of bona fide need under Section 12 (1) Control Act (hereinafter referred to as |o on the ground of disclaimer under fhe said Civil suit was also in respect of •mmodation for more than six months under Section 12(1}{i) and for non i|on 12(1)(a) of the Act The appeliant / flhe relationship of landlord and tenant <erself stating that Smt. Shashi Kiran (ransfer the suit property and no notice purchase of the same. It was further \as taken on monthly rent of Rs. 11/- per (he year 1962. However, the landiord jt premises in the year 1973 and since (hereof. OneKamal Soni arid Kailash loor acknowledged her as their landiord and on this groynd the defendant ^d the suit holding Shat Shashi Kiran |suit property which was validly sold by Gt.oRJ—FS/350—12/2000—50,000. ^ XI-HC—78 'S^ ^Wvf^, ^WtS, 'f^TRTy: $.^' S.O^OY^ her to the plaintiff and the p( capacity of tenant It was a!|i premises as the appellant h4< been held to be proved. Th^ appetlant was held to be dispi|oved has also been held to be decreed in favour of the plaii|itiff for possession, payment of bj @ Rs. 15/- per month, and for in favour of the plaintiff. Ttjie and the same was also dismisbed judgment and decree passed ifry Learned first appeliate arrived at the conclusion that 5 before the frial Court. The h failed to prove that the suit Bai in the year 1973. The a! facts:- A. That the deed was uijiregistered. c. That Sukhdaiya Bai registered sate deed That Sukhdaiya Bai Judne Class - II thiit 3ssession of the appellant was in the so held that a notice for vacating the id her own accommodation, has also gift of Sukhdaiya Bai in favour of the Pleading of adverse possession •proved and accordingly the suit was against the defendant and decree alance of rent of Rs. 330/-, further rent the delivery pf possession, was passed defendant preferred the first appeal by the first appellate Court and the the trial Court was confirmed. ICourtwhile dealing with issue No. 5 |the appellant failed to prove issue No. jial Court also held that the piaintiff has p^opertywas gifted to her by Sukhdaiya jsove finding is based on the following herseif sold the property through a on 20-03-75 to Shashi KiranPandey had stated on oath before the Givil theappellant was her tenant and a "L- :.?w?fft E;?¥l ^l'i'/F' ; ^ XI-HC—78 'S'ST ^TPTRTq, wai'M'ie, fsRTTgy ,.^:.d.'...?D5/0^ D. -H- as producjed vwitten statement to] Sukhdaiya Bai and the Indian Evidence the document the documents are and the statements true. According to the presumption is certified copies of thej this effect was aiso filed by said a^ per the provisions of Section 80 pf ^jct which deals with presumption as to as record of the evidence and that rtresumed to be genuine documents jnade by the persons signing it, are gection 79of the Indian Evidence Act ^ttached to the genuineness of the documents. That the appellant ha<) in the office of the| 27-05-88 and by thisj against mutation on in the said house sj purchasing the hous< not asked whether or not, which reveals] relying on the gift her favour on 14-04-11' denied by the appel| adduced by her to name mutated on th^ in the year 1973. the learned appeltat^ she deAd submitted objection ofAnnexure'B-1 "fc-- Municipal Corporation, Bitaspur on |objection the appellant had objected tpie ground that she had been residing fnce 45-46 years and at the time of ;4 from Sukhdaiya Bai the objectorwas would tike to purchase the property |that tiil 27-03-98 the appellant was not which she claims to be executed in -1|972. Though the objectionhasbeen |ant, no material evidence has been tl^e effect that she ever tried to get her basis of gift deed allegedly executed T|lus, on the ground mentioried above Court arrived at the conelusion that .+- XI-HC—78 T, ^atw®,feiRry 5-/:)'30^/o^ -s~- iWRfl ^ fsIA'rfSRsn' factum of flift deed year1999. hwas introduced for the first time in the ttie trie anU llt Learned counsel for of both the Courts belowl haveheavily relied on previous suit and writt^n therefore Section 33 of thj by the witnesses in the stage provjded thatthe or their representatives) substantiaily the same proceeding had a right appeliant was not party Sukhdaiya Bai can not be| the present proceeding. deciding issue No. 5 hav^ the above statements as Act and the document ol various other grounds As the appellant has hera Sukhdaiya Bai and at the| deed conferred no title estopped from challengin^ per theprovisions of thus the concurrent findini appellant has challenged the finding on the ground that the Courts below statement of Sukhdaiya Bai in the statement of Sukhdaiya Bai and i^ Evjdence Act be oniy evidence given juc(icial proceedjngs is relevant in the later pr<j»ceedingwas between the same parties and the question in issue was ^nd the adverse parties in the Tirst opportunifyto cross examine. As the the said proceeding, the evidence of |relied upon as against the appellant in However, both the Courts beiow while drawn a presumption on the basis of l^er Sections 79 and 80 of the Evsdence gift deed has not been accepted on enpmerated in the foregoing paragraphs. telf admitted that she was a tenant of moment it is held that registered gift |to the appeilant, the appeilant was the title of subsequent purchaser as 116 of the Indian Evidence Act and ofthe Courts below thattheappellant Secllion i^ + XI-HC—78 ~?S( '?qT?!T^PT, ^TRFTS, •N s;^; sos.^y i ^3jig*[3iT^i was tenant of the plaintiff ^nd that he has faiiedto prove his gift deed, are the Tindings offa^t Law From the discussion question of Law is involve^ substantial question of statement given in a differ( was not party contrary to application in this case as| the presumption to the ^ proceedings which has appellant by ieading below have recorded a cont of preponderance of was not in existence first time took a stand favour in the year 1 973 and| aUove !n the result, there is no iccordingly dismissed. do not find that any subsfantia! for adjudication ofthis appea! and the y formulated by the appeiiant that the r^nt proceeding in which the appellant $ection 33 of the Evidence Act has no both the Courts below have attached jtatements/ documents in the earlier been effectively rebutted by the evidence and that both the Courts ii:urrent finding of fact that on the basis the document of Annexure D-1 16-03-99 when the appeltant for the the gift deed was executed in her lassuch itwas a fabricated document. riot cogetit probajiilities befolte thfet substance in the appeal and the samei Sd/- Dhirendra Mishra Judge