^^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR First Apueal N0. 'I c>4 /2008 B3E3 APPELLANTS ]> ENDANTS 1. Smt. Vimla Mehta, Widow of Shri Gyanshankar Mehta, R/o. 6, Mofilal Nehru Nagar, BhUai, District Durg (C.G.). 2. Archana Hsinda, Wife of Shri Sanjay Handa, R/o. 6, Motilal Nehru Nagar, Bhilai, District Durg (C.G.) Smt. Alka Bedi, W/o. Shri Jeet Singh Bedi, R/o. Qtr. No.2, C. Road 36, Sector 1, Bhilai, District Durg (C.G.). Shri Sanjay Handa, S/o. Not known, Through Mess. SE Tifin Centre, First Mala Shop No.40, MotUal Nehru Nagar, Previous Market Place, BhUai, Tahsil 8s District Durg (C.G.) RESPONDENT PKAINTIFF VERSUS ^-'Smt. Shanti Mehta, Widow of Shri Gaurishankar Mehta, Aged about 67 / years, R/o. House No.6, Motilal Nehru Nagar, Old Bhilai, Tahsil 85 District DurgfC.G.) WP6f^- \/At.\J^f T<5 TRC TL?AJ^ <9f= 'ZJ. 33,§cv/^. % APPEAL U/S. 96 OF THE CODE OF CIVIL PROCEDURE" AGAINST THE JUDGMENT AND DECREE PASSED IN CIVIL SUIT NOr''10-A/7 DECIDED ON-*2'7/2/08 BY SEVENTH ADDITIONAL DISTRICT JUDGE (F.T.C.) DURG SHRI RAJENDRA PRADHAN (A.D.J.) ri--:^! r~-< HldrH COURT OF CHHATTISGARH AT BILASPUR APPELUANTS RESPONDENT F.A. No. 104 OF 2008 Smt. Vimla Mehta and three others Versus Smt. Shanti Mehta Postfor<?-03-2010 Sd/- N.K. Agrawal Judge »STa^fc. HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANTS RBSPONDENT F.A. No. 104 QF_2008 Smt. Vinila Mehta and three others Versus Smt. Shanti Mehta SINGLE BENCH:- Hon. Shri N.K. Agarwal, J PRESENT :- Shri Arjun Yadav, Adv. for the appellants. Shri P.K. Verma, Sr. Adv. with Shri Sumit Verma, Adv. for the respondents. ORDER ( ^-3-2010) 1. This is defendants' first appeal under Section 96 ofthe Code of Civil Procedure against the judgment and decree dated B7-2-2008 passed by the ?th Additional District Judge, ^FTC), Durg in Civil Suit No. 10-A/2007 whereby and whereunder plaintiff's/respondent's suit has been decreed. 2. !Facts ofthe case, in brief, are as under:- 3. Plaintiff, widow of Late Gouri Shankar Mehta, filed a suit against the defendant No. 1, widow of Late Gyan Shankar Mehta and other defendants for their eviction and damages. According to the plaintiff, in the year 1961 her husband late Gouri Shankar Mehta was working in the Bhilai Steel Plant as Store Keeper. He purchased the suit house cpnstructed bn Plot No. 6, Motilal Nehru Nagar, Bhilai from Bhilai Steel Plant and Durg District Housing Cooperative Society, Rajnandgaon. Later on, he left the job of Bhilai Steel Plant and joined Indian Oil Corporation at Baroni and thereafter F.C.I., at Gorakhpur. Registered lease deed of the Plot No. 6 has been executed in her husband's favour by Steel Authority of India, Bhilai vide registered lease deed dated :19-2-1983, possession of the plot as well as the house was obtained. When her husband was serving at Baroni and Gorakhpur, she along with old mother, father and children used to live in the suit house. Husband ofthe defendant No. 1 late Gyan Shankar Mehta was also working in the Bhilai Steel Plant and was living in Quarter No. 29, Street No. 2, Sector II, Bhilai. In sumraer vacations, when the plaintiff used to visit her husband at his place of work at Baroni and Gorakhpur, late Gyan Shankar Mehta used to live and look after the suit house. In the year 1973 when plaintiff along with her children went to Gorakhpur, then defendant No. 1 along with .her husband left Quarter No. 29, Street No. 2 Sector II, Bhilai and started living in the suit house. On 14- 6-1973, Gyan Shankar Mehta died of accident. Then in prder to secure the family of late Gyan Shankar Mehta, late Gouri Shankar Mehta permitted the defendant No. 1 and her children to live in a portion of the suit house described m Schedule 'A' as item No. 1 to 5. Later on due to quarrel between the faraily members, it became impossible to continue them in the suit house, so a notice was sent to the defendant, but as the defendant did not vacate the portion bf the suit house, which is in their occupation, the instant suit has been filed. 4. The defendants No. 1 to 3 have filed written statement and denied the ownership of the plaintiff as well as her husband Shri Gouri Shankar Mehta over the suit house. On the other hand, it has been pleaded that late Gouri Shankar Mehta left the service of Bhilai Steel Plant in the year 1962 and went to Baroni and thereafter has surrendered his right of allotment in favour of the defendant's husband Gyan ghankar Mehta and the society has allotted the suit house m favour of late Gyan Shankar Mehta who has also paid the tentire amount payable to the society. Both Gouri Shankar Mehta and Gyan Shankar Mehta used to write "G.S. Mehta", .taking advantage of it, the plaintiff has obtained lease deed in the name of her husband from Steel Authority of India svho has already transferred the land in favour of the society/SADA and, therefore, the said lease deed is void ab initio. The society has put late Gyan Shankar Mehta in possessioh of the suit house in the month of June, 1963, ?5BK:U since then, he was living with defendants in the suit house and after his death the defendants in their own right and title. The defendants are neifher tenant ofthe suit house nor are in permissive possession, the suit is misconceived and liabile to be disraissed. 5. Learned Tricd Court framed several issues. Both the parties led evidence oral and docuraentary. 6. fThe Trial Court on a close scrutiny of the evidence led, material placed and submission made held late Gouri Shankar Mehta purchased the suit house and obtained its possession and was living with his family in the suit house and after his death in the year 1993, the plaintiff is owner of the suit house. The plaintiff is entitled for possession of a portion of the suit house described in Schedule 'A as item No. 1 to 5 by red colour in which defendants are residing with the perraission of plaintiff's husband, also entitled to Rs. 39,800 as daraages for illegal occupation of the suit house. 7. Shri Arjun Yadav, learned counsel for the appellant would 'submit that learned Court Below has erred in law and fact in passing the judgment and decree in plaintiffs favour. The appellants/defendants have proved their ownership over the suit property. Late Gouri Shankar Mehtaleft service of Bhilai Steel Plant in the year 1961 and jointed service of Indian Oil Refinery at Baroni and thereafter FCI at Gorakhpur, and thus has withdrawn his application for allotment of the suit house from the society. The lease deed executed in the name of Gouri Shankar Mehta is illegal. Learned Court below has ignored the statement of Smt. Neeru Sindul, Manager, Housing Society, Rajnandgaon. Learned Court below has committed error in relying the most interested witness Ku. Malti and thus has erred in passing the decree in plaintiff's favour. Learned Court below has further erred in awarding Rs. 200/- per day as damages. The suit has not been properly valued. The dispute is not between the landlord and the tenant. In the (B2.4 instant case, the dispute is with regard to ownership of the property. Ownership cannot be decided in an eviction suit. There is serious dispute as to which G.S. Mehta is the pwner of the suit property whether Gouri Shankar Mehta or byan Shankar Mehta. 8. On the other hand, Shri Pramod Vernaa, Sr. Adv. appearing for the respondents would submit that the learned Court pelow has rightly passed the judgment and decree in plaintiffs' favour. The documents Ex. P-1, P-2, P-7 and P-9 and lease deed Ex. P-12 clearly proves the title oflate Gouri Shankar Mehta. The defendants were living in a very small back portion of the suit house which is indicative of the fact that they are not living in the suit house as owner of the house but with permission of the plaintiff. Share certificate of the society stands in the name of Gouri Shankar Mehta. The Steel Authority of India after cancellation of the lease deed of the society, who constructed the house, has executed a lease deed in favour of late Gouri Shankar Mehta. Admittedly land belongs to Steel Authority of India therefore, no fault can be found in the lease deed. In the letters written by the defendanf No. 1 and her son to late Gouri Shankar Mehta, it was admitted that dwner of the suit house was late Gouri Shankar Mehta and now the plaintiff. The plaintiff has proved her case by producing relevant documents of title, receipts, registered lease deed and by leading cogent and clinching oral evidence. There is no dispute in the case which G.S. Mehta is the owner of the suit house. From the facts it is crystal clear that late Gouri Bhankar Mehta was the only person who was the owner of the suit house and after his demise the plaintiff, her name also stands mutated in the records of right. 9. I have heard learned counsel for the parties. Perused the judgment and decree and the record of the court below 10. The issue involved in the case is whether the defendants are residing in the suit house in their own right pr under permission of the plaintiff. 11. In order to appreciate the rival contentions put-forth by both the parties, I have examined the impugned judgraent and decree and material placed on record. 12j . Share certificate (Ex. P-1), letter sent by the Society dated 11& September, 1961 to G.S. Mehta (Ex. P-2) and letter dated 14fe October, 1961 (Ex. P-3), letter written to the Society by G.S. Mehta dated 25-9-1961 (Ex. D-1) would reveal that late Gouri Shankar Mehta (G.S. Mehta) was residing in house No. 19-B, Street 36, Sector IV, Bhilai before started residing in the suit house. In the same way, Ex. D-2, D-3, D-4, D-6 and D-9 would reveal that earlier late pyan Shankar Mehta used to reside in Quarter No. 1/B, Street 12, Sector II, Bhilai. It is also not in dispute that both the brothers late Gouri Shankar Mehta (G.S. Mehta) and Gyan Shankar Mehta (G.S. Mehta) were having cordial relations and after getting possession of the suit house, the plaintiff and her family was residing in the suit house and late Gyan Shankar Mehta along with his family also used to reside in the suit house. Question therefore, arises as to which G.S. Mehta is the owner of the suit house based on allotment by Bhilai Steel Plant or by the Society. 13. Vide Ex. P-2, the Society has informed Gouri Shankar Mehta (G.S. Mehta) regarding allotment of house being ponstructed at that time by the society on plots transferred fpy Bhilai Steel Plant to the Society for construction of 70 houses to be allotted to Bhilai Steel Plant employees who are qualified under the scheme and who apply for it. Vide letter plated dated 4& October, 1961(Ex. P-3), the Society has informed late Gouri Shankar Mehta (G.S. Mehta) that the houses are nearing completion and the tenders for the Electric fittings in the quarters are to be invited soon. The development work also is expected to be taken up shortly by the Project. Late Gouri Shankar Mehta (G.S. Mehta) is pequired to deposit 6,000/- for the final allotment of a house in his name. The share certificate has also been purchased by Shri Gouri Shankar Mehta vide Ex. P-1. Vide Ex. P-8, the (f^ Bhilai Steel Plant issued a notice regarding allotment of plots. The said notice was issued to Shri G.S. Mehta, Storekeeper, Central Stores (B), B.S.P. Vide Ex. P-9, the Bociety has clarified to Bhilai Steel Plant that the suit house has been allotted to Shri Gouri Shankar Mehta only who is at Gorakhpur. It has also been clariGed that there are no joint allottees. Ex. P-7 reveals the statement of accounts tegarding loan taken by late Gouri Shankar Mehta from. the Society for the suit house. Vide Ex. P-10, the Liquidator of the Society on 26-6-1980 has issued a non-encumbrance certificate to Shri G.S. Mehta regarding loan granted by the Society for construction of the suit house. Ex. P-11 is the peceipt of payment of loan by Shri G.S. Mehta. Vide Ex. P- 33, the Bhilai Steel Plant has mformed late G.S. Mehta that the Bhilai Steel Plant had allotted 70 plots of land to the ^ociety each measuring 80 x 100' on the North of G.E. Road in erstwhile village Amdi on certain terms and conditions which were contained in the Company's letter dated 3rd June, 1960, but as sorae dispute arose between the Society and the company regarding non-observance of certain terms and conditions contained in the letter dated 3rd June, 1960 and the Society finally advised the Company to settle the matter directly with the owners of the house vide letter ^ated 28th January, 1972 or to proceed against them as the pompany may deem fit. The Company has terminated the lease ofthe Society vide its notice dated 31-1-1975 and also terminated tenancy also in case late G.S. Mehta thought to be holding any lease hold right from the Society. However, the Company has decided to allot the land to the owners of the structures on certain terms and conditions enumerated in the said letter. Ex. P-32, the agreement between Bhilai Steel Plant and Special Area Development Authority, Bhilai Durg would i-eveal that the Special Area Development Authority, Bhilai purg has to honour the allotment/ regularization of the past cases where there is a commitment/binding on the part of asi i uas85iSi%fea^_. 0 the Company or where formal allotments/lease deeds/ licences have not been made/executed/issued, in cases like Motilal Nehru Nagar, i.e. the colony in which the suit house is situated and constructed. Vide Ex. P-14, permission was bbtained by the Bhilai Steel Plant from the Additional Collector and Competent Authority, Durg Bhilai to sell the land of suit house to late G.S. Mehta and only thereafter the Bhilai Steel Plant has executed the lease deed in favour of late Gouri Shankar Mehta. 14; The aforesaid documents would clearly establish the fact that the land owner was Bhilai Steel Plant. The Society has allotted and constructed houses to various purchasers including late Gouri Shankar Mehta. Late Gouri Shankar Mehta paid the entire loan amount to the Society. Later on, with perniission of the Competent Authority, Bhilai Steel Plant has executed a registered lease deed with regard to the land of the suit house in favour of late Gouri Shankar Mehta. The Society has also clarified its stand vide Ex. P-9 dated 1-8-73 sent to the Bhilai Steel Plant that the suit house was allotted to late Gouri Shankar Mehta only. Although Ex. D-1 reveals that late Gouri Shankar Mehta has applied to the Society for allotment of house on the basis ofjoint income of both the brothers but subsequent letters of the Society Ex. P-2 and P-3 and the loan account Ex. P-7 and Ex. P-9 would clearly reveal that the Society had, in fact, allotted the house in favour of late Gouri ^hankar Mehta, granted loan in his favour and it is late Gouri Shankar Mehta who has repaid the loan amount, obtained possession of the suit hous'e and his family was living in the suit house as owner of the said house. The Bhilai Steel Plant after cancellation of allotment of the Society had allotted and granted lease deed in favour of late Gouri Shankar Mehta, which cannot be said to be void or illegal. More over, the Society never objected to it. The transfer of land to SADA was subject to conditions of regularization of allotment of the plots at Motilal Nehru Nagar including suit plot in favour of the owners of the Btructures erected thereupon. Vide Ex. P-15, the house has been transferred by the Society in the narae of the plaintiff after death of late Gouri Shankar Mehta (G.S. Mehta) on 24- 11-1993. The letter written by the defendant No. 1 Ex. P-38 P-39 would reveal that the defendant No. 1 was ready to yacate the house dfter construction of their house and also was ready to pay electricity bill as per meter reading Installed in their portion. The defendants have failed to place any material to establish their ownership over the suit house, rather in latter Ex. P-38 written to late Gouri Shankar Mehta by the defendant No. 1, the defendant has admitted though indirectly the ownership of late Gouri Bhankar Mehta. Letters Ex. D-2 and D-3 appear to be written by G.S. Mehta (Gouri Shankar Mehta) through late Gyan Shankar Mehta as the address has been given in the letter oflate Gyan Shankar Mehta. Ex.. D-4 has been written by late Gyan Shankar Mehta to the Society. Even ponsidering the documents filed by the defendants, it cannot be inferred that late Gyan Shankar Mehta was the allottee and owner ofthe suit house. At the most, as per Ex. D-31,it ^an be inferred that at the time of death, late Gyan Shankar Mehta was residing in the suit house, but it cannot be inferred that he was residing in the suit house as owner thereof. 15; Kantilal Mehta (P.W. 2) and Ku. Malti Mehta (P.W.3), both sisters of late Gouri Shankar Mehta and late Gyan Bhankar Mehta have supported the stand of the plaintiff. P.W. 4 Rajnish Chandrakar employee of Bhilai Steel Plant has duly proved Ex. P-33, lease agreement. His statement stands unrebutted. P.W. 5 S.K. Banchhor, Estate Officer, Municipal Corporation, Bhiled also supported the stand of 'the plaintiff. P.W. 6 Smt. Neeru Sandul, Manager of the iociety has clearly stated in para 4 of her statement that the house has been allotted in the narne of Gouri Shankar Mehta which has not been cancelled till now. Although she has stated in her statement that the letters Ex. D-2, D-3, D- p, D-6, D-8, D-9 and D-11 are also part of record of the Bociety but she has nowhere stated that in fact, the suit house was allotted in favour of late Gyan Shankar Mehta. 16. Defendant No. 1 in para.24 of her statement has admitted that the suit house was allotted in favour of late Gouri Shankar Mehta, i.e. plaintiff's husband but she has 'fetated that the plaintiff's husband has given the suit house ko her husband for which there is no written document. She laas also admitted in para 22 of her statement that for allotment of house frora Society, share certificate is hecessary. Share certificate Ex. P- 1 is in the name of Gouri $hankar Mehta. There is no share certificate in her 1 husbands name. Loan account regarding the suit house was in the name of late Gouri Shankar Mehta (Ex. P-7). In para 25 of her statement, she has admitted that the quarter jn Sector II was allotted to her husband which has been yacated by her within two months of death of her husband. Bhe has not stated anything in her statement in order to explain her letter Ex. P-38 and P-39 in which she assured late Gouri Shankar Mehta to vacate the suit house after ponstruction of her own house. On the contrary, in para 17 of cross-examination of P.W. 1 of plaintiff Shanti Mehta, it has been suggested by the defendant No. 1 that it has been p.greed between late Gouri Shankar Mehta and the defendant that the suit house will be of late Gouri Shankar Mehta and he will give her other house and as promise has not been fulfilled by late Gouri Shankar Mehta, therefore, letter Ex. P-38 to P-40 are ofno -u.se. 17; After considering the entire evidence documentary as jwell as oral, there is no iota of doubt in my raind that the suit house was allotted to late Gouri Shankar Mehta (G.S. Mehta) and the plaintiff is residing in the suit house as bwner and the defendant No. 1 is residing in the back portion of the suit house marked in Schedule 'A' as item No. p. to 5 in red colour with permission and consent of late ri?SSBa°~<"X:: »•?>'' ^.f 10 i tjouri Shankar Mehta and thereafter with pen-nission and ponsent of the plaintiff. Therefore, the Gnding in this regard I t-ecorded by the trial Court stands to the reason and the same is affirmed. 18J So far as payment of damages in lieu of unauthorized I occupation from l-8-2001 is concerned, it appears that 1 learned Court below has granted deunages without there ibeing any cogent and clinching evidence. Looking to the ifacts and circumstances of the case, it is crystal clear that iboth fhe brothers were having cordial relations. The 'defendants were living in a portion of the suit house, ialthough with the permission of late Gouri Shankar Mehta but as family members. The daraages granted at the rate of te. 200/- per day is without any basis. The same being not teustainable in law, deserves to be set aside. It is not in iiispute that the defendants were residing in a small back portion of the suit house with permissipn of the plaintiff as family members and therefore, at the most the plaintiff is fentitled for damages from the date of institution of suit. As tihere is no evidence regarding damages, therefore, in the ponsidered opinion ofthis Court, interest ofjustice would be served if damages at the.rate of Rs. 1000/- per month is feiwarded. 19.N For the foregoing, the appeal is allowed in part. gviction part of the judgment and decree is affirmed. The y|amages granted by the trial Court is set aside and instead, damages at the rate of Rs. 1000/- per month from fhe date pf institution of suit till delivery of possession of the portion pf the suit house by defendarits is granted. Three months itipie from today is granted to the defendants to vacate the teuit house.. 20 j : No order as to costs. Sd/- N.K.Agarwa! Judge