y ^ GF AT • Second AopeaS No. Bench: Hon?bieShri Diilo Raosaheb,Deshinykb^J» (Plaintiff) Smt. Uma Sen Gupta, VV7o Late S.B. S-en Gupta, R/o Dave Buildlng Motibagh Chowk, Raipur. Versus Mahesh Dawe, S/o Late Nawa! Snankar Dav/e, R,/o CivlJ Lines, Mogibagh Chowk, Rajpur, Tahsil & District Ralpur Presejit Shri Gautam Bhaduri, counsej for the: appellant. Shri A.K.Prasad, counsej for the rsspondent. (Passed o-n~th^30tt1 day ofAprii, 2007) Heard the appei!ant's counsel on admisslon. 2. This Is against the |ydgiTient and decree dated 19.01.2005 passed by the ist AddltlonaJ District Judge, Raipur in Civil Appeal No 7-A/2002 affirmlng the judgment and decree dated 8.05.2001 passed In Civil Sult No.221-A/1998 by the Vth Civll Judge, Class-il grantlng evlctlon of the appeilant hereln under Sectlon 12(1)(i) ofthe C.G. Accommodation Controi Act (herelnafter referred to as the 'Act3), 3. Brief facts are that the respondent/pialntlff Instltuted a Civil SulS No.221-A/1998 the appeiiant herein for evlction on grounds of bonaflde requlrement for residence as aiso on the ground that the tenant ^^miiis^i^i^ ^ was in possession of an accommodation in Avantl Vlnar, Raipur for her residence. 4. Learned Vth Civli Judge, Class-il, Raipur held that the piaintlff had falied to estabiish the ground of bonafide requirement of residence but 'granted a decree for evlction ot" the tenant only on the ground under Section 12(1)(i) ofthe Act. in First Appeai i.e. CiviJ Appeal No.7-A/2002, the judgment and decree for evictlon under SectEon 12(15(i) of the Act was affirmed. The evidence of the appeiianVdefendant as aiso her son T.K.Sen Gupta D.W.2 had reveafed that S.B.Sen Gupta, husband of the appel'ianVdefendant had constructed a spacious house in Avanti Vihar, Raipur which was avaiiable to the appellant/defendant for her residence. 5. Shri Gautam Bhaduri, tearned counsel for the appellant submitted that during pendency of the first appeai, the application fl!ed under Order 41 Ru!e 27 of C.P.C.for production of the Wiii sxscuted by late Shri S.B. Sen Gupta i.e. husband of the appellanVdefendant bequeathing the house at Avantl Vihar to his fcA/o sons, was rejected. Hls contentlon is that the Will had a materiai bearing cn the facts of the case and would have shown that the appelJant/defendant had no right to the house in Avanti Vihar, and therefore, the First Appeliate Court ought to have allowed the application under Order 41 RuSe 27 of C.P.C. No other point was urged by the iearned counsel for the appeiiant who fairiy conceded that If the document i.e. Will executed by S.B. Sen Gupta was not taken on record, the appeilant had no case. Reliance was piaced on JamshBd Frenchman (D) by LRs. vs. Ssrdar Dastur Schooi Trust and others; ^I/ AIR SCW 898, Jaspur DeveSopment Authority vs. Smt Kailashwatl Devi: AIR 1997 S.C. 3243, B.R. vs. Smt Atma Devs and othQrs, AIR 1987 S.C. 2220, Hero Vinoth (Mlnor) vs. SQshammal, AIR 2006 SC 2234. 6. In vsew of the submisslon made by the iearned counsei for the appellant on admisslon, the oniy point that requires conslderation is whether the First AppelSate Court was justified in rejectlng the appiication under Order 41 RuJe 27 of C.P.C. 7. it is pertinent to note that T.K.Sen Gupta DW-2, son of the appeiianVdefendant had cleariy admlted in his cross-examination that no document was inexistence which would show the entitlement of tne two brothers to the house at Avanti Vihar, Raipur. The appeilant/defendant DVV-1 belng the wif©of jate S.B.Sen Gupta aiso dld not divulge any such fact either. in her pleading or in her testimony that any Wiii had been executed by iate S.B.Sen Gupta. !f there was such a Wlll in exlstence, the appeilanydefendant being the widow of S.B.Sen Gupta would have certainiy known of It. Jt Is also pertinent to note that the first page of the Wlil is not signed by anyone i.e. S.B. Sen Gupta or any witness. It is thus a hlghly suspldous document. Therefore, considering the admlsslon made by T.K.Sen Gupta D.W-2, the First Appeliate Court was whoily justified in rejecting the appiication under Order 41 Rule 27 o? the CP,C. The case Jaw cited by tne learned counsei for the appeiiant/defendant being cieariy dlstingujshable on facts does not come to the ald of the appeiiant In the facts and circumstances mentioned above. '9S iiii!iSk ^ 8. in this view of the matter, ! am of the considered opinion that no substantlai questlon of iaw arises for determination in this appeai. The appeal is therefore dismlssed. Accordingiy, M.C.P. No.227/2005 for stay also stands dismissed. There shai! be no order as to costs. a>p^sE**Deslunukh Judge Dilip