HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.13 of 2009 APPELLANT: RESPONDENT: Gopal Rao Versus Mohmmad Akhtar Khokhar th Post for pronouncement of iudamenton 20"' July, 2009 Sd/- T.P. Sharma Judge ^. HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT/: (Defendant) RESPONDENT/: (Plaintiff) Second ARpeal No.13 of 2009 Gopal Rao, S/o Shri Krishna Murthy, aged about 75 years, R/o in front of Dau Mill, Geedam Road, Jagdalpur, Distt. Bastar, Chhattisgarh Versus Mohmmad Akhtar Khokhar, S/o Shri Allanur Khokhar, aged about 45 years, R/o Indira Ward, Jagdalpur, Distt. Bastar (C.G.) {Second appeal under Section 100 ofthe Code of Civil Procedure, 1908} Present: Mr. Sanjay K. Agrawal, counsel for the appellant. Mr. Manoj Paranjpe, counsel for the respondent. Sinale Bench: Hon'ble Wlr. T.P. Sharma, J JUDGMENT (Delivered on 20th July, 2009) 1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the appellate judgment & decree dated 31-12- 2008 passed by the District Judge, Jagdalpur in Civil Appeal No.S-A/ 2008 modifying the decree for eviction passed by the 3 Civil Judge Class-1, Jagdalpur in Civil Suit No.67-A/2008 vide judgment & decree dated 9-5-2008. 2, Judgment & decree are challenged on the ground of substantial question of law that the Court below has erred in passing decree for eviction under Section 12 (1) (e) ofthe Chhattisgarh Accommodation Control Act, 1961 (forshort "theAct') without any pleading, evidence and material, and that the decree for eviction under Section 12 (1) (h) of the Act for rebuilding is also without any documentary or oral evidence. The Court below has also erred in holding that the present appellant has denied the title of the respondent. 3. Brief facts of the case leading to filing of the prgsent second appeal are that Smt. Chandra Bai Parida was the original landlord ofthe suit house situated at Gangamunda Para, Nayapara, Jagdalpur. The present respondent has purchased thesuit house vide sale deed dated 23-9- 2002 from Smt. Chandra Bai Parida and notice dated 12-3-2003 was < f ^ ^' '"'"s served upon the present appellant who was original tenant of Smt. Chandra Bai Parida in the aforesaid suit accommodation. The present appellant has notdeposited the rent dues in accordance with Section 13 (1) of theAct. According to the case of the respondent, the suit house was bona fidely required for reconstruction of residence & office. The present respondent is not in vacant possession of suitable accommodation for his residence & office. Rent @ Rs.250/- per month was agreed between the parties. Suit for eviction was filed by the plaintiff/respondent. 4, In the written statement, the present appellant has contested the claim of the plaintiff/respondent and admitted that original landlord is Smt. Chandra Bai Parida, the present respondent is not landlord and residence is not required bona fidely for reconstruction of house. The accommodation was for residential purpose, therefore, same cannot be vacated for non-residential purpose i.e. construction of office. The appellant has also alleged that he has given Rs.10,000/- advance to Smt. Chandra Bai Parida forwhich he is entitled for adjustment in rent. 5. On the basis of substantial pleadings of the parties, the trial Court framed issues and after affording opportunity of hearing it has decreed the suit on the ground of bona fide need of the plaintiff/respondent & his family, arrears of rent and for reconstruction. The present appellant has assailed the judgment & decree in appeal. Learned appellate Court has dismissed the appeal, affirmed the judgment & decree of the trial Court and confirmed the decree ofeviction on the ground of Sections 12 (1) (e) &(h)oftheAct. 6. I have heard learned counsel for the parties, perused the impugned judgment and records of the Courts below. 7. Learned counsel for the appellant vehemently argued that originally the suit for eviction was filed on the grounds available underSections 12 (1) (a), (c), (f) & (h)of the Act and the suit was decreed under Sections 12 (1) (a), (c), (f) & (h) of the Act, but the appellate Court has modified the judgment & decree of the trial Court and decreed the suit on the ground of Sections 12 (1) (e) & (h) of the Act. The appellate Court was not competent to modify the decree for eviction under Section 12 (1) (e) of the'Actin absence of any pleading and proof, thereby it has committed material irregularity. Learned counsel also submits that the grounds available under Sections 12 (1) (e) & (h) of the Act are althoughself- contradictory, but the respondent is required to prove both the grounds. Learned counsel further submits that the appellant has never denied the titleofthe respondent/plaintiff, but he is competent to denythe derivative title and denial of derivativetitle cannot be termed as denial oftitle ofthe landlord. The accommodation let out for residential purpose cannot be vacated for composite need of residential & non-residential purpose. The Court below has committed illegality in decreeing the suit on the ground available under Section 12(1) (h) of the Act withoutany evidence and finding to that effect is perverse. Learned counsel placed reliance in the matter of Kusum Devi v. IVIohan Lal (dead) by L.Rs. in which it has been held by the Apex Court that where eviction was sought on the grounds of Sections 12 (1) (e) & (g) of the Act i.e. for bona fide need of residential purpose and for carrying out repairs, the plaintiff is required to prove both the grounds on merit. Learned counsel further placed reliance in the matter of Prem Naryan Barchhiha v. Hakimuddin Saifi inwhich it has been held by the Apex Court that clauses (e) & (f) of Section 12 (1) ofthe Act are distinct and independent. tearned counsel atso ptaced reliance in the matter of Hasmat Rai and another v. Raghunath Prasad in which it has been held by the Apex Court that accommodation tenanted for one purpose cannot be evicted on the ground ofanother purpose. In case of eviction of building for rebuilding tandlord must lead and prove that without vacation of premises in dispute rebuilding is not possible. 8. Learned counsel forthe respondent argued that the accommodation was required bona fidely for rebuilding for residential purpose and for opening of office of contractor. The respondent/plaintiff has proved bona fide need by adducing cogent and reliable evidence. Learned counsel placed reliance in the matter of Laxman Rao IVIeshram v. Meena Bai &others in which it has been held by this Court that if it is established that the predominant purpose for which the accommodation ,was sought to be evicted was residential and only a small portion ofthe accommodation is required by the landlord for non-residential use, then decree for eviction can begranted. 1 2009 (II) MPJR(SC) 358 2 1999 (2) J'LJ 260 3AIR1981 SC 1711 4 2008 (3) C.Gl.J. 39 -^ 9. Suit for eviction was filed by the respondent on the grounds available under Seetions 12 (1) (a), (b), (c), (d), (e) & (h) ofthe Act. The present appellant has pleaded that the plaintiff/respondent is not landlord and the premises in question were given on rent by one Smt. Chandra Bai Parida, the accommodation is not required for residential purpose and for reconstruction/rebuilding. The appellant has also pleaded for adjustment of advance of Rs.10,000/- given to Smt. Chandra Bai Parida. The trial Court decreed the suitfor eviction under Sections 12 (1) (a), (c), (f)& (h) of the Act. Appeal was filedon behalf of the present appellanUdefendant againstthe judgment & decree passed by the trial Court and the first appeltate Court has modified the judgment & decree and decreed the suitfor eviction under Sections 12 (1)(e) & (h) ofthe Act. 10. Judgment & decree of the first appellate Court reveals that the first appellate Court has affirmed the judgment & decree of the trial Court and has dismissed the appeal holding that the plaintiff has proved bona fide need of the accommodation. But learned first appellate Court has not specifically decreed the suit on the groundof bona fide requirement of the accommodation for residential purpose. It appears that the first appellate Court has erroneously mentioned Section 12 (1) (e) of the Act in para 13 of its judgment. ll.Ashas been held by the Apex Court in the matter of Kusum Devi (supra), grounds available under Sections 12 (1) (e) & (g) of the Act are mutually exclusive, but not destructive of each other and the landlord is required to prove both the grounds. While dealing with the question of eviction on the ground of bona fide need for residential and non- residential purposes, the Apex Court has held in the cases of Hasmat Rai*(supra) & Prem Naryan (supra) that accommodation tenanted for one purpose cannot be evicted for another purpose. 12. In the present case, concurrent findingsof both the Ct)urts below reveal that the present respondent has proved bona fide need for residential purpose including running of hig own office and on the ground of disclaimer of title and for rebuitding. The present respondent has pleaded'in para 7 of his plaint that the plaintiff wants toconstruct house for his residence & office and for the said purpose vacant possession of the accommodafion is necessary. Averment of para 7 of the plaint was denied by the appellanVdefendant by pleading that "it is denied that the "-'ia, .e-SSSS I, 1 1& ". JJ "^ '?'®?':">e: 't:5 ^- So.na plaintiff requires the accommodation bona fidely for his need andfor rebuilding after dismantling the house". The appellanVdefendant himself has not pleaded fhat in absence of any specific pleading to the effect that without eviction ofttie house rebuilding wound not be possibte. 13. In the matter of Amro Devi v. Ajay Kumar Sood it has been held by the Himachal Pradesh High Court thatthe plaintiff is required to prove thatrebuilding is not possible without vacation of the premises in dispute. l4.Para 7 of the plaint reveals that the plaintiff has pleaded that vacant possession of the suit house is necessary for rebuilding. Specific format ofpleading is not provided in the Act, 1961. Parties arerequired to make substantial pleadings and the plaintiff has substantially pleaded the requirement of building under Section 12 (1) (h) of theAct. Both the Courts below have decreed the suit substantially under Sections12 (1) (c), (f) & (h) of the Act {the first appellate Court erroneously mentioned as Section 12 (1) (e)}. Evidence available on recordand the evidence adduced on behalf of the parties are sufficient for deciding the issues relating to the aforesaid grounds. Learned Court below has not committed any illegality in deciding the substantial issue in favour of the respondenVplaintiff. 1 do not find any substantial question of law for admitting the second appeal. is.Consequently, the appeal is liable to be dismissed and it is hereby dismissed. The appellant shall bear his cost and cost of the respondent of the suit as also of the appeal. Advocate fees as per schedule. Sd/- T.P. Sharma Judge AIR 1994 Himachal Pradesh 81 ^-""?=^B- -a » SpS^S