< IN THE HIGH COURT OF JUDUCATURE QF CHHATTISGARH ^ APPELLANT DEFENDANT AT BILASPUR S.A. No. .......C.A../2003 im@se , 1. SHIVNANDAN GOSAI AGED ABOUT 65 YEARS S/0 CHANNU GOSAI, R/0 JAI STAMBH CHOWK, MASJID PARA., THANA 85 TAHSIL AMBIKAPUR, DISTT. SURGUJA (C.G.) VERSUS ' 1. ^ MANGAL PRASAD GUPTA AGED ABOUT 88 YEARS, S/0 LATE RAJKUMAR GUPTA ^ 2. KU. SHANTI GUPTA D/0 HARIPRASAD GUPTA AGED ABOUT 35 YEARS BOTH R/0 JAI STAMBH CHOWK AMBIKAPUR, P.S. 85 TAHSIL AMBIKAPUR, DISTT. SURGUJA (C.G.) /' RESPONDENTS PLAINTIFFS ^r^^/y ...y ^y <y APPEAL UNDER SECTION 100 OF THE CQDE OF CIVIL PROCEDURE 1 HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second Appeal No.608 of 2003 Shivnandan Gosai versus Mangal Prasad Gupta and another JUDGMENT Postforfj&-4-2010 Sd/- Prashant Kumar Mishra Judge E^-- - ^—^-- f^a^..:.,l 1'^^ '^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second Appeal No.608 of 2003 Appellant Respondents versys Shivnandan Gosai Mangal Prasad Gupta and another Present: Shri Manoj Paranjpe, counsel for the appellant. Shri Sushil Dubey, counsel for the respondents. r^ -^ Second Appeal under Section 100 ofthe Code of.Civil Procedure, 1908 JUDGMENT (Delivered on _[^April, 2010) The instant second appeal under Section 100 of the Code of Civil Procedure has been preferred by the defendant/tenant challenging the decree of eviction passedagainst him by both the Courts below under Section 12(1)(f) of the Chhattisgarh Accommodation ControlAct, 1961(henceforth 'theAct, 1961'). 2. The Plaintiffs/respondents have filed the present suit claiming decree of eviction against the appellanVdefendant from the suit shop on the ground that plaintiff No.l/respondent No.1 is the owner and landlord ofthesuit shop and he has executed a registered Will dated 2-4-1998 in favour of plaintiff No.2/respondent No.2, whois the daughter of his younger brother Hari Prasad Gupta and that the premises is required bona fide for opening of a shop to satisfy their non-residential need and that they have no other reasonably suitable ./^ ^\ 'K ^ - .^C---. i 8 ls/Ar:"r'1' I f^&^" S& ^^ ^ '< '^fe.. accommodation of their own in the Ambikapur town for satisfying their need. 3. It was stated in the plaint that both the plaintiffs are willing to start the business of general stores (fancy stores) because plaintiff No.2 is presently engaged in the business of fruits and fruit juice in a tenanted premises along with her younger brother Manoj Gupta but is not having sufficient income from the said business and that plaintiff No.1 is unable to perform agricultural work, therefdre, both the plaintiffs shall jointly open a general stores in partnership. It was also pleaded that they are in a position to open a general stores for which the suit shop is suitably located. 4. The case of the defendanVappellant was that the suit shop was let out to him by late Laxmidevi, the wife of plaintiff No.1 impliedly suggesting that plaintiff No.1 is not the owner of the suit premises. While admitting the fact that plaintiff No.2 is' the daughter of the younger brother of plaintiff No.1, it was stated in the written statement that as long as plaintiff No.1 is alive, the Will executed by him in favour of plaintiff No.2 does not create any title in her favour. It was also stated that plaintiff has obtained possession of a shop in another eviction decree and, thus, his need has been satisfied. With regard to the plaihtiffs' pleading that plaintiff No.2 is treated by plaintiff No.1 like her daughter (Manas Putri), the defendant has submitted that law does not recognise such relation and, therefore, plaintiff No.2 has been unnecessarily joined. The defendant denied about the suitability of the suit premises for the projected need and stated that the projected need <.an be satisfied from the premises where plaintiff No.2 is presently ^;.. <";" 11' '^^- carrying on the business of fruits and fruit juice. It was also stated that plaintiff No.1 is earning handsomely from the agricultural operations and, thus, the need is artificial and is not bona fide. 5. The trial Court, by its judgment and decree dated 28-2-2003, decreed the suit after holding that the plaintiff No.1 is the owner and landlord of the suit premises and he bona fidely needs the premises to start the business of general goods/general stores and for that he has no other reasonably suitable accommodation in the town of Ambikapur. 6. The trial Court, while deciding issue No.2 regarding the bona fide need, has held that from the evidence on record it appears that plaintiff No.1 needs the premises for the business of plaintiff No.2 and that by virtue of the registered Will dated 2-4-1998 it is found that plaintiff No.1 is holding the property for the benefit of plaintiff No.2 and as such a decree for eviction under Section 12(1)(f) of the Act, 1961 has been made out by the plaintiffs. 7. The first appellate Court has affirmed the findings recorded by the trial Court and has dismissed the appeal preferred by the defendanVappellanVtenant. 8. The present second appeal has been admitted by this CQurt on the following substantial questions of law: "(1) Whether under the facts and circumstances of the case and material on record, the suit of the respondent-landlord could be decreed for non- residential requirement when the need was not for —-theson or unmarried daughter or for the person for whose benefit the accommodation was held, but in ^:' L^ ^ fact was for the respondent No.2 who is niece ignoring the judgment rendered by the High Court in 2001(1) CGLJ 476 (Gurucharan Singh -v- Prembai Shrivastava)? (2) Whether respondent No.2- Ku. Shanti Gupta in whose favour the Vasiyatnama dated 2-4-1998 alleged to have been executed'by the respondent No. 1- Mangal Prasad Gupta, gets any right or title when the executor of Vasiyatnama is alive and such person can be saidto be a person for whose benefit • the accommodation canbe gqt vacated?, ., (3) Whether the niece i.e. respondent No.2- Ku. Shanti Gupta is a person covered under Section 12(1)(f) of the Accommodation Control Act and for her need accommodation can be got vacated?" 9. Attacking the impugned decree, learned counsel for the appellant has urged that in the teeth of findings recorded by the trial Court and affirmed by the first appellate Court that the bona fide need is that of plaintiff No.2 and not of plaintiff No.1, the ground under Section 12(1 )(f) of the Act, 1961 is not made out inasmuch as niece is not a person covered under Section 12(1)(f) of the Act, 1961 and that she does not come within the meaning of the term "for whose benefit the accommodation is held". 10. Per contra, learned counsel for the respondents has argued that no substantial question of law arises for determination in this appeal, that both the Courts below have cbncurrerrtly held that the suit premises is needed bona fide by the plaintiffs to carry on their business pf general stores for which they have no other reasonably suitable accommodation in the town of Ambikapur and that plaintiff No.2 being ^:^^-. ^ ^y^ i y- ]i 5 the beneficiary of the registered Will executed in her favour by plaintiff No.1 would be covered within the term "for vi//?ose benefit the accommodation is helcf', therefore, the suit has rightly been decreed by both the Courts below. 11. All the three questions of law are interlinked and overlapping, therefore, they shall be dealtwith analogously. 12. In order to answer the questions of law and adjudicate the grounds of challenge, it would be necessary for this Court to refer to the scheme provided under the provisions of the Act, 1961 for eviction of a tenant. Section 12 of the Act, 1961 starts with a non-obstante clause and thereafter various grounds available ta a landlord for evicting a tenant have been enumerated uhder clauses (a) to (p). Thus, taking into consideration the need of the landlord or the defaults/lapses of the tenant, a suit for eviction of the tenant can be filed on one or more of the grounds under clauses (a) to (p). Beyond these grounds, the law does not permit the eviction of a tenant on any other ground. In the present case, the projected need of the plaintiffs is a non-residential need under clause (f), whereas the residential need of a landlord is covered under clause (e). At this stage, it would be profitable to quote clauses (e) and (f) of sub-section (1) of Section 12 ofthe Act, 1961 ;which are as under: "S.'[2:Restnction on eviction of tenants.— (1) Notwithstanding anything to the ,cpntrary contained in any other lawor contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation —\excepton one or more of the following grounds only, namely:- ^ ^ xxxxx xxxxx xxxxx (e) that the accommodation let for residential purposes /"s required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residentia'l accommodation ofhis own in his occupation in the city or town concerned; (f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting.his business or that ofany ofhis major sons or unmarried daughters ifhe /s the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential.accommodation of his own in his occupation in the city or town concerned; xxxxx xxxxx xxxxx." 13. In GurucharanSinghys.,Preniab^ii,Shriyastaya,200'\ (1) CGLJ 476, this Court has observed as under: "12. For proper appreciation of the Clause 12(1)(e), it would be useful to refer to Section 2(e) of the Act. Section 12(1)(e) of the Act applies .to the accommodation, which is let for residential purposes. It further says that if such residential accommodation is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he (landlord) is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own ^njjis occupation in the city or town concerned. The 'landlord can seek eviction of the tenant from the residential ? ; ;/ ; ;^.A.?.; • :: 1 ^i'^ ^^^^" ^ accommodation, if the same is bona fide needed by the landlord to satisfy his need. The term 'member of his family' has been defined under Section 2(e) of the Act. Section 2(e) ofthe Act reads as under: "Section 2(e): "member of the family" in case of any person means the spouse, son, unmarried daughter, father, grandfather, mother, grandmother, brother, unmarried sister, paternal uncle, paternal uncle's wife or widow, or brother's son or unmarhed daughter living jointly with or any other relation dependent on him'" 13. Section 12(1)(f) of the Act' relates to accommodations which have been let out for non- residential purposes. From the non-residential accommodations, the tenant can be evicted, if the suit premises are needed bona fide by the landlord for the purposesof continuing or starting hisbusiness: T/?e tenant can be evicted from the non-residential accommodation if the need is of his major sons or of unmarried daughters. The landlord in such a case would be required to prove that h6 is the owner of the premises. He will be required to prove further that he or the'persdn, for whose benefit the accommodation is held, if the need is for such person, has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. Projection of the bona fide need in itself would not be sufficient, but the lahdlord wduld be required to prove that he is the owner of the premises, he or the person for whose benefit the accommodation is held do not have any other reasonably suitable accommodation of his own in his occupation in the city or town concerned to meet orsatisfythe needofthe landlord. \^k A comparison of Clause (e) and (f) would make it clear that these two Clauses use different phraseology; ; KiiD/.f'J ' \/{/( )'.^^ : ^" ^^ ^), .1 s while under Clause (e) of Section 12(1) of the Act the need of family member is considered to be the need of landlord; but in view of the phraseology of Clause (f) the need of family member cannot be considered to be the need of landlord." 14. Plaintiff No.2 herein is the unmarried daughter of the brother of plaintiff No.1, i.e., she is niece of plaintiff No.1, thus, as per Section 2(e) of the Act, 1961, she is a 'member of the family', however, the eviction is not sought under clause (e) but the eviction in the present case is sought under clause (f). Under the said clause (f) of sub- section (1) of Section 12 ofthe Act, 1961, the need ofthe following categories of persons can be a ground for eviction: (i) need of the landlord himself, (ii) need of any of his major sons pr unmarried daughters, and (Jii) need of any person for whose benefit the accommodation is held. ^z- 15. Pfaintiff No.1 would be covered under ground No.(i) above, however, as argued by learnedcounsel for^the appellant, the trial Court as well as the appellate Court has found that it is the need of plaintiff No.2, which has been found to be proved and not of plaintiff No.1. The trial Court and the first appellate Court have held that plaintiff No.2 would be a person for whose benefit the accommodation is held because plaintiff No.1 has executed a registered Will in her favour which shall be operative immediately after the death of plaintiff No.1 and as such during his lifetime he is holdjng the prpperty fpr the benefit '^ ^ ^. :. ' ^. 7 _.' '. ;. ..r" • df plaintiff No.2, i.e., the beneficiary under the Will. w,^'''^/^ I 3 16. This Court is, therefore, required to examine whether in the facts and circumstances of the case, plaintiff No.2 will be a person "for whose benefit the accommodation is held by plaintiffNo.1". 17 In the case of Purushottam vs. Eknathrao, 1980 MPRCJ 107, the plaintiff was the Mahant or Shebait of the temple. The property having been dedicated to the idol of Shri Ram Chandraji, the plaintiff sued the tenant on the ground of the premises needing substantial aiteration and that the plaintiff himself wants to occupy the suit shop for the purpose of starting his business. The suit was defended by the tenant therein that the plaintiff not being the owner of the suit accommodation, he cannot got him evicted for his own need and since he is holding the suit accommodation for the benefit of the idol, he could claim eviction only on the ground of need of the trusVidol. In this background, the Single Bench of High Court of Madhya Pradesh, in Purushottam vs. Eknathrao (supra), has held in paragraphs 11, 12 and 15thus: "11. As regards the finding arrived bythe Courts below holding that the landlord was entitled to a decree for eviction even on grounds as contemplated by clause (f), /'.e. bona fide need for his business, it would suffice to observe that the said finding does suffer with an error of law, as discussed hereinafter. According tothe scheme of Sub-Section (1) of S. 12 ofthe Act, asindicated by various Sub-clauses indicating specific grounds for eviction, the legislature while providing protection to the tenant had relaxed the bar on the hght of the landlord to evict his tenant in such cases where the landlord being the owner, requires, the suit accommodation either for the purposes of .^ 1/7/s residence or for the purposes of his family or for the :^^ ^^ ":i^ 10 purposes ofhis own business and to a limited extent for the business of certain specified relatives, like sons and unmarried daughters, provided he had no other reasonably suitable accommodation of his own in the township. The perusal of the language used in clause (f) as reproduced below, makes it clear that while specifying bona fide need, the legislature contemplated three types of cases: viz. (i) a caseof bona fide need ofthe landlord's himself; (ii) a case of bona fide need of the landlord's sons and unmarried daughters, provided the landlord was the owner of the accommodation. The third type of need disclosed relates to a case where the landlord holds the accommodation for the benefit of others and the bona fide need is of that person for whose benefit the accommodation is held by the landlord. "(f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that ofany ofhis majorsons orunmarried daughters ifhe /"s the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation ofhis own in his occupation in the cityortown concerned." 12. The error of law pointed out by the learned counsel for the appellant was that since the present plaintiff though being a landlord was not the owner of the suit accommodation andthe same wasactually held byhim for the benefit of the idol to whom the property had been dedicated, he cannot seek eviction unless he came with a case of need of the idol, i.e. for the purposes of the temple itself. In my opinion the contention put forth has sufficient force and deserves tobe accepted: In the present case, as '\isjev'ident from the deed of gift by which the property had been dedicated to the idol, the plaintiff appears to hold the \\ suit property for the benefit of the idol. In that capacity no doubt, he had full powers of managing the property, inducting tenants, recovehng rent and take action in accordance with law for their removal. The document further discloses that there is a specific prohibition restraining the plaintiff from utilising or appropriating the property or its usufruct for his own purposes. Similarly, he had been also prohibited from making any alienation ofthe same. Thus, it is apparently a case covered by the third category as disclosed 'in clause (f), i.e., landlord holding the accommodation for the benefit of other. Consequently, in such a case, a decree foreviction could be claimed only by showing that the need of that person, 'i.e., in the present case, of the idol or the temple, for doing any business or non-residential activity. 15. Being faced with this situation, an effect was made on behalf of the respondent-plaintiff to show that since in the present case the plaintiff was not only a manager but was also Q Mahant or Shebait, he himselfcouldbe treated as the owner of the property despite the same having been dedicated to the idol. According to the respondent, Mahantship or Shebaitship does carry an element of ownership and is always in the nature of a proprietary interest.It may be true. But the proprietary nature of interest and the right ofownership become available for the office ofa Mahant or Shebait and despite that, the property remains to be ofthe idol, or Mutt. No doubt, the status ofa Mahant or Shebait is far superior and distinct than that of a Poojari or a mere manager who does hot carry any proprietary interest. But so far as the question of entitlement to a decree for eviction is concerned, the language used 'm clause (f) is very clear. As regards the property dedicated to a Mutt or idol, the Mahant or Shebait \c^>claim eviction by showingthat the need of continuing or starting the business was of the idol or the Mutt. But 'it |1!/V\ p9J9l8j69j e peinoexo SBLI ©LijnoAe^QSOLiM ui pue eoeiu SILJ si OLJM '3-ON J^UUjBld p p89U 8LJI JOJ UOIPIA9 JO 99J39P B 0} p8|^U9 Sj ^'O^ ^uie|d j8L|i8qM 0} se \,QQ\. 'py 941 P (j)(l,)zi. uojpQg ui peuieiuoo SUOISIAOjd 9^ M8JA Uj 6U!d99>| eajoap pue lueujBpnf peuSndLUi sq^ jo Ai!|e6e|,eqi euiLuexe pi pejinbej 'ejopje^ 'si ijnoQ siqi •61, •|euy OLUOoeq 'sn^ 'seq 6uipuy PJBS eqi •|eedde SIL|I ui siueujnBje 6uunp |,'ON ^!iuie|d p pseu QU^ o} pjeBej I|I!M sBuipuy pjes e^ CuiBueiie^o Aq jo uoipefqo-ssojo 6ui|y Aq pnoo Sjqi Qjo^sq JQ ijnoo 9ie||9dde isjy eqi Qjo^eq jeyije 'ljnoQ 9ie||9dde }sjy aqi Aq pQLUJi^e pue ijnoo IBUI eqi Aq pepjooej s6uipuy 9S9L|i p8Bue||eqo iou 9AeL| s^uieid QL|I -iU9Lu6pnf eqi p 6£PUB zz sqdej6ejed ui^jnoQ 9ie||8dde isjjj eqi Aq peLujij^e ueeq SBLJ 6uipuy SIL|I •I.-ON ^ujejd p }B{J^ }ou pue Z-ON J^iiuieid p ie^ si peeu eqi 1641 6ujpuy Q^} pepjooej seq 3£^dejSejed qijM peej 91. qdej6ejed uj ijnoo |eui eqi A||BJ9A9S jo Aiiujof jeqiie s^uje|d 9L|i p peeu eqi 0} pjeBej qtiM 83U9PJA9 8L|iBujiejo8jdde 9|!q/v\ 'j8A8MOL| 'iuieid eqi ui peeu luiofjioqi pQpefojd OABLJ s^4uie|d e^ 'eseo luesejd eqi u| -91. ^QLUeS QLf} ssQjd ^ou p!p uo jefei '}nq 'e/cfu/e^ a^ ^o Qq ////M sseuisnq e^ pue doqs e^ }U9iiipuaLue pasodojd QL{} o} Buipjoooe }eq} BUIMOLIS Aq fuieid ©^ui fUQLUpuaiue Qiqe}ms BU^BLU jo^ uoi^eoiidde ue QAOLU pip ^uieid OLI^ 'AjBiDUQuaq Q^ ;o peeu e^./o s/seg a^ uo uoipiAejo/ punojB e }no Bui^eiu jo^ uoisiAOjd Qiqefins e Qpeuu sei^ pue AouQGui^uoo ^o QdA} s/^ pQ}eidLUQ}uoo Apeajie seif ejnfeisiBei Q^ 'Gu^eeds Aiien}3v JQUMO efeAud e ayfif }sn[ SBM }ieqQLis Jo fueL/e^ e }ew pioq 0} ua^ pue ^n^ jo iopi Q^ o} pQ^eoipQp ueQq seLi A]j9dojd ©^}eqf pe/ ©^a/ou5/ o^ eiqissod eq }ou ////M ,^^^^^. /^ 'C.dP^IS vy'Jf I.. ^^^ '^^s.^ss^' bequeathing the suit property in her favour. As already reproduced v and examined, eviction under Section 12(1)(f) ofthe Act, 1961 can be sought for the bona fide need of the landlord himself or for his major sons or unmarried daughters or for any person for whose benefit the accommodation is held. It has already been found that the need of plaintiff No.1 has not been found to be proved by the Courts below. Plaintiff No.1 has not projected need of his major sons or unmarried daughters. Plaintiff No.2, whose bona fide need has been found to be proved is though unmarried but is not the daughter of plaintiff No.1, therefore, the only clause or part in which plaintiff No.1 can succeed to a decree for eviction and as found by the Courts below that plaintiff No.2 comes within the meaning of the term "for any person for whose benefit the accommodation is held". 20. The phrase "for whose benefit the accommodation is held" has not been defined in the Act, 1961. The crucial word in this part of clause (f) of sub-section (1) of Section 12 of the Act, 1961 is the word "benefit'. Since neither the phrase nor the word benefit has been defined in the Act, 1961, therefore, it is permissible to refer to dictionary meaning to find out the general sense in which the word is understood in common parlance or its legal impact or meaning (See Principles of Statutory Interpretation by Justice G.P.Singh, 11th Edition, Page 338). The words 'benefit', 'beneficiary' and 'beneficial interest' have been defined in the Black's Law Dictionary, Seventh Edition, 1999 in the following manner: "Benefit: n. 1. Advantage; privilege <the benefit of owning a car>. 2. Profit or gain <a benefit \ received from the sale>. ..^:-. ^^1^11 <m^y ^ . ^m^ (^ Beneficiarv: n. A person who is designated to benefit from an appointment, disposition, or assignment (as in a will, insurance policy, etc.); one designated to receive something as a result of a legal arrangement or instrument. — beneficiary, adj. Beneficial Interest: A right or expectancy in something (such as a trust or an estate), as opposed to legal title to that thing. For example, a person with a beneficial interest