1 2025:CGHC:47842 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 223 of 1994 1. Dinesh Kumar Dixit (Died And Deleted Through Lrs) As Per Hon'ble Court Order Dated 09-09-2025 1.1 - Anand Dixit S/o Late Dinesh Kumar Dixit Aged About 48 Years R/o In Front Of Dixit Lodge, Sales Tax Consultant, Jawahar Chowk District Durg Chhattisgarh 1.2 - Shanti Dixit W/o Late Dinesh Kumar Dixit Aged About 77 Years R/o In Front Of Dixit Lodge, Sales Tax Consultant, Jawahar Chowk District Durg Chhattisgarh 1.3 - Vandana Dixit D/o Late Dinesh Kumr Dixit Aged About 38 Years R/o In Front Of Dixit Lodge, Sales Tax Consultant, Jawahar Chowk District Durg Chhattisgarh 1.4 - Aradhana Dixit D/o Late Dinesh Kumar Dixit Aged About 40 Years R/o In Front Of Dixit Lodge, Sales Tax Consultant, Jawahar Chowk District Durg Chhattisgarh ... Appellant(s) versus  Gangaprasad Kashyap S/o Dr. Parmanand Kashyap Aged About 52 Years Tempo Owner, R/o Aapapura, Tahsil And Distt. Durg ... Respondent(s) For Appellants : Mr. T.K. Jha, Advocate For Respondent : None, even in two rounds, though served. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 17. 09.2025 1. This second appeal has been preferred by the plaintiff against the judgment and decree passed by the learned 3rd Additional Judge to the District Judge, Durg in Civil Appeal No. 4A of 1990 dated 24.01.1994, whereby appeal preferred by the defendant was partly decreed. SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.09.22 18:12:19 +0530 2 2. This appeal was admitted for hearing vide order dated 25.08.1994 on following substantial question of law :- “Whether the learned lower appellate Court committed an error in not giving a finding on the question of arrears of rent.” 3. The facts of the present case are that the appellant/plaintiff filed a suit for ejectment against respondent in respect of suit house described in the plaint map situated at Aapapura, Ward No. 24, Durg. The plaintiff pleaded that suit house was a two storey house. The ground floor of the house consists of a garage, toilet and bathroom, there was a living room in the first storey along with balconies. It is further pleaded that respondent was a tenant of the suit house, who had agreed to pay rent at the rate of Rs. 35/- per month to the original plaintiff. It is also pleaded that the garage was being used by brother of the appellant, Dr. S.K. Dixit. The garage was locked in the year 1981. However, the respondent without prior permission of the appellant took possession of the garage and began to use bathroom and toilet; he opened a Homeopathic Clinic in the garage. It is further pleaded that as the appellant along with his family were residing in the house of one Govind Prasad Dixit, who was putting pressure to vacate the premises, the plaintiff claimed possession of the house for benefit of his family as he had no other alternative accommodation. It is also pleaded that the respondent failed to pay rent from month of July, 1981 to December, 1981, and therefore, a registered notice for eviction according to the provisions of Sections 12 (1) (a) (e) (o) of M.P. Accommodation Control Act, 1961 dated 22.06.1981 was sent to the respondent. 4. The respondent filed written statement and denied the plaint averments. He pleaded that the house was given on rent by grand father of the appellants 3 along with garage. It was also pleaded that Dr. Dixit was keeping a car and tempo in the garage with the permission of the respondent and when Dr. Dixit got constructed his own garage, the respondent started using toilet and bathroom attached to the garage. It is also pleaded that the appellant has alternative accommodation at Padmnabhpur and claim on bonafide need is not correct. The claim of the appellant, with regard to arrears of rent and misuse of garage were denied. 5. The learned trial Court framed issues; the parties led evidence and the suit was decreed vide judgment and decree dated 12.04.1989. The learned trial Court held that the appellant had bonafide requirement of suit house; the respondent had illegally taken possession of garage and he has not paid arrears of rent. The learned trial Court also granted damages at the rate of Rs. 150/- per month from August, 1981 to December, 1981 to the tune of Rs. 750/-. 6. The respondent preferred first appeal. The learned appellate Court held that tenancy was not properly terminated and the map annexed to the plaint is not correct. The learned appellate Court affirmed findings recorded by the learned trial Court with regard to decree as per Sections 12 (1) (a) of M.P. Accommodation Control Act, 1961(for short “Act, 1961”) and granted six months time to the respondent to vacate the garage but failed to record any findings on issue of arrears of rent under the provisions of Section 12 (1) (a) of the Act, 1961. 7. Mr. T.K. Jha, Advocate appearing for the appellant/plaintiff would submit that the learned trial Court decreed the suit and decided the issue No. 3 with regard to rent of month of July, 1981 and issue of damages Rs. 150/- per month in favour of the plaintiff. He would further submit that the suit 4 was filed by the plaintiff claiming therein arrears of rent and damages. He would also submit that the respondent/defendant had stopped making payment of rent since July, 1981 and there is categorical finding in this regard. He would contend that the learned first appellate Court has affirmed the findings recorded by the learned trial Court with regard to eviction of the respondent according to the provisions of Section 12 (1)(o) of the Act, 1961, but till date premises has not been vacated by the respondent. He would contend that the respondent/defendant failed to press the issue with regard to payment of arrears of rent and damages before the learned appellate Court and impliedly the learned first appellate Court has affirmed the findings recorded by the learned trial Court in this regard. He would contend that the substantial question of law may be answered in favour of the appellant and decree may be passed thereby directing the respondent to make payment of arrears of rent from month of July, 1981 and damages at the rate of Rs. 150/- per month from date of institution of Civil Suit, till the delivery of possession. 8. There is no representation on behalf of respondent/defendant despite service of notice. Power has been filed, but no-one appeared in two round. 9. I have heard Mr. T. K. Jha, Advocate at length and perused the record with utmost circumspection. 10. Admittedly, the appellant/plaintiff is owner of the suit house, the upper storey of the suit house was rented with the respondent, in the ground floor, garage, toilet and bathroom were in exclusive possession of the appellant/plaintiff. The defendant forcibly took possession of that part of property and used it. The petitioner sent a notice through registered post terminating the tenancy, but no heed was paid by the defendant. The 5 learned trial Court recorded findings that the defendant forcibly took possession of garage and same is being used by the defendant. The issue of bonafide requirement of suit house was decided in favour of the plaintiff. The issue of arrears of rent of month of July, 1981 Rs. 35/- and damages Rs. 150 per month were decided in favour of the plaintiff. 11. Though, an appeal was preferred by the respondent before the learned Court below, but the issue with regard to payment of arrears of rent and damages were not pressed by the defendant, and therefore, the learned Court below has not recorded any finding on these issues. As the learned first appellate Court has not disturbed the findings with regard to arrears of rent and damages, thus, impliedly both the issues have been affirmed in the appeal too. 12. Accordingly, the substantial question of law is answered in favour of the plaintiff. The plaintiff shall be entitled for arrears of rent at the rate of Rs. 35/- per month and damages at the rate of Rs. 150/- per month from July, 1981 till possession of the property is handed over by the defendant to the plaintiff. 13. Accordingly, this appeal is hereby allowed. 14. A decree be drawn accordingly. Sd/- (Rakesh Mohan Pandey) Judge $iddhant