1 2025:CGHC:20334 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 163 of 2024 1 - Ikbal Hussain Quiraishi S/o Rasdeep Hussain Quraishi Aged About 58 Years R/o Naiyyer Engineering Works, Bastar Road, Dhamtari, Tahsil And Dist. Dhamtari, C.G. ... Appellant versus 1 - Jugga Devi (Dead) Through Lrs Nil 1.1 - Lucky Sanklecha Son Of Hemchand Sanklecha Aged About 26 Years Resident Of Sadar Bazar, Dhamtari, Tahsil And Dist. Dhamtari, C.G. 1.2 - Bhaiyoo @ Darshan Sanklecha Son Of Praveen Kumar Sankelcha Aged About 12 Years Resident Of Sadar Bazar, Dhamtari, Tahsil And Dist. Dhamtari, C.G. Through Legal Gardian Res No. 4 1.3 - Hemchand Sanklecha Son Of Late Ranulal Sanklecha Aged About 60 Years Resident Of Amapara Ward, Dhamtari, Tahsil And Dist. Dhamtari, C.G. 1.4 - Praveen Kumar Sanklecha Son Of Late Ranulal Sanklecha Aged About 48 Years Resident Of Sadar Bazar, Dhamtari, Tahsil And Dist. Dhamtari, C.G. 1.5 - Lalit Kumar Sanklecha Son Of Late Ranulal Sanklecha Aged About 50 Years Resident Of Ganjpara, Balod, Tahsil And Dist. Balod, C.G. ... Respondents (Cause title taken from Case Information System) For Appellant : Mrs. Swati Agrawal, Adv. For Respondents No.1.1 to 1.4 : Mr. Shobhit Koshta, Adv. (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 02/05/2025 1. Heard. 2. This second appeal has been preferred under Section 100 of the Code of RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.05.14 10:38:55 +0530 2 Civil Procedure (for short “CPC”) by appellant challenging the judgment and decree dated 30.01.2024 (Annexure-A) passed by the Upper District Judge, Dhamtari, District Dhamtari (C.G.) in Civil Appeal No.27A/2018 upholding the judgment and decree dated 23.11.2017 (Annexure-B) passed by First Civil Judge, Class-I, Dhamtari (C.G.) in Civil Suit No.7A/2016, whereby learned trial Court allowed the civil suit filed by original respondent No.1/plaintiff namely; Jugga Devi and granted decree in her favour, entitling her to get vacant possession of the suit property (shops) and further authorising her to get arrears of rent. (For the sake of convenience, parties would be referred to as per their status shown before the trial Court.) 3. Facts of the case, in nutshell as projected by original plaintiff- Jugga Devi are that, she was owner of the disputed open land, which she sold to Nemnath Nanda. Pertaining to that land, Jugga Devi subsequently filed Civil Suit No.84A/1985 against Nemnath Nanda for declaration, possession and mesne profit before Civil Judge, Class-I, Dhamtari, District Raipur (now District Dhamtari). During pendency of aforesaid civil suit, Nemnath Nanda allegedly constructed shops (disputed shops) on aforesaid land and he rented those shops to 14 persons. That civil suit was dismissed on 07.08.1987. First Appeal No.28A/87 preferred by original plaintiff- Jugga Devi was allowed in her favour by 4th Additional District Judge, Raipur vide judgment and decree dated 31.07.1990. Second Appeal No.428/1990 was dismissed by the High Court of Madhya Pradesh at Jabalpur vide judgment dated 08.01.1991. SLP preferred by Nemnath Nanda bearing No.6070/1991 was also dismissed by Hon’ble Apex Court vide order dated 15.04.1991. Original plaintiff- Jugga Devi initiated execution proceeding to get possession of suit property bearing 3 Case No.84A/1985, in which, vide order dated 26.08.1991, she was granted symbolic possession by the Executing Court on 27.08.1991. 3.1 After obtaining symbolic possession, original plaintiff-Jugga Devi filed Civil Suit No.7A/2016 in the Court of First Civil Judge, Class-I, Dhamtari for eviction and arrears of rent against defendant/appellant, which was allowed by trial Court and granted decree to the plaintiff entitling her to get arrears of rent as well as vacant possession of the suit property. First Appeal No.27A/2018 was dismissed by the Upper District Judge, Dhamtari vide judgment and decree dated 30.01.2024. Being aggrieved by the same, defendant/appellant (tenant) has preferred this second appeal. 4. Learned counsel for the appellant would submit that the appellant was tenant of Nemnath Nanda and after his death, he is tenant of Ravindra Kumar Nanda, who is son of Nemnath Nanda. She would further submit that during lifetime of Nemnath Nanda, the appellant had paid rent to him and after his death, he is paying rent to Ravindra Kumar Nanda. She further submitted that in eviction proceeding, appellant/defendant was not a party and only symbolic possession was given to the original plaintiff. Also there is no landlord-tenant relation between plaintiff and defendant, therefore she is not entitled to get vacant possession of the suit property, as such, she is also not entitled to get arrears of rent as they have already paid rent of the disputed shops to Nemnath Nanda and Ravindra Kumar Nanda till today, hence, plaintiff is not entitled to get any relief. But, learned trial Court and First Appellate Court without considering aforesaid facts, have allowed the civil suit, therefore she prays that this appeal may be admitted for hearing on proposed substantial question of law. To substantiate her above contention, she placed reliance in the case of 4 Ramji Srivastava vs. State of U.P. reported in (2015) 0 Supreme (All) 3384. 5. Per contra, learned counsel appearing for respondents/LRs of original plaintiff would submit that uptill Hon’ble Apex Court, title of the plaintiff has been upheld over the suit property and in execution proceeding, symbolic possession of suit property has also been given by the Court to the plaintiff, which is valid possession as contemplated under Order 21 Rule 36 of the CPC. He would further submit that by virtue of decree upheld up to the Apex Court in respect of ownership of the suit property in favour of plaintiff, she has valid title, therefore, appellant/defendant being tenant, cannot deny her title over the suit property. Further, some of the tenants of the suit property had made an application under Section 31 of the Chhattisgarh Accommodation Control Act, 1961 (henceforth referred to as “The Act, 1961”) before the Rent Controlling Authority, stating inter alia that Nemnath Nanda and Jugga Devi both are claiming themselves to be owner of the suit land, as such, they be permitted to deposit the rent in the Court. That dispute travelled up to the High Court and the High Court in three second appeals filed by Smt. Jugga Devi bearing Nos.329/2005, 330/2005 and 331/2005 has held that since symbolic possession of the suit property has been given to the decree holder Jugga Devi, therefore, she is entitled to receive rent, hence, now tenants cannot be permitted to be agitated the same dispute. He further submitted that questions of law proposed by appellant are not related to landlord tenant dispute, rather, those questions are related to the dispute between Jugga Devi and Nemnath Nanda, which has already been decided uptill the Apex Court, hence he prays that this second appeal is liable to be rejected. 6. I have heard learned counsel for the parties and perused the material 5 available on record. 7. Undisputedly, original plaintiff/respondent No.1 herein has been granted title by the First Appellate Court over the suit property, which has been upheld by the High Court and Hon’ble Supreme Court also, therefore it cannot be denied that plaintiff is owner of the suit property. It is also not in dispute that appellant/defendant is tenant over the suit property (shop), as such, there is landlord-tenant relation between original plaintiff and defendant (appellant herein). 8. Eviction has been sought for by the plaintiff on the ground of bona fide need, which has been accepted by the trial Court and upheld by the First Appellate Court. This finding has neither been challenged by appellant/defendant nor any question of law has been proposed on this count. 9. Since there is landlord-tenant relation between the parties and title over the suit property of plaintiff has been upheld upto the Apex Court, therefore, appellant/defendant cannot deny ownership of the plaintiff over the suit property (shop). Appellant has also not produced any document to prove the fact that he had paid rent of the suit property/shop to Nemnath Nanda or his son, as such, finding recorded by the trial Court and upheld by the First Appellate Court that there is arrears of rent against appellant/defendant is also found proved is also as per the evidence available on record. 10. Though in execution proceeding under Order 21 Rule 36 of the CPC, the symbolic possession is delivered by the officer of the Court and proclamation is made to the occupants of the property that the plaintiff has recovered it from Nemnath Nanda and this is the only way in which the decree of the Court awarding possession to the plaintiff, can be enforced 6 and as in contemplation of law, both parties must be considered as being present at the time when delivery is made. In the aforesaid circumstances, delivery of possession of the suit property was given as against the judgment debtor which must be deemed equivalent to actual possession as has been held in the matter of Gambhira vs. Smt. Pajju Baja reported in 1987 JLJ 670. Therefore, appellant / defendant being tenant has no right to raise objection with regard to possession given to the original plaintiff / respondent No.1 herein, hence contention raised by learned counsel for the appellant in this regard is misconceived. 11. In the case of Kanaklata Das and Ors. vs. Naba Kumar Das and Ors. reported in (2018) 2 SCC 352, Hon’ble Supreme Court has held in para 11 as under:- “11. There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question arose in this appeal. These principles are mentioned infra. 11.1 First, in an eviction suit filed by the plaintiff (Landlord) against the defendant(Tenant) under the State Rent Act, the landlord and tenant are the only necessary parties. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant. 11.2 Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff-landlord has sought defendant’s- tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds. 11.3 Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves 7 the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. [See Dr. Ranbir Singh vs. Asharfi Lal, (1995) 6 SCC 580]. 11.4 Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. [See Ruma Chakraborty vs. Sudha Rani Banerjee & Anr., (2005) 8 SCC 140] 11.5 Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. [See Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar & Anr., [AIR 1963 786] 11.6 Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. [See Kasthuri Radhakrishnan & Ors. vs. M. Chinniyan & Anr., (2016) 3 SCC 296]” 8 12. In instant case, since title of original plaintiff over the suit property has been upheld upto the Hon’ble Apex Court and, therefore, by virtue of such decree, symbolic possession has also been granted to the original plaintiff, as such, appellant/defendant is seized to raise objection that he is not tenant of original plaintiff /respondent herein. Having considered aforesaid observation made by the Apex Court, in that view of matter, appellant cannot raise objection also that, he was not a party in execution proceeding. 13. The respondents have filed copy of the judgment (common) dated 05.01.2006 passed by this High Court in Second Appeal Nos.329/2005, 330/2005 and 331/2005 and in all these cases Smt. Jugga Devi vs. Smt. Satyavati & Ors. were parties. Perusal of aforesaid judgment shows that some of the tenants of the suit property filed application under Section 31 of the Act, 1961 seeking permission of the Rent Controlling Authority that, they had bona fide doubt regarding the present entitlement to receive rent of the suit property (suit accommodation) as Lala Nemnath Nanda and Jugga Devi, both are claiming the suit land to be their ownership, therefore, they sought for permission to deposit the rent in the Court. That application was disposed of by Rent Controlling Authority vide order dated 28.03.1992 passed in Case No.1-A/90 and other connected cases holding therein that only symbolic possession of the suit property has been given to Jugga Devi in execution of the decree in her favour, however, actual possession has not been given, therefore she cannot be considered to be owner of the tenanted premises. Miscellaneous appeals preferred before the Additional District Judge, Dhamtari (C.G.) were also dismissed thereafter, Jugga Devi filed aforesaid three appeals before the High Court, in which, the co-ordinate bench allowed the appeals and observed in para 9 14 & 17 as under:- “14. ………...It is true that the tenants were let out the building and not the land and the decree in favour of the appellant was only with respect to vacant possession of the land. However, the judgment debtor was directed to hand over the vacant possession of the suit land after removing structure erected thereon and in execution of the above decree the judgment debtor has given symbolic possession of the suit land to the decree holder and thus the decree stands satisfied and therefore now it is not open to the judgment debtor to re- agitate that though in execution of the decree symbolic possession of the suit land has been given to the decree holder but structure is very much there and since the structures are there, he still continues to be the owner of the said structure and thus entitled to receive rent. 15. XXX XXX XXX 16. XXX XXX XXX 17. In view of the aforesaid discussion, the appeal is allowed, Orders passed by both the Courts below are set aside. It is held that that appellant is entitled to receive rent from the tenants and the respondent No.2 in all the above cases. However, there shall be no order as to costs.” 14. Reverting to the facts of the instant case, as has been discussed here-in-above that, original plaintiff -Jugga Devi has been granted title over the suit property and she has also been granted symbolic possession by the Executing Court in compliance of the decree passed in her favour. This Court in Second Appeal No.329/2005 and other connected cases, vide judgment and decree dated 05.01.2006 has already held that the original plaintiff -Jugga Devi is entitled to receive rent from the tenants, therefore, appellant/defendant is seized to raise his objection that he is not a tenant of original plaintiff/respondent herein. 10 15. In view of forgoing discussion and particularly considering the landlord-tenant relation between plaintiff and defendant and further plaintiff has also proved his bona fide need of the suit property, I do not find any substantial question of law to be involved in instant second appeal. It is also apt to be noted here that questions of law proposed by appellant/defendant are not much related between landlord & tenant, rather, it was related between original plaintiff -Jugga Devi and Nemnath Nanda/ their LRs. 16. Thus, having considered the concurrent finding recorded by both the Courts below, which is finding of facts and does not suffer from any perversity and illegality, as such, I do not find any substantial question of law to be involved in the instant case, hence this appeal is dismissed at motion stage itself. 17. The decree be drawn accordingly. 18. The parties to bear their own cost. Sd/- (Naresh Kumar Chandravanshi) JUDGE Rukhsar