1 2025:CGHC:59500 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 96 of 2009 Judgment Reserved on : 22.08.2025 Judgment Delivered on : 08.12.2025 1 - Union Bank Though Chairman Union Bank Bhavan 239, Vidhan Bhavan Marg Nariman Point Mumbai. 2 - Union Bank Through Senior Manager, A-9/10 Veer Savarkar Market, Opp. Teen Darshan Mandir, G.E. Road Supela Bhilai District Durg C.G. ... Appellants versus • Smt. Mayadevi Gupta W/o R.N. Gupta , 4/7, Shastri Nagar, Bhilai, District Durg ... Respondent For Appellants : Mr. P.R. Patankar, Advocate For Respondent : Mr. H.B. Agrawal, Sr. Advocate with Ms. A. Sandhya Rao, Advocate Hon'ble Shri Justice Narendra Kumar Vyas (CAV Judgment) 1. This is defendants’ first appeal filed under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 06.02.2009 passed by learned XII Additional District Judge (FTC), District- Durg (C.G.) in Civil Suit No. 18-B/2007 (Smt. Mayadevi Gupta Vs. Corporation Bank & Another) whereby learned trial Court has partially decreed the suit filed by the plaintiff and directed the BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.12.08 17:13:09 +0530 2 defendants to pay Rs. 1,96,009.80/- with 6% interest from date of filing of the suit i.e. 12.03.2007 with cost. 2. For the sake of convenience, the parties have been described as per their description before the Civil Suit No. 18-B/2007. 3. The brief facts as reflected from the record are that- A) The plaintiff has filed a suit before the learned trial Court claiming recovery of Rs. 2,44,345/- mainly contending that the plaintiff is having title of the house situated at Jalebi Chowk, Camp No. 01, Bhilai, District Durg (hereinafter referred to as “suit house”). The Defendants are nationalized bank and have taken building of the plaintiff on monthly rent to the tune of Rs. 14,956.32/- and the said amount was transferred in the account of the plaintiff after deduction of T.D.S. which comes to Rs. 12,667.32/-. It is also the case of the plaintiff that the defendants in the year 2005 closed their banking business in the suit house and have transferred it to G.E. Road, Camp No. 01, Power House but have not vacated the house of the plaintiff and periodically removed the items kept in the suit house. It has also been contended that the respondent No. 2 has stopped paying rent to the plaintiff from October, 2005 whereas it has been used by them. B) It is also case of the plaintiff that the defendants have also removed electric meter and have dismantled the generator room caused financial loss to the plaintiff by damaging electric wiring, generator room and electric meter. It is also case of the plaintiff that the plaintiff and her husband demanded defendant No. 2 to pay outstanding rent amount and to vacate the suit house, but no 3 interest was shown by them whereas on 15.12.2005 and 20.03.2006 they have debited amount to the tune of Rs. 500/- and Rs. 4333/- respectively without plaintiff’s knowledge and permission against which the plaintiff has filed complaint before Police Station Chhavni then defendant No. 2 credited the said amount in the account of the plaintiff. C) Thereafter the plaintiff has served notice to the defendants on 25.11.2006 but despite receiving notice the defendants have not paid outstanding rent as such she has prayed for payment of rent from October, 2005 to December, 2006 for 15 months at the rate of 14,956.32/- per month which comes to Rs. 2,24,344.80/- and also claimed damages caused to the suit house which comes to Rs. 19,000/- as such recovery of Rs. 2,44,345/- was claimed by the plaintiff. 4. Defendants No. 1 & 2 have filed written statement denying the allegations made in the plaint that: A) It is admitted that defendant No. 2 after deducting the T.D.S. used to pay Rs. 12667.32/- to the plaintiff towards monthly rent of the premises hired by the them for banking purpose. It has also been contended that defendant No. 2 shifted its branch to another premises in the month of October, 2005 and before shifting vide letter dated 15.09.2005 they have already informed the plaintiff that they will vacate the premises by 15.10.2005 hence it was requested to take possession of the suit premises on 16.10.2005 and also to submit a letter to defendant No. 2 confirming taking possession of the suit premises in vacant and 4 good condition so that no claim is made against the Bank in respect of the leased premises. As such allegations made by the plaintiff that the defendants have dismantled the generator room is false and fabricated. It has also been contended that generator room was kept outside the rented premises and was surrounded by iron curtain/fencing. So far as Electric Meter is concerned, it is contended that they have not removed the same and and contended that despite repeated request made by them, the premises was lying idle and no charges were being paid to the C.S.E.B. and the Electric Meter was removed by the C.S.E.B. some time in the year 2006 and the same has been restored in March, 2007 at the cost of the defendant. The C.S.E.B. has issued a Demand Notice for Rs. 12,732/- towards outstanding dues which was submitted to the Bank by the plaintiff and the same was paid by the Bank. It has also been contended that so far as electric meter and wiring is concerned, the plaintiff submitted quotation of one electrical contractor M/s Ajanta Electricals to the Bank and an amount of Rs. 5,610/- has been paid to the said contractor and thus the power has been restored in the suit premises at the cost of the defendant. B) It has also been contended that in reply to the defendant’s letter dated 15.09.2005 the plaintiff sent a notice on 13.10.2005 by which the plaintiff objected to termination of tenancy and contended that in the absence of legal notice the tenancy cannot be terminated and the same continues until “No Dues Certificate” from C.S.E.B. or Municipal Corporation are obtained. It has also 5 been stated that the defendant No. 2 is liable to pay monthly rent to the plaintiff till she takes vacant possession of the suit premises. It has also been contended that notice sent by the plaintiff has been replied by the Bank on 30.11.2005 through their Advocate reiterating the facts as mentioned in intimation dated 15.09.2005 and thus it has been prayed for dismissal of the suit. 5. The learned trial Court on the pleadings of the parties has framed as many as 6 issues out of which issues No. 1 to 3 are relevant which are extracted below:- ^^1&v D;k izfroknhx.k us vDVwcj 2005 esa gh oknh dks fookfnr edku dk dCtk ysus dks dgk Fkk\ c ;fn gkWa rks D;k oknh us tkucw>dj dCtk izkIr ugha fd;k\ 2- D;k oknh cdk;k fdjk;k ds :i esa 2]24]345@& :i;k izkIr djus dk vf/kdkjh gS\ 3- D;k oknh tujsVj :e dh ejEer dk [kpZ 19]000@& :i;k izfroknhx.k ls izkIr djus dk vf/kdkjh gS\^* 6. The plaintiff to substantiate her case has examined herself as PW-01 and exhibited documents namely registered notice (Ex. P/1), postal receipt (Ex. P/2), reply dated 30.11.2005 (Ex. P/3), notice dated 25.11.2006 (Ex. P/4), postal receipts (Ex. P/5 to P/7), acknowledgment (Ex. P/8 & P/9), reply dated 08.12.2006 (Ex. P/10), letter dated 27.12.2006 (Ex. P/11), notice dated 21.12.2006 (Ex. P/12), Postal receipt (Ex. P/13), letter of Bank dated 01.05.2000 (Ex. P/14), letter dated 30.01.2001 (Ex. P/15), letter dated 16.04.2001 (Ex. P/16) and Panchnama (Ex. P/17c). 7. The plaintiff in her examination-in-chief has reiterated the fact that she has made complaint and in paragraph 8 of her evidence she has 6 admitted that generator was kept outside in the courtyard and was covered by net to protect from any theft and above it a cement slab was also built. The witness was cross-examined by the defendants wherein she has admitted that on 15.09.2005 a notice was sent by the Bank which was received by her on 01.10.2005. She has also stated that she cannot say that notice dated 30.11.2005 (Ex. P/3) was received by her or not and denied that she has refused to accept notice dated 05.06.2005. 8. The Defendants to substantiate their case has examined Gopal Krishna Iyer (DW-01) and exhibited documents namely letter dated 13.03.2007 (Ex. D/1), electricity bill for month March 2006 (Ex. D/2), electricity bill (Ex. D/3), cash memo dated 29.03.2007 (Ex. D/4), notice (Ex. D/5), postal receipt (Ex. D/6), notice envelope (Ex. D/7), certified copy of savings account (Ex. D/8), certificate (Ex. D/9) and notice dated 15.09.2005 (Ex. D/10). 9. Mr. Gopal Krishna Iyer (DW-01) Branch Manager of the Corporation Bank by way of an affidavit under Order 18 Rule 4 of the C.P.C. has reiterated the contents made in the written statement. The said witness was cross-examined wherein he has admitted that the Bank has been shifted from place of the plaintiff to another place. He has also admitted that the bank has constructed counter staff room and also admitted that electric meter installed in the plaintiff’s room was removed and the same was re-installed by them in the year 2007. He has also admitted that on 30.12.2006 possession of the room was given to the plaintiff and has also admitted that his signature is there in the Panchnama 7 dated 30.12.2006 (Ex. P/17c) and admitted that the contents written in the Panchnama are true and correct. 10. Learned trial Court after appreciating the evidence, material placed on record vide judgment and decree dated 06.02.2009 has decreed the suit filed by the plaintiff. The learned trial Court by recording its finding while deciding issue No. 1 & 2 has recorded its finding that the defendants have asked the plaintiff to take possession of the suit premises on 16.10.2005 and the plaintiff has received notice regarding possession on 01.10.2005 and has recorded its finding that one month’s prior notice was not given, as such it cannot be considered that the plaintiff deliberately has not taken possession of the suit premises despite notice sent by the defendants. The trial Court has also recorded its finding that as per Ex. P/17c the plaintiff has obtained possession of her house on 30.12.2006 and from perusal of certified copy of the plaintiffs account (Ex. D/8), it is vivid that the defendants have not paid rent to the plaintiff from October, 2005 to December, 2006 and accordingly the trial Court has decreed the suit in favour of the plaintiff. The trial Court has also recorded its finding that the defendants have removed iron fencing and removed the generator but it has not recorded its finding that iron fencing has been returned by them to the plaintiff and accordingly has directed the defendants to pay Rs. 5,000/- towards loss caused to the generator room. 11. Being aggrieved with the judgment and decree dated 06.02.2009, the defendants have preferred the instant appeal before this Court. 12. Learned counsel for the appellants would submit that learned trial Court has committed illegality in decreeing the suit as the finding 8 recorded by the learned trial Court is contrary to the evidence, law and facts of the case. He would further submit that learned trial Court has committed illegality in recording its finding that one month notice was not given to the respondent and has recorded its finding that since notice was given to the respondent on 15.09.2005 for taking possession which was received by the respondent on 01.10.2005 still it has recorded its finding that one month notice was not given, therefore, the appellants are liable to pay monthly rent from October, 2005 to December, 2006 is erroneous and would pray for allowing the appeal. 13. On the other hand, learned Senior Counsel for the respondent opposing the submission made by learned counsel for the appellants would submit that the finding recorded by the learned trial Court does not suffer from perversity or illegality as learned trial Court has passed the judgment and decree after appreciating the facts and evidence on record and would pray for dismissal of the appeal. 14. I have heard learned counsel for the parties and perused the documents available on record with utmost circumspection. 15. From the submission and the evidence brought on record, the point emerged for determination of this Court is ‘whether the learned trial Court was justified in directing the defendants to pay rent from October, 2005 to December, 2006 on the count that one month notice for handing over vacant possession of the suit premises has not been given by them to the plaintiff?’ 16. From the evidence brought on record before the trial Court, it is quite vivid that the plaintiff has not placed on record the rent agreement executed between the defendants and the plaintiff for suit premises 9 and admitted notice dated 15.09.2005 given by the Bank regarding vacating the possession of the suit premises wherein it has been clearly mentioned that this notice may be treated as 30 days notice. The notice further states that please note that no rent shall be payable to you after the aforesaid date. This fact has also been admitted by the plaintiff in the registered notice dated 13.10.2005 (Exhibit P/1) which reads as under: “2- fd fdjk;kukek djkj ds vuqlkj dafMdk&6 dh ‘krZ ds vuqlkj Hkou dk fjDr dCtk ,d ekg dh fyf[kr lwpuk ¼uksfVl½ nsus ij fof/k vuqlkj dCtk okil fd;k tk ldsxkA fd vkids }kjk izsf”kr lwpuk fnukad 15@9@05 ¼ Vkbi fd;k gqvk gS ½ nqHkkZouk iwoZd izsf”kr gS D;ksafd mDr lwpuk vkids }kjk Mkd foHkkx esa fMfyojh gsrq fnukad 28@9@05 dks iksLV djk;h x;h gSA fd vkids mDr lwpuk esjh i{kdkjk ds irs ij fnukad 1@10@05 dks fMfyoj dh xbZ gS bl izdkj vkidh lwpuk izkIr fnukad 1@10@05 ds vuqlkj djkj dh o fof/k dh ea’kk dks iw.kZ ugha djrh vkSj lwpuk izkfIr fnukad ls ,d ekg ds iwoZ ‘krZ iw.kZ ugha gksrh gS blfy;s vkids }kjk izsf”kr lwpuk mfpr :i ls o lnHkkouk iwoZd Mkd ls tkjh ugha gksus ls ‘kwU; gS blfy, lkjghu gksus ls esjs i{kdkj ij ca/kudkjh ugha gS vkSj esjk i{kdkj vkils fjDr dCtk fof/kor izkIr djus rd fdjk;k izkIr djus dk vf/kdkjh gSA ” 17. Thereafter the plaintiff has also exhibited reply dated 30.11.2005 (Exhibit P/3) wherein it has been mentioned that the Bank has vacated the premises on 15.10.2005 and one month notice has also been given to the plaintiff. The plaintiff in her evidence before the trial Court has admitted that the Bank has given notice on 15.09.2025 which has been received by her on 01.10.2005 and thereafter registered notice dated 13.10.2005 (Ex. P/2) was received or not known to her. Thus, from the evidence of the plaintiff itself it is quite vivid that notice of one month has already been given and no rent agreement was placed on record, 10 therefore, in view of Section 106(3) of the Transfer of Property Act, 1882 it is quite vivid that a notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. The Section 106 of the Transfer of Property Act, 1882 is reproduced below: “106. Duration of certain leases in absence of written contract or local usage.— (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.” The record of the case clearly demonstrate that the plaintiff has filed the suit on 12.03.2007 much after one month of notice period. 18. Even from the perusal of the Panchnama (Ex. P/17c) it does not establish that the defendants have not handed over possession to the 11 plaintiff. The plaintiff in her evidence has not established that despite vacating possession of the premises the defendants are illegally continuing in the suit premises, as such, the learned trial Court has wrongly shifted the burden upon the defendants that they have not vacated the premises, whereas from Ex. P/3, P/4 and Exhibit D/10, it is quite vivid that the Bank has informed the plaintiff to take possession of the premises and the plaintiff has not made out any case that she has made an attempt to take possession of the suit premises and the defendants are not allowing her to take possession. 19. The learned trial Court should have also considered that the plaintiff has not placed on record the lease agreement which is relevant document to decide the controversy how the possession has to be handed over and the plaintiff has neither filed the documents nor moved any application before the trial Court directing the defendants to produce the lease agreement, therefore, due to non-production of lease agreement which is vital evidence which can throw light on the controversy that how suit premises have to be vacated after shifting or what are the mode of handing over is required. In absence of vital evidence the trial Court should have drawn inference against the plaintiff. The issue with regard to drawing of adverse inference due to non production of vital evidence or witness in the Court proceedings has been considered by the Hon’ble Supreme Court in case of Chowdamma (D) by LR and Another Versus Venkatappa (D) by LRs and Another in Civil Appeal No. 11330 of 2011 wherein the Hon’ble Supreme Court in paragraphs 50, 53, 55, 56, 57, 58 & 59 has held as under: 12 “50. The failure of the defendants to substantiate their claims through documentary evidence is eclipsed by a more consequential omission. In a case where the principal controversy turns on matters lying within her exclusive personal knowledge, the silence of defendant No.1, her absence from the witness box, is not a procedural lapse but a calculated withdrawal from scrutiny. 53. This inference is inescapable. This is not a case of medical inability but of deliberate silence. In civil proceedings, particularly where the facts lie exclusively within the personal knowledge of the party, the refusal to enter the witness box carries grave evidentiary consequences. 54. This principle is neither novel nor uncertain. This Court in Vidhyadhar v. Manikrao and Anr. ((1999) 3 SCC 573) held thus: “17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct …. ” 55. The present case is a compelling invocation of the above principle. Defendant No.1, though physically present in the Court during the trial, abstained from stepping into the witness box to rebut the plaintiffs’ assertions — assertions that strike at the very core of the dispute. In the absence of cogent medical evidence to support her alleged incapacity, her abstention from the witness box constitutes deliberate circumvention of the evidentiary burden resting upon her. 56. In the present factual matrix, the adverse presumption under Section 114(g) of the Evidence Act is inevitable. 57. This Court cannot overlook that defendant No. 1, while central to the controversy, chose not only to abstain from entering the witness box but also wilfully bypassed the statutory remedy available to those pleading physical incapacity. 58. Order XXVI, Rule 1 of the Code of Civil Procedure, 1908, permits the recording of evidence through a commission in cases of age or infirmity. Yet, no application was filed invoking the said provision, nor was any explanation tendered for its non- invocation. In a dispute where the foundational facts lie squarely 13 within her exclusive knowledge, such omission assumes critical significance. Her refusal to depose, despite the existence of a procedural safeguard specifically tailored to her alleged condition, cannot be dismissed as inadvertent. Rather, it reflects a conscious evasion from the evidentiary process, compounded by her unexplained failure to avail an accessible legal alternative, is not a neutral act. It constitutes wilful shielding from judicial scrutiny. 59. A Court of law cannot offer refuge to studied silence where a duty to disclose exists. The plaintiffs anchored their claim in measured and unwavering testimony of P.W.2 (Hanumanthappa), an account rooted in personal knowledge and long-standing familiarity, which withstood the rigours of cross-examination. His evidence, unshaken and consistent, found further corroboration in the genealogical chart presented by the plaintiffs. It, therefore, stands established that the plaintiffs have discharged the evidentiary burden imposed upon them by law. In contrast, the defendants, bereft of probative material or candour, resorted solely to denials. When measured against the touchstone of preponderance of probabilities, the scales unambiguously tilt in favour of the plaintiffs.” 20. The plaintiff in her evidence has not established that despite vacating possession of the premises the defendants are illegally continuing in the suit premises, as such, the learned trial Court has wrongly shifted the burden upon the defendants that they have not vacated the premises. The Hon’ble Supreme Court in case of State of Madhya Pradesh Vs. Nomi Singh And Another reiterated in (2015) 14 SCC 450 in paragraphs 11 & 12 has held as under: “11. It is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case. On perusal of the impugned order passed by the High Court, this Court finds that the High Court has wrongly shifted burden of proof on the defendants. In the middle of paragraph 14 12, while giving its reasons to disagree with the decree passed by the courts below, the High Court has observed as under: - “It was the respondent-defendant who has challenged the possession of plaintiff and his father on the ground of khasra entries, therefore, burden of proving the fact that allegations made by the defendant are correct, is on the defendant, in which the defendant has failed. Further it has been admitted before the Court that entry of plaintiffs in the khasra record is as encroacher, but no such khasra entries have been produced by them...." In the middle of paragraph 15 of the impugned decree, again the High Court observes: - “Further, the defendant has failed to prove the possession of the plaintiff and his father was that of an encroacher. The defendant has further failed to prove the Khasra Nos. 1950 to 1952 to be wrong or that patta given to the plaintiffs, was only for one year,...." The above observations made by the High Court, show that it has erroneously placed onus of proof of title and possession of the plaintiffs, on the defendant. The High Court has completely ignored the fact that the plaintiff after losing case in the first round from the trial court, got amended the plaint and took plea of adverse possession, on which matter was remanded to the trial court, and after hearing parties suit was again dismissed, which was upheld by the first appellate court. The above approach of the High Court is against the law laid down by this Court, and in our opinion, it erred in law in reversing the decree passed by the trial court and that of the first appellate court by shifting burden of proof on the defendant. 12. From the perusal of the papers on record, it appears that though the plaintiffs have pleaded that Surjan Singh was granted oral patta by erstwhile Zamindar Srilal, but it has not been averred in the plaint as to in which year or Samvat such an oral patta was given to Surjan Singh (father of plaintiff Nomi Singh). The first appellate court has rightly taken note of the fact that if the respondents (plaintiffs) were bhumiswamis, they could have filed the receipts of payments of land revenue (lagaan), or the receipts of crop profits paid to the zamindar. Though the plaintiffs did file some documentary proof in the form of khasra entry in respect of some of the plots in question, for the period of 15 1950-1952 (i.e. when admittedly land was allotted for one year to the father of the plaintiff), but the subsequent entries for period Samvat 2013 to Samvat 2018 disclosed that the land in question was part of industrial area and recorded in favour of the Commercial Department of the State.” 21. Learned trial Court has ignored the vital aspect of the matter, therefore, it has committed illegality and irregularity in passing the judgment and decreeing the suit deserves to be set-aside and accordingly it is set- aside. Consequently, the appeal is allowed. The interim order passed by this Court on 01.05.2009 is vacated and the amount so deposited by the appellants shall be returned to them forthwith by the learned trial Court with interest if it has been deposited in the interest bearing account. 22. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Bhumika