1 2025:CGHC:59227 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 170 of 2013 1 - Girdhari S/o Tekchand Aged About 54 Years R/o Vicky General Stores, Shanichari Bazar, Bilaspur, Tah. And Distt. Bilaspur, P.S. Sarkanda, Distt. Bilaspur, Chhattisgarh. ... Appellant versus 1 - Smt. Usha Khandelwal W/o D.B. Khandelwal Aged About 60 Years R/o L- 3/21, D.L.F. Phase-2, Gudgaon Hariyana, Haryana. 2 - Sudhir Khandelwal S/o Vishnu Swaroop Gupta R/o Gondpara, Tahsil and District, Bilaspur, Civil And Revenue District Bilaspur, Chhattisgarh. 3 - Radha Kishan S/o Bhag Chand, Aged About 47 Years, R/o Vicky General Stores, Shanichari Bazar, Bilaspur, Tahsil and District Bilaspur, Chhattisgarh ... Respondent(s) For Appellant : Shri Amit Soni, Advocate. For Respondents : None, though served. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 05.12. 202 5 1. The present First Appeal under Section 96 of The Code of Civil Procedure, 1908 has been filed by the appellant/defendant No.1 against the judgment and decree dated 14.03.2013 passed by the Ist Additional District Judge, Bilaspur, in Civil Suit No.10-A/2010 whereby the civil suit filed by the plaintiff for eviction of defendants from the suit premises and for recovery of arrears of rent has been decreed in favour of the plaintiff. Digitally signed by INDRAJEET SAHU Date: 2025.12.11 11:05:39 +0530 2 2. The plaintiff filed a civil suit on 09.11.2004 with the pleading that the suit house situated at village Chaatidih, PH No.109, Tehshil and District Bilaspur over the land Khasra No.301/15, area 0.05 Acre was obtained by the plaintiff from her father. The defendant No.1&2 obtained the suit house on rent from her father in the year, 1986 at the monthly rent of Rs.2200/-. The father of plaintiff died on 25.12.2001. The defendant No.1&2 paid the rent of suit house from July 2001 to November, 2001 through cheque on 24.12.2001. Thereafter, on the instructions of plaintiff, they deposited the property tax of suit house to the Municipal Corporation, Bilaspur in April, 2002 and gave a receipt of Rs.4424/- which was adjusted in the rent of the month of December, 2001 and January, 2002. Thereafter, the defendant No.1&2 stopped paying rent of the suit house and entered into a sub tenancy to the defendant No.3. The plaintiff served a legal demand notice on 20.07.2004 with respect to arrears of rent and terminated tenancy from 31.07.2004 and asked to hand over the vacant possession of suit house. In reply to the legal notice, the defendant No.1&2 replied that they have handed over the vacant possession of the suit house to defendant No.3 and thus the suit has been filed by the plaintiff against the defendants. 3. The defendant No.1&2 contested the claim of the plaintiff, denied the plaint averment and filed their written statement with the pleading that the suit house is situated at Khasra No.301/15 whereas in the notice it was mentioned as Khasra No.301/9. The defendant No.3 is adopted son of late Ramnath. The suit house was given on rent to the brother of defendant No.1 namely Govind Ram by late Ramnath and defendant No.3 in the year 1983 and they continued in tenancy since then. 3 Govind Ram died in the year, 1996 and thereafter on the instance of late Ramnath and defendant No.3, the rent was enhanced and defendant No.1 remain in occupation of the suit house up to January, 2002 and thereafter he handed over the vacant possession of the suit house to defendant No.3. The defendant No.1&2 were never the tenant of plaintiff and there was no relationship of landlord tenant between them. There is no arrears of rent against them and the suit is liable to be dismissed. 4. The defendant No.3 also contested the claim of the plaintiff, filed their written statement and submitted that the suit house is owned by his son Shantanu Khandelwalf which he obtained through a will deed dated 07.06.1999 executed by late Ramnath. The plaintiff filed an application for mutation of suit house in her own name on 20.03.2003. In that proceeding, the will executed in favour of plaintiff was produced. The will deed dated 07.06.1999 was also produced in that proceeding and a probate proceeding was pending before the competent court. The defendant No.1&2 were tenant of late Ramnath and no relief can be granted to the plaintiff against defendant No.3. 5. On the basis of the pleadings, the trial court framed the following issues: dz- Okkn iz’u fu"d"kZ 1- D;k] okfnuh okn xzLr LFkku i0g0ua0&109 rglhy ,oa ftyk fcykliqj fLFkr pkaVhMhg fcykliqj [kljk u-a 301@15 jdck 0-05 fufeZr edku dh Hkw&Lokeh gS \ izekf.kr 2- D;k]okfnuh ,oa izfroknh dzekad&1 o 2 ds e/; oknxzLr LFkku ds laca/k esa HkwLokeh ,oa fdjk;snkj ds laca/k gS \ izekf.kr 3- D;k]izfroknh dzekad&1 o 2 }kjk oknxzLr LFkku ij izekf.kr 4 okfnuh ds gd dks pqukSrh fn;stkus ds dkj.k csn[ky fd;s tkus ds vf/kdkjh gS \ 4- D;k] izfroknh dzekad&1 o 2 us oknxzLr LFkku dks izfroknh dzekad &3 dks mi fdjk;s ij fn;k gS\ izekf.kr 5- D;k okfnuh izfroknh dzekad&1 o 2 ls cdk;k fdjk;k 66 gtkj :i;k izkIr djus dh vf/kdkjh gS \ izekf.kr 6- D;k okfnuh] izfroknhx.k ls oknxzLr LFkku dk fjDr vkf/kiR; izkIr djus dh vf/kdkjh gS \ izekf.kr 6. In support of claim, the plaintiff examined PW-1 Smt. Usha Khandelwal and relied upon Ex.P/1, legal notice dated 20.07.2004, P/2 to P/5, postal receipts and acknowledgments, P/6, will deed dated 12.11.1992 executed in favour of plaintiff, P/7, bank passbook, P/8, receipt of deposition of rent, P/9, registered notice dated 26.07.2004 and P/10 to P/12 which are receipts deposited with the Municipal Corporation, Bilaspur. The defendants have examined Girdhari Lal, DW-1 and Sudhir Khandelwal, DW-2 and relied upon documents Ex.D/1 to D/11 which are documents of revenue proceedings, the documents relating to proceedings under the Indian Succession Act, 1925, copies of revenue records and tax receipts of Municipal Corporation, Bilaspur. 7. After hearing the parties, the trial court comes into conclusion that the plaintiff is landlord of the suit house and there was a relation of landlord tenant between the plaintiff and defendant No.1&2, the defendant No.1&2 sublet the suit house to defendant No.3 and denied the title of the plaintiff and therefore passed a decree of eviction from suit house and granted Rs.66000/- as arrears of rent against the defendant No.1&2 and also granted damages @ Rs.2200/- per month till delivery of vacant possession of suit house to the plaintiff. The said judgment 5 and decree is under challenge by the defendant No.1 in the present appeal. 8. Learned counsel appearing for the appellant/defendant No.1 would submit that he is not aggrieved of the delivery of vacant possession of the suit house as he has already handed over the vacant possession of the suit house to defendant No.3 in January 2002 and thereafter they are not the tenant of plaintiff. Handing over the vacant possession to the defendant No.3 was well within the knowledge of plaintiff as defendant No.3 is her near relative and a will has also been executed in favour of defendant No.3 by late Ramnath. The suit house was given on rent by late Ramnath to the defendant No.1&2 and since the defendant No.3 was claiming title over the suit house by virtue of will executed by late Ramnath, they handed over vacant possession to him. They were not the tenant of plaintiff. There was a probate proceeding pending before the plaintiff and defendant No.3 and it is their inter se dispute with respect to title. However, the fact remains that the defendant No.1&2 are not in possession of the suit house from January, 2002 and therefore no liability with respect to arrears of rent could be imposed upon them. He would further submit that the findings recorded by the trial court that the suit house was given by defendant No.1&2 to defendant No.3 on sub tenancy is erroneous. He would submit that from the evidence of plaintiff as well as defendant No.3 it is explicit clear that defendant No.1&2 bonafidely handed over vacant possession of suit house to defendant No.3 considering him as landlord by virtue of the will deed executed in his favour. Therefore, they are not liable to pay arrears of rent as the entire rent with respect 6 to suit house have been paid and therefore the impugned judgment and decree is liable to be set aside. 9. No one appears on behalf of respondents despite service of notice upon them. 10. I have heard learned counsel for the appellant and perused the record of the trial court. 11. The points for determination in the present appeal would be whether the findings recorded by the trial court that defendant No.1&2 put the defendant No.3 as sub tenant is justified or not; and whether the defendant No.1&2 is liable to pay the arrears of rent and compensation or not ? 12. It was the claim of the plaintiff in the the suit that she inherited the property of her father including the suit house whereas the defendant No.3 also claimed that he is the owner of suit house by virtue of will deed dated 07.06.1999. Although the defendant No.3 have pleaded in his written statement that will deed dated 07.06.1999 was executed in the name of his son Shantanu Khandelwal. It was also the pleading of defendant No.3 that a probate proceeding is pending between the parties with respect to execution of will by late Ramnath in favour of plaintiff as well as defendant No.3. The plaintiff being a natural heir of late Ramnath also claimed by virtue of will deed dated 12.11.1992 Ex.P/6 that suit house was given to her and she is the owner of same. She stated in her evidence that the suit house was given on rent to defendant No.1&2 in the year 1986 by her father at a monthly rent of Rs.2200/-and due to his old age he came to Delhi in the year 1999 and resided with her till his death. He died on 25.12.2001 at Delhi. After his 7 going to Delhi, the rent of suit house was being deposited in their bank account and on their instructions the defendant No.1&2 paid the municipal tax from 1999 to 2000 i.e. Rs.4424/- which was adjusted on the rent for the month of December, 2001 and January 2002. From February 2002 the defendant No.1&2 did not pay any rent to them and put the defendant No.3 as sub tenant. She served a legal notice on 20.07.2004 and demanded the arrears of rent of Rs.66000/- and also asked to hand over the vacant possession of the suit house and by the said notice she terminated the tenancy of defendants. In reply to the notice, the defendant No.1&2 have stated that in January 2002 they handed over the vacant possession of suit house to defendant No.3 in presence of witnesses. In cross examination the plaintiff PW-1 have admitted that defendant No.3 is her cousin brother. She admits that prior to service of notice to defendant No.1&2, she filed an application before the Tehsildar for mutation of suit house in her name. She further states that she did not know as to whether defendants have raised any objection in the mutation proceeding or not. She denied the suggestion that her father and defendant No.3 both had given the suit house on rent to the brother of defendant No.1 namely Govind Harpal. She also denied that prior to service of notice the defendant No.1&2 handed over vacant possession of suit house. From the evidence of PW-1 it transpires that before service of notice to defendant No.1&2 she made an application before the Tehsildar for mutation of her name in the revenue records in which the defendants have raised objection. When the defendants raised objection in the mutation proceeding of the name of plaintiff over 8 the suit house, definitely their relation was not cordial and there was a dispute with respect to ownership of the suit house between the plaintiff and defendant No.3. The plaintiff was stated to be residing at Delhi where her father also went and took his last breath at Delhi in the year 2001 which also found proved by the death certificate of Ramnath issued by the Registrar, Birth and Death, West Zone, MCD, Delhi. The evidence of the plaintiff that rent of the suit house was deposited in the bank account of late Ramnath Khandelwal has also been proved vide document Ex.P/8 which are the bank receipts and defendants have also not specifically denied the fact that they have not deposited the rent of suit house in the bank account of late Ramnath. When the plaintiff was residing at Delhi, the dispute with defendant No.3 arose with respect to ownership of the suit house as both of them were claiming their right by virtue of respective wills executed by late Ramnath, it cannot be considered that plaintiff had instructed the defendant No.1&2 to hand over the vacant possession of suit house to defendant No.3. The defendant No.3 was having conflicting interest over the suit house with the interest of the plaintiff. Even if the defendant No.1&2 handed over the vacant possession of suit house to defendant No.3, it cannot be said that defendant No.1&2 have validly handed over the vacant possession of suit house after termination of their tenancy. Admittedly, there was a dispute with respect to ownership of the suit house between the plaintiff and defendant No.3 and probate proceeding was also pending between them. 9 13. The defendant No.1 have stated in his evidence that on the instance of late Ramnath & defendant No.3, the rent of suit house was enhanced and in the month of January 2002 on the instructions of defendant No.3 and plaintiff, they handed over the vacant possession of the suit house to defendant No.3 in presence of witness Ashok Rao. There is no arrears of rent against him and he is not liable to pay any damages. There was a dispute between the plaintiff and defendant No.3 with respect to ownership of the suit house. In cross examination, this witness has admitted that he was tenant over the suit house and rent was Rs.2200/- per month. He also admits that in January 1999 Ramnath went to Delhi to plaintiff and they deposited the rent of suit house in his bank account Ex.P/7 and after deposition of the rent they sent the receipts by post. Till his death, late Ramnath resided with the plaintiff at Delhi and he died in December 2001. He further admits that from July 2001 to November 2001 they sent to amount of rent through cheque. He also admits deposition of Rs.4424/- as municipal taxes which was adjusted in the monthly rent. He admits that in February 2002 the defendant No.3 took the keys of suit house on the pretext of marriage function of his friend. In reply to the notice of plaintiff, he also mentioned that keys of suit house was handed over to defendant No.3 which he obtained on the pretext of marriage of his friend. Thereafter, they have not paid any rent to the plaintiff as they did not remain tenant. He further states that from February 2002 the defendant No.3 is in possession of the suit house and therefore the defendant No.3 is liable to pay the rent. 10 14. From the evidence of this witness, it is crystal clear that defendant No.3 took the keys of suit house on the pretext of marriage of his friend, however he has not stated in his cross examination that on the instance of plaintiff the defendant No.1&2 handed over keys of suit house to defendant No.3. When defendant No.3 was having conflicting interest over the suit house with plaintiff and there was no instructions by the plaintiff to hand over the key of suit house to defendant No.3, it cannot be said that keys have been handed over to defendant No.3 with the permission of plaintiff. It has also not been stated that defendant No.3 is also the owner of suit house and he handed over possession of keys of suit house to him. Admittedly, at the time when possession of suit house is said to have been handed over to defendant No.3, the plaintiff was residing at Delhi. 15. The defendant No.3 claimed ownership over the suit house by virtue of will deed dated 07.06.1999 which was allegedly executed by late Ramnath in favour of his son namely Shantanu Khandelwal. In the written statement filed by the defendant No.3 nowhere he has stated that on the instance of plaintiff, the defendant No.1&2 handed over possession of the suit house to him whereas, the defence taken by the defendant No.1&2 is that on the instance of plaintiff they handed over the vacant possession of suit house to defendant No.3 in presence of their witness Ashok Rao. There is no adjudication between the plaintiff and defendant No.3 with respect to their respective claims over the property by virtue of will dated 12.11.1992 executed in favour of plaintiff by late Ramnath and will dated 07.06.1999 executed in favour of Shantanu Khandelwal son of defendant No.3 by late Ramnath and thus 11 there is no question of handing over the vacant possession of suit house to defendant No.3 particularly when late Ramnath was residing at Delhi along with plaintiff till his death and rent of the suit house was deposited in the bank account of late Ramnath. 16. The another aspect of the matter would be, the defendant No.1&2 have claimed that in the month of January 2002 they have handed over the vacant possession of the suit house to defendant No.3 on the instance of plaintiff. Up to December, 2001 when the rent was paid to late Ramnath in his bank account, till that time there was no issue with respect to vacating the suit house by the defendants. Had there been any issue between them and they vacated the suit house and handed over the possession to defendant No.3, they would not have deposited the municipal taxes of the suit house in April, 2002 i.e. subsequent to vacation of the suit house by them. They would have said that since they have already vacated the suit house, they would not get the municipal tax paid in the name of plaintiff and it is for the defendant No.3 to deposit the same with the municipal corporation. Meaning thereby, the relation between plaintiff and defendant No.1&2 were cordial which does not give any cause to get the suit house vacated from them. 17. The another issue involved in the present case is that, the defendant No.1&2 put the defendant No.3 in sub tenancy. The sub tenancy is defined in Section 14(1) of the Chhattisgarh Accommodation Control Act, 1961 (in short, the Act, 1961) and it is necessary to notice the provisions of Section 14(1) of the Act, 1961, which reads as under: 12 “14. Restrictions on sub-letting.- (1) No tenant shall, without the previous consent in writing of the landlord,- (a) sub-let the whole or any part of the accommodation held by him as a tenant; or (b) transfer or assign his rights in the tenancy or in any part thereof. (2) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub- letting of the whole or any part of the accommodation held by the tenant” 18. Section 14(1)(b) of the Act, 1961 provides transfer or assign his rights in the tenancy or in any part thereof. When defendant No.1&2 handed over the keys of suit house to defendant No.3, it does amount to assign his right of tenancy to the defendant No.3 and the status of defendant No.3 would be sub tenant over the suit house. 19. DW-2, Sudhir Khandelwal, have stated in his examination in chief that defendant No.1&2 have paid the rent to him and after death of Ramnath they handed over the vacant possession of the suit house to him. The said part of his evidence is not in his pleadings in the written statement. In the written statement he solely claimed ownership of the suit house on the basis of will executed in favour of his son Shantanu Khandelwal. 20. The trial court after considering the judgments passed by the MP High Court in M/s Gajra Bevel Grears Ltd. Vs. Manohar & Other, 1997(2)JLJ 127 and Kalyan Singh Vs. Ramswarup & Others, 1996 JLJ 247, held that defendant No.3 put as the sub tenant over the suit house and they have not paid the rent of suit house from February, 2002 till 31.07.2004 and plaintiff is entitled for arrears of rent of Rs.66,000/- from the defendant No.1&2 and after holding that plaintiff is entitled for decree of eviction against the defendants, they also found the plaintiff entitled for 13 damages @ 2200/- per month till delivery of vacant possession of the suit house to her from the defendants, in which, this court does not find any infirmity or illegality and therefore the judgment and decree passed by the trial court is affirmed and the appeal filed by the appellant is dismissed. 21. The parties shall bear their own costs. 22. An appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge inder