APPELLANT Defendant RESPONDENT PlaintiFf Walson v. vs P. Rai

. ^ APPE&L UNDER SEC'TION fo0 OF G.P.C. &GAINST THE AND ©ECREE QATED 6^.7-2004 PASSED BY ABOITXONAL DISTRICal JUi3GE_lE'AST-'ERAGK COUST) PENEBA-ROAD, DISTRIGT BIIA5BURJ IN^FIRSTAPpEAL NQ. 4^A/2003. A&ISING'OUT OF >JDBGEMENri|| ;| AND-aECREE DATED 28^16-2002 PASSEDIN GIVIL SOIT N0. 7-X/2002 BY-THE-CIVIL JtJ33GE CLASS II, PENERA &OAD | JUDGMENiT ^ S.A.No.431 of 2004 Page 1 of3 HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 431 of 2004 APPELLANT Defendant RESPONDENT PlaintiFf Walson VERSUS V. P. Rai [Second Appeal under Section 100 of the Code of Civil Procedure,1908] Present:- Mr. Saifuddin Rajas, Advocate For the appellant. Mr. K.A. Ansari, Sr. Advocate with Ms. Meera Ansari, Advocate For respondent. lt!B: (SB: Hon'ble Mr. T.P. Shsrma, J.) ORDER (Passedon 26/07/2013}

1. This Second appeal under Section 100 of the Code of Civil Procedure, 1908 (For short 'the Code') Rled against the jucgment and decree dated 6.7.2004 passed by the Additional District Judge, (Fast Track Court) Pendra Road, District - Bilaspur in First Appeal No. 4-A/2003 aFFirming thejudgment and decree dated 28.10.P.002 passed by the Civil Judge, Class-ll, Pendra Road, District - Bilaspur in Civil Suit No. 7-A/2002, has been admitted for consideration on Following substantial questions oF law: "(1) Whether the Chhattisgafh provisions Accommodation Confcrol Act did nofc apply to the suit accommodation ? IF yes, whether the judgmeni: and decree for eviction (2) of the appellant passed by the lov,"-r Court and affirmed in .-;ne passed under !:he First Appeal could be construed c; Transfer of Property Act ? Whether the Rnding recorded by both the Courts (3) below that respondent/plaintiFF in the suit accommodation and is liable to be evicted thereFrom is contrary of law ?" appellant tenant oF

2. Suit For eviction oF suit accommodation has been decreed by both the Courts below against the appellanfc in wni;:h appellant has constr'jcted ths house. The appellant has pleaded and adduced evidence that land in S.A. N0.431 of 2004 Page2oF3 question is not owned by the respondent, but it is a Government land and appellant himselF has encroached upon the Covernment land and constructed the house. Both the Courts below have denied the claim of appellant and decreed the suit For eviction under the provisions oF the 'the Act, 1882') i.e. not under the Transfer of Property Act, 1882 (for short C.G. Accommodation Control Act, 1961 (For short 'the Act'1961'). Specific notice Ex./P-9 under Section 106 oF the Act, 1882 has been served upon the respondent. Nothing has been pleaded in the plaint to show that it was a suit under the Act, 1 961. Presenfc appellant has filed the application under Order 41 Rule 27 read with Section 151 oF the Code For taking additional evidence along with copy oF lease of khasra No. 2547/1 granted in Favour oF Jhapo, wife oF the appellant vide lease deed dated 30.06.2005 along with other documents. Present respondent has also Filed reply of the aForesaid application along with copies of documents which revealed that case number shov/n in the alleged lease deed has not been registered in the Court oF Naib Tehsildar. Evidence adduced on behalF oF the parties, pleadings of the parties, Schedule appended to the Acl:, 1961 revealed that Village - Pendra has not been shown in the Schedule appended to rirst Schedule notified under sub- / section (3) of sub-section (1) oF the Act, 1961. Suit Rled on behalf of the respondent was under the TransFer oF Property Act, 1882 and not under the C.G. Accommodation ControlAct, 1961. Anyjudgmentand decree Foreviction under the provisions oFthe Act, 1951 cannot be construed as one passed under the Transfer oF Property Act,

1882. ThereFore, substantial question oF law No.1 is decided as posltive and No.2 is decided as negative. The suit was not under the provisions oF the Act, 1961, but was under the provisions of the Act, 1882. In case of eviction under the provisions of the TransFer of Property Act, 1882 eviction decree may be passed against the lessee but not against: the "». ^s& S.A.No.431 oF 2004 ^r lessor or owner of suit property. In the presenl: case, appellant has filed I.A. No.1/2007 along with one document showing lease of khasra No. 2547/1 in the name oF wiFe oF the appellant, identity oF suit accommodation has been described by the appellant in para 4 of his evidence, which appears to be similar to the copy of lease (patta) filed on behalf of the appellant along with application under Order 41 Rule 27 read with Section 151 of Ehe Code. Respondent has also subsequently claimed the right over accommodation.

6. Considering the rival, oral and documentary claim oF the parties, proposed additional evidence, Further opportunifcy to parties would be necessary. Consequently, at this stage it would not: be possible to dec;de the substantial question oF law No.3. In the lighfc of aForesaid view opportunity to adduce evidence relating to identity oF property and to produce documentary evidence, to take appropriate steps For establishing the identity by appointing Commissioner For local inspection would bejust and proper For the parties.

7. Consequently, the second appeal is partly allowed. Judgment and decree impugned passed by both the Courfcs below are hereby set aside. Case is remitted to the first: instance Court for providing opportunity o^ adducing evidence to establish rights oF the parties and identity of the property and to provide opportunity to file application For appointment oF Commissioner For local inspection. Thereafter the Court oF firsl: instance shall decide the case aFresh.

9. Parties shall bear the costs of appeal. Advocate fee's as per schedule. Parties shall remain in attendance before the trial Court on 21.08.2013. Sd/-;,:/r T.P.Sharma Judge Chandra

. ^ APPE&L UNDER SEC'TION fo0 OF G.P.C. &GAINST THE AND ©ECREE QATED 6^.7-2004 PASSED BY ABOITXONAL DISTRICal JUi3GE_lE'AST-'ERAGK COUST) PENEBA-ROAD, DISTRIGT BIIA5BURJ IN^FIRSTAPpEAL NQ. 4^A/2003. A&ISING'OUT OF >JDBGEMENri|| ;| AND-aECREE DATED 28^16-2002 PASSEDIN GIVIL SOIT N0. 7-X/2002 BY-THE-CIVIL JtJ33GE CLASS II, PENERA &OAD | JUDGMENiT ^ S.A.No.431 of 2004 Page 1 of3 HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 431 of 2004 APPELLANT Defendant RESPONDENT PlaintiFf Walson VERSUS V. P. Rai [Second Appeal under Section 100 of the Code of Civil Procedure,1908] Present:- Mr. Saifuddin Rajas, Advocate For the appellant. Mr. K.A. Ansari, Sr. Advocate with Ms. Meera Ansari, Advocate For respondent. lt!B: (SB: Hon'ble Mr. T.P. Shsrma, J.) ORDER (Passedon 26/07/2013}

1. This Second appeal under Section 100 of the Code of Civil Procedure, 1908 (For short 'the Code') Rled against the jucgment and decree dated 6.7.2004 passed by the Additional District Judge, (Fast Track Court) Pendra Road, District - Bilaspur in First Appeal No. 4-A/2003 aFFirming thejudgment and decree dated 28.10.P.002 passed by the Civil Judge, Class-ll, Pendra Road, District - Bilaspur in Civil Suit No. 7-A/2002, has been admitted for consideration on Following substantial questions oF law: "(1) Whether the Chhattisgafh provisions Accommodation Confcrol Act did nofc apply to the suit accommodation ? IF yes, whether the judgmeni: and decree for eviction (2) of the appellant passed by the lov,"-r Court and affirmed in .-;ne passed under !:he First Appeal could be construed c; Transfer of Property Act ? Whether the Rnding recorded by both the Courts (3) below that respondent/plaintiFF in the suit accommodation and is liable to be evicted thereFrom is contrary of law ?" appellant tenant oF

2. Suit For eviction oF suit accommodation has been decreed by both the Courts below against the appellanfc in wni;:h appellant has constr'jcted ths house. The appellant has pleaded and adduced evidence that land in S.A. N0.431 of 2004 Page2oF3 question is not owned by the respondent, but it is a Government land and appellant himselF has encroached upon the Covernment land and constructed the house. Both the Courts below have denied the claim of appellant and decreed the suit For eviction under the provisions oF the 'the Act, 1882') i.e. not under the Transfer of Property Act, 1882 (for short C.G. Accommodation Control Act, 1961 (For short 'the Act'1961'). Specific notice Ex./P-9 under Section 106 oF the Act, 1882 has been served upon the respondent. Nothing has been pleaded in the plaint to show that it was a suit under the Act, 1 961. Presenfc appellant has filed the application under Order 41 Rule 27 read with Section 151 oF the Code For taking additional evidence along with copy oF lease of khasra No. 2547/1 granted in Favour oF Jhapo, wife oF the appellant vide lease deed dated 30.06.2005 along with other documents. Present respondent has also Filed reply of the aForesaid application along with copies of documents which revealed that case number shov/n in the alleged lease deed has not been registered in the Court oF Naib Tehsildar. Evidence adduced on behalF oF the parties, pleadings of the parties, Schedule appended to the Acl:, 1961 revealed that Village - Pendra has not been shown in the Schedule appended to rirst Schedule notified under sub- / section (3) of sub-section (1) oF the Act, 1961. Suit Rled on behalf of the respondent was under the TransFer oF Property Act, 1882 and not under the C.G. Accommodation ControlAct, 1961. Anyjudgmentand decree Foreviction under the provisions oFthe Act, 1951 cannot be construed as one passed under the Transfer oF Property Act,

1882. ThereFore, substantial question oF law No.1 is decided as posltive and No.2 is decided as negative. The suit was not under the provisions oF the Act, 1961, but was under the provisions of the Act, 1882. In case of eviction under the provisions of the TransFer of Property Act, 1882 eviction decree may be passed against the lessee but not against: the "». ^s& S.A.No.431 oF 2004 ^r lessor or owner of suit property. In the presenl: case, appellant has filed I.A. No.1/2007 along with one document showing lease of khasra No. 2547/1 in the name oF wiFe oF the appellant, identity oF suit accommodation has been described by the appellant in para 4 of his evidence, which appears to be similar to the copy of lease (patta) filed on behalf of the appellant along with application under Order 41 Rule 27 read with Section 151 of Ehe Code. Respondent has also subsequently claimed the right over accommodation.

6. Considering the rival, oral and documentary claim oF the parties, proposed additional evidence, Further opportunifcy to parties would be necessary. Consequently, at this stage it would not: be possible to dec;de the substantial question oF law No.3. In the lighfc of aForesaid view opportunity to adduce evidence relating to identity oF property and to produce documentary evidence, to take appropriate steps For establishing the identity by appointing Commissioner For local inspection would bejust and proper For the parties.

7. Consequently, the second appeal is partly allowed. Judgment and decree impugned passed by both the Courfcs below are hereby set aside. Case is remitted to the first: instance Court for providing opportunity o^ adducing evidence to establish rights oF the parties and identity of the property and to provide opportunity to file application For appointment oF Commissioner For local inspection. Thereafter the Court oF firsl: instance shall decide the case aFresh.

9. Parties shall bear the costs of appeal. Advocate fee's as per schedule. Parties shall remain in attendance before the trial Court on 21.08.2013. Sd/-;,:/r T.P.Sharma Judge Chandra