JUDGMENT

Sanjay K Agrawal, J. - This second appeal was firstly admitted on 25/07/1994 by formulating the following substantial question of law :-

"1. Whether the Courts below committed an error in ignoring the ground of disclaimer of title because that plea was taken by the appellants only by way of amendment, but not in the original plaint ?"

Thereafter, again by order dated 16/09/2019 read with order dated 18/10/2019, an additional substantial question of law was framed, which is as follows :-

"2. Whether both the Courts below were justified in not granting decree in favour of the plaintiffs under Section 12 (1) (f) of the Chhattisgarh Accomodation Control Act, 1961 after having recorded a finding that they have no other alternative reasonably suitable accomodation for their non-residential purpose of their own at Raigarh ?"

(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)

2. Plaintiffs filed Civil Suit No. 87-A/89 for eviction, arrears of rent and damages against original defendant namely Sagarmal Beriwal stating inter alia that suit accomodation i.e. House No. 193/1 situated at Ward No. 17, Sadar Hatri Road, Hatri Chowk, Raigarh, of which plaintiffs have acquired title after the death of their father namely Sagarmal Agrawal, was let out by the plaintiffs to the defendant for non-residential and business purpose for monthly tenancy of Rs. 37/-. Later on, defendant - Sagarmal Beriwal shifted his business to his residential house and the suit accomodation was not used by him. Thereafter, when plaintiff No. 1 became major and required the suit accomodation bonafidely as he had no suitably reasonable alternative accomodation in the township of Raigarh, the defendant declined to deliver the possession of the suit accomodation to him for which a legal notice was served upon the defendant terminating his tenancy. It was further pleaded that some portion in the backside of the suit accomodation was let out to one Mahabir Prasad Agrawal and after getting the vacant possession of the whole suit accomodation, plaintiff No. 1 would set up his business in the suit accomodation after getting necessary repairs done.

3. Original defendant - Sagarmal Beriwal filed his written statement denying the plaint allegations stating that suit accomodation was let out on rent by H.U.F. Khyaliram Gajanand to H.U.F. Ramchand Kashiram, however, he did not specifically deny the title/ownership of the plaintiffs over the suit accomodation stating that in a suit for eviction, question of title is not relevant and further pleaded that tenancy was on annual basis.

4. Plaintiffs proceeded ex-parte before the trial Court and an ex-parte decree under Sections 12 (1) (f) and 12 (1) (h) of the M.P./C.G. Accomodation Control Act, 1961 was passed but ultimately, it was set aside and the matter was remitted to the trial Court for adjudication on merits and thereafter, learned trial Court framed as many as nine issues and upon consideration of oral and documentary evidence on record vide judgment and decree dated 07/03/1991 dismissed the suit of the plaintiffs though holding that relationship of landlord and tenant existed between plaintiffs and defendant and that plaintiffs are owners of the suit accomodation and they have no other alternative accomodation in the township of Raigarh in their possession and the need of plaintiff No. 1 for the suit accomodation is not denied.

5. On Civil Appeal No. 17-A/91 being preferred by the plaintiffs against the judgment and decree of the trial Court, learned first appellate Court upheld the findings of the trial Court and dismissed the appeal of the plaintiffs by judgment and decree dated 08/10/1993. During the pendency of the first appeal, an application under Order 41 Rule 27 was filed by the defendant stating that plaintiff No. 1 has been placed in possession of the suit shop namely 'Mohan Medical Store' on 13/03/1991 therefore,