ORDER :

Goutam Bhaduri, J.

Heard.

1. Instant petition is against the order dated 28/09/2022 passed by the Chhattisgarh Rent Control Tribunal, Raipur (henceforth 'the Tribunal'). By such order, the Tribunal has affirmed the eviction order dated 4/03/2021 passed by learned Rent Control Authority.

2. The respondent Kamlesh Tiwari filed an application invoking the provisions of Chhattisgarh Rent Control Act, 2011 (henceforth 'the Act of 2011') seeking ejectment on a ground enumerated in Schedule 2 of Section 12(2) of Sr. No.11(a) and (h). The respondent contended that the tenant is habitual defaulter of payment of rent and further has not vacated the premises despite service of notice of a specified period of six months. The Rent Controlling Authority passed an order of ejectment which was affirmed in appeal by the Tribunal. Hence this petition.

3. Learned counsel for the petitioner/tenant Ms. Sharmila Singhai, Sr. Advocate assisted by Shri Avinash Chand Sahu, Advocate would submit that admittedly on the basis of a rent agreement initially executed on 4/09/2006, the petitioner was inducted as a tenant which was for three years which came to an end on 3rd September, 2009. It is stated subsequent thereto a sale agreement was executed by one of the brother of the joint family property namely Ajay Tiwari whereby the suit property/shop was agreed to be sold for an amount of Rs.31 lakhs and Rs.16 lakhs was paid as an earnest amount. Learned counsel would submit that it is the specific case of the petitioner that three shops exist at the spot which came to be partitioned and one shop was agreed to be purchased which fell into the share of Ajay Tiwari, for which eviction is sought for. The agreement was referred as Ex.D-18. It is further submitted that subsequently one of other co-sharer Kamlesh Tiwari had filed a petition after service of notice under the Act of 2011. Learned counsel would further submit that the very fact of non-payment of any rent after 2009 which is saved by the agreement Ex.D-18 would show that no landlord-tenant relationship ever existed between the parties. She would further submit that the notice which were exchanged in between the parties prior to filing of the petition before the Rent Control Authority specific stands have been taken by the petitioner that in respect of the suit property, an agreement of sale exist for which different litigation is pending before the Civil Court and landlord and tenant relation severed. She would further submit that despite such facts on record the Rent Control Authority has failed to appreciate and passed the order of ejectment, therefore both the orders are liable to be set aside.

4. Per contra, Shri B.P. Sharma assisted by Shri Nikhil Parakh, Advocate for the respondent/landlord would submit that admittedly the petitioner/tenant tried to purchase a property of a joint ownership and one of the sharer Ajay Tiwari had agreed to sell his undivided share. He would further submit that agreement to sell undivided share would not extinguish the tenancy which commenced in the year 2009 which would be carried forward. The counsel would submit that determination of tenancy can only be effected by the virtue of Section 111(d) of the Transfer of Property Act which necessarily implies that whole of estate is required to be included. He placed his reliance in (2005) 5 SCC 492 in between Pramod Kumar Jaiswal & Ors. Vs. Bibi Husn Bano & Ors. and (2022) 10 SCC 496 in between Karan Kapoor Vs. Madhuri Kumar to submit that if sale is not registered, it will not extinguish the tenancy right, therefore the doctrine of merger cannot be applied when intermediate estate floats in between. Consequently, the finding of the Rent Control Authority and the Tribunal of existence of landlord and tenancy right is well merited, which do not call for any interference.

5. We have heard the learned counsel for the parties at length, perused the evidence and the records.

6. Perusal of the record shows that before filing o