Bishwanath Prasad v. Shanti Devi — 1977 DIGILAW 84 (PAT)

Judgment 1. The defendant preferred second appeal before this Court. 2. The plaintiff filed the suit for eviction of the defendant under S. 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as the Act) on the ground of non-payment of rent as well as on the ground of personal necessity. The case of the plaintiff was that he purchased the house in question by virtue of a registered sale deed dated 11th October, 1971 (Ext. 2). This sale deed was executed by Jagarnath Prasad in favour of the plaintiff. Originally, Jamuna Prasad, the father of Jagarnath Prasad, was the owner of the suit property. Jamuna Prasad died leaving behind him his widow Sheokumari Devi and three sons, namely, Jagarnath Prasad, Baijnath Prasad and Vijay Prasad. It is said that there was a partition in the family and the suit house fell to the share of Jagarnath Prasad. Jagarnath Prasad thus being the owner of the suit property sold the house in question by a registered sale deed dated 11th October, 1971 in favour of the plaintiff. The case of the plaintiff is that the defendant-tenant did not pay rent since 11th October, 1971 up to the date of the institution of the suit (17th August, 1972). The plaintiff also claimed eviction of the defendant on the ground of personal necessity. The defence of the tenant-defendant, on the other hand was that he took house on rent from Sheokumari Devi, wife of Jamuna Prasad, and Baijnath Prasad, son of Jamuna Prasad. The defendant also challenged the validity of the sate deed (Ext. 2). 3. On these facts, the trial court decreed the suit. On appeal, the lower appellate court affirmed the decree of eviction. Both the courts below concurrently held as follows:- (1) That the defendant was not inducted as a tenant by Sheokumari Devi and Baijnath Prasad, but, on the other hand the defendant was inducted as a tenant by Jagarnath Prasad. (2) That the sale deed (Ext. 2) executed by Jagarnath Prasad in favour of the plaintiff was valid and genuine. (3) That the defendant did not pay the rent since 11th October, 1971 up to the date of the institution of the suit. (4) That the plaintiff served a valid notice under S. 106 of the Transfer of Property Act on the defendant. 4. 2) executed by Jagarnath Prasad in favour of the plaintiff was valid and genuine. (3) That the defendant did not pay the rent since 11th October, 1971 up to the date of the institution of the suit. (4) That the plaintiff served a valid notice under S. 106 of the Transfer of Property Act on the defendant. 4. The lower appellate court further held, in appeal, as follows:- (1) That the house in question had fallen to the share of Jagarnath Prasad on partition in the family, and, as such, Jagarnath Prasad was justified in transferring the suit house as owner to the plaintiff. The plaintiff acquired valid title by virtue of the sale deed dated 11th October, 1971 (Ext. 2) which was executed by Jagarnath Prasad in favour of the plaintiff over the house in question (see paragraph No. 32 of the judgment). (2) That the plaintiff was in personal necessity of the suit house (see paragraph No. 44 of the judgment). (3) That the defendant defaulted in paying rent since 18th December, 1971 up to the institution of the suit (see paragraphs Nos. 47 and 49 of the judgment). (4) That the story set up by the defendant that he took the house on rent from Sheokumari Devi and Baijnath Prasad is not correct (see paragraph No. 35 of the judgment). 5. On these facts learned counsel for the appellant contends that the lower appellate court erred in relying upon the notice (Ext. 12) as it is inadmissible in evidence. In this connection, learned counsel for the appellant contends that the copy of the notice (Ext. 12) has not been proved in accordance with law. The notice (Ext. 12) under S. 106 of the Transfer of Property Act was sent by Shri Shambhu Sharan Prasad, Advocate, on the instruction of the plaintiff on 16th June 1972 by registered post to the defendant. The copy of the notice (Ext. 12) was produced before the court. Learned counsel for the appellant contends that the notice was not legally proved by the plaintiff. Hence it is inadmissible in evidence. In this connection, he refers to the evidence of P.Ws. 12, 13 and 16. P.W. 12 proved that he typed the notice. He also proved his signature on the notice. 12) was produced before the court. Learned counsel for the appellant contends that the notice was not legally proved by the plaintiff. Hence it is inadmissible in evidence. In this connection, he refers to the evidence of P.Ws. 12, 13 and 16. P.W. 12 proved that he typed the notice. He also proved his signature on the notice. P.W. 13 was the clerk of Shri Shambhu Sharan Prasad, Advocate, and he proved the signature of Shri Shambhu Sharan Prasad on Ext. 12. P.W. 16 is the husband of the plaintiff and he stated in paragraph No. 7 of his evidence that Shri Shambhu Sharan Prasad sent the notice on 16th June 1972. He also proved that he had filed the copy of the notice in the court. It is on these facts that the learned counsel for the appellant contends that the contents of the notice were not proved in accordance with law. 6. In my opinion, I cannot allow the learned counsel to raise these questions of facts for the first time in the second appeal. Both the courts below concurrently held that Shri Shambhu Sharan Prasad, Advocate, sent the notice on behalf of the plaintiff on 16th June, 1972 which was received by the defendant on 17th June 1972. The defence of the defendant was that he received the registered letter on 17th June, 1972, but it contained plain paper. Both the courts below rejected the plea of the defendant. Both the courts below concurrently held that the defendant received the notice under S. 106 of the Transfer of Property Act on 17th June, 1972. On a perusal of the notice, it is clear that the plaintiff asked the defendant to vacate the house on 1st August, 1972. It is therefore clear that there was a clear fifteen days notice in accordance with the provisions of S. 106 of the Transfer of Property Act. In this connection, learned counsel for the respondent referred to a decision of the Supreme Court in V. Ramachandra Ayyar V/s. Ramalingam Chettiar, AIR 1963 SC 302 . It is therefore clear that there was a clear fifteen days notice in accordance with the provisions of S. 106 of the Transfer of Property Act. In this connection, learned counsel for the respondent referred to a decision of the Supreme Court in V. Ramachandra Ayyar V/s. Ramalingam Chettiar, AIR 1963 SC 302 . In that case, it has been held (at page 302 of AIR):- "Even if the appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous that cannot be said to introduce a substantial error or defect in the procedure." Relying on this decision, I hold that I am unable to interfere with the concurrent findings of fact of the courts below that the notice issued under S. 106 of the Transfer of Property Act was a valid notice in the eye of law. The defendant did not challenge the validity of the notice on the ground that it was inadmissible in evidence. The defendant also did not take this specific point in the grounds of appeal. Hence, I cannot allow him to raise this point of fact for the first time in this Court. Even if he is allowed to raise this point, I am bound to accept the concurrent findings of fact arrived at by the courts below that the notice issued under S. 106 of the Transfer of Property Act was a valid notice in the eye of law. 7. Learned counsel for the respondent further contends that the defendant cannot raise the question of validity of the notice under S. 106 of the Transfer of Property Act on the ground that the defence against ejectment was struck off by the trial court under S. 11-A of the Act. In my opinion, there is sufficient force in the contention of the learned counsel for the respondent. In my opinion, there is sufficient force in the contention of the learned counsel for the respondent. It is relevant to quote S. 11-A of the Act which runs as follows:- "11-A. Deposit of rent by tenants in suits for ejectment:- If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence, against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant." On a perusal of S. 11-A of the Act, it is clear that if a tenant fails to deposit arrears of rent within fifteen days of the date of the order or current rent by the fifteenth day of the next following month, the court shall order to strike out the defence against ejectment. In other words, if the defence against ejectment is struck out, the effect is that the defendant has not defended the claim against ejectment. In the present case, the trial court directed the defendant on 4th June, 1973 to deposit the arrears of rent as well as current rent within fifteen days from the date of the order. In other words, if the defence against ejectment is struck out, the effect is that the defendant has not defended the claim against ejectment. In the present case, the trial court directed the defendant on 4th June, 1973 to deposit the arrears of rent as well as current rent within fifteen days from the date of the order. The defendant failed to comply with the order and as such, the court directed on 22nd June, 1973 that his defence against ejectment be struck out. It is on the basis of this order dated 22nd June, 1973 which was passed under S. 11-A of the Act that the learned counsel for the respondent contends that the defendant cannot be allowed to raise the plea in respect of the validity of the notice under S. 106 of the Transfer of Property Act. 8. In this connection learned counsel for the respondent relied also on a Full Bench decision of this Court in Mahabir Ram V/s. Shiva Shanker Prasad, AIR 1968 Pat 415 . In that case it has been held that the defendant cannot set up any defence with regard to the notice under S. 106 of the Transfer of Property Act by cross-examining the witnesses of the plaintiff. In that case, the Full Bench held as follows in paragraph No. 16 of the judgment (at p. 418 of AIR): "It is open to the tenant to take the plea that the said notice was not given or even if it was given it was invalid on one ground or the other, but it is important to keep in view that the said plea is available to him as a tenant. In the present case, the defence of the petitioner qua tenant has been struck out meaning thereby that he cannot set up any defence with regard to the said notice under S. 106 by cross-examining the witnesses of the plaintiffs." In other words, the Full Bench held that in view of the fact that the defence of the tenant has been struck off under S. 11-A of the Act, and as such he cannot be allowed to challenge the validity of the notice under S. 106 of the Transfer of Property Act. Relying on this Full Bench decision I hold that the defendant is not entitled to raise the plea about the validity or admissibility of the notice in view of the order passed under S. 11-A of the Act. 9. Learned counsel for the appellant contends that the plaintiff is required to prove that a notice under S. 106 of the Transfer of Property Act was given by the landlord to tenant before the institution of the suit. In this connection he relies on a Full Bench decision of this court in Niranjan Pal V/s. Chaitanyalal Ghosh, AIR 1964 Pat 401 . In that case, it has been held that before the institution of the suit for eviction, the plaintiff is required to determine the tenancy by giving a notice under S. 106 of the Transfer of Property Act. In that case, no notice was sent by the plaintiff-landlord under S. 106 of the Transfer of Property Act (see paragraph No. 32 of the said judgment). In view of the fact that no notice was sent under S. 106 of the Transfer of Property Act, therefore, the Full Bench has held that before instituting a suit for eviction, the plaintiff is required to determine the tenancy by giving a notice under S. 106 of the Transfer of Property Act. It is a settled law that the plaintiff is required to prove that he sent the notice under S. 106 of the Transfer of Property Act before instituting the suit for eviction. In the present case, the notice (Ext. 12) was sent under S. 106 of the Transfer of Property Act before filing the suit. Learned counsel for the appellant contends that there is a conflict of views in the two Full Bench decisions, namely, Mahabir Ram V/s. Shiva Shankar Prasad, AIR 1968 Pat 415 and Niranjan Pal V/s. Chaitanyalal Ghosh, AIR 1964 Pat 401 . In my opinion, there is no conflict between the two decisions. In the earlier Full Bench decision in Niranjan Pals case, it has been held that before the institution of the suit the plaintiff is required to determine the tenancy by giving a notice under S. 106 of the Transfer of Property Act. In the later Full Bench decision in Mahabir Rams case, it has been held in regard to the effect about the order passed under S. 11-A of the Act. In the later Full Bench decision in Mahabir Rams case, it has been held in regard to the effect about the order passed under S. 11-A of the Act. The earlier Full Bench decision relates to an act done by the plaintiff before the institution of the suit. The later Full Bench decision deals with the matter after the filing of the suit. In my opinion, there is no conflict, as already stated by me, in the two decisions. In the later Full Bench decision, it has been held that once the defence has been struck out under S. 11-A of the Act, the defendant cannot raise the question of validity of the notice for the simple reason that his defence has been struck out. In the present case, it was the defence of the tenant that there was no valid service of the notice under S. 106 of the Transfer of Property Act. In view of the later Full Bench decision, the defendant-tenant cannot raise the question of validity of the notice for the simple reason that his defence has been struck out under S. 11-A of the Act. If it is so, the defendant-tenant cannot raise the plea about the validity of the notice or about the admissibility of the notice in view of the order passed under S. 11-A of the Act. 10. In the present case, the lower appellate court held that the defendant defaulted in payment of rent since 18th December, 1971 up to the date of the institution of the suit. The lower appellate court also held (1) that the plaintiff was in personal necessity of the house, (2) that the sale deed (Ext. 2) which was executed by Jagarnath Prasad in favour of the plaintiff was a valid sale deed, and (3) that the notice under S. 106 of the Transfer of Property Act was a valid notice which was sent by the advocate on 16th June, 1972 and the same was received by the defendant on 17th June, 1972. In view of these findings of fact, I am unable to interfere with the judgment of the lower appellate court. 11. In the result, the appeal is dismissed. The parties will bear their own costs of this Court.