Madan Mohan Tewary v. Suresh Chandra Singh — 1998 DIGILAW 153 (PAT)

Judgment Loknath Prasad, J. 1. This second appeal is directed against the judgment dated 5.6.1990 passed by 3rd Addl. Judicial Commissioner, Ranchi thereby and thereunder the Title Appeal No. 29/62 preferred by the appellant was dismissed and judgment and decree recorded by Sir. Ram Deo Premjiwan, Addl. Munsif, Ranch, in Title Suit No. 62/74 was confirmed and maintained. 2. The fact, in short, for the purpose of this appellants is that the suit premises consisting of two rooms with varandah and compound wall originally belonged to one Indra Kumar Tiwari who took settlement from the ex-landlord in respect of six decimals of plot No. 740 of village Hassal and constructed a house thereon. Sri Tiwari let out the suit premises to the appellants who are full brothers on monthly rent of Rs. 25.00 per month. Subsequently the entire suit premises was purchased by the plaintiff-respondent by registered sale deed date 14.4.1972 and got his name mutated and issued notice to the defendant-appellants for payment of rent. However, after notice, the aforesaid suit was filed for realization of arrears of rent right from the year 1968 and a prayer was made for eviction of the defendant from the suit premises as he was defaulter and also on the ground of personal necessity because the plaintiff is a practicing Advocate and requires the suit premises for his own was and occupation. 3. The defendant/appellant resisted the suit before the trial Court by filing a written statement and it was contended that there was no relationship of landlord and tenant either between Sri. Indra Kumar Tiwari or the plaintiff and the suit premises was never let out to the defendant-appellants for Rs. 25.00 per month as alleged. The appellant-defendants also set out a case that they got title over the suit premises because these defendants-appellants acquired the suit premises having an area of a 6 decimal from the original ex-landlord Jagdiswar Dayal Singh sometime in the year 1945 on payment of Salamai of Rs. 500.00 and after that they constructed a house thereon. The personal need of the plaintiff has also been denied and as there was no relationship of landlord and tenant, so there is not default on the part of these defendants regarding payment of rent. 4. Learned Addl. 500.00 and after that they constructed a house thereon. The personal need of the plaintiff has also been denied and as there was no relationship of landlord and tenant, so there is not default on the part of these defendants regarding payment of rent. 4. Learned Addl. Munsif decreed the suit and it was held by him that there was relationship of landlord and tenant and as the plaintiff-appellant acquired the suit premises by virtue of sale from Indra Kumar Tiwary on 14.4.1972, so the appellant-defendant became the tenant of the purchaser and as there was default in payment of rent for more than two months, so the suit for eviction was decreed alongwith entire arrears of rent as claimed by the plaintiff-landlord Against that very judgment and decree, the appellants preferred Title Appeal No. 29/82. That was allowed. But the landlord preferred Second Appeal bearing No. 143/83 R. That too was allowed by a Bench of this Court with this observation that the first appellate Court should re-examine the matter as to who had constructed the suit premises and then a record a fresh finding. Ultimately on remand, again the first appellate Court recorded a specific finding in favour of the landlord-respondent and, thus, dismissed the appeal and confirmed the judgment and decree of the learned Addl. Munsif. 5. Due to dismissal of the appeal, appellants-defendants preferred this Second Appeal raising many points again the findings of the appellate Court or the Trail Court, but at the time of admission, only one substantial question was framed for determination, that is, whether the learned Court below could have decided a dispute of title between the parties without directing the plaintiff to deposit the ad valorem Court fee? In view of the substantial question already framed, I am called upon to examine if the suit of the plaintiff-landlord was, in fact, a simple suit regarding relationship of landlord and tenant or an enquiry is necessary for ascertaining the title of the parties, and the suit is title suit in the garb of eviction suit. Because, if it will be a title suit, then there is no two opinion that the plaintiff seeking any relief for adjudicating title has to pay ad valorem Court fee, that too, on the market value of the suit property. 6. Because, if it will be a title suit, then there is no two opinion that the plaintiff seeking any relief for adjudicating title has to pay ad valorem Court fee, that too, on the market value of the suit property. 6. For ascertaining the nature of the suit and reliefs, the pleading of the parties is to be looked into more particularly, the plaint of the plaintiff-respondent 3. On perusal of the plaint and relief claimed, it appears that the plaintiff instituted the suit with this much allegation that one Indra Kumar Tiwari was the original owner and landlord of the appellant and he sold his interest the suit premises to the plaintiff in the year 1972 by registered sale deed, and notice was also sent to the tenant by the ex-landlord for attornment of rent to the purchaser and the purchaser-landlord that is, the present plaintiff also sent a notice for payment of arrears of rent to the defendant and as the rent was not paid, so the plaintiff instituted the suit for eviction on the ground of default. In addition to that an additional claim was made for need of the suit premises on the ground of personal necessity due to the fact that the plaintiff is a practicing Advocate and in course of his profession, he requires the suit premises for his own occupation. Thus the framing of the suit and the relief claimed is apparently that of a suit eviction basing the claim duly on the basis of relationship of landlord and tenant. So prima facie, on perusal of the plaint, it can be said that the plaintiff framed the suit in such a way to give an impression that it is purely a suit for eviction and for realization of arrears of rent on the ground of relationship of landlord and tenant. 7. However, the appellant-defendants set up a case of his own title over the disputed land and the house and the defendants have claimed that they too acquired the suit premises including land having an area of 6 decimals of plot No. 740 from the common ex-landlord Jagdishwar Dayal Singh in the year 1949 on payment of a Salami of Rs. 500.00 and constructed a house and denied the relationship of landlord and tenant. 500.00 and constructed a house and denied the relationship of landlord and tenant. In that view of the matter, the question of relationship of landlord and tenant with the purchaser does not arise at all. So the written statement clearly indicate that there is a dispute regarding the title of the suit premises. In that view of the matter, counsel for the appellant made a submission that it is not a simple suit of landlord for eviction of the tenant rather it is purely a title suit and the Court is bound to enquire the title not incidentally but exhaustively. In the view of the matter, the plaintiff has no escape than to file ad valorem Court fee and failure to pay the requisite Court fee will amount to dismissal of the suit. In support of his contention, he relied upon a case law of our own High Court reported in 1985 PLJR 358 Sheo Shanker Pd. V/s. Darhan Mistri and Ors. Learned Judge in this case clearly held that where in a eviction suit the Court goes into question of title, not incidentally but in a full-fledged manner, then in such a situation the case should be tried as a regular suit and the plaintiff is required to pay ad valorem Court fee and, thus, remitted back the suit itself for payment of ad valorem Court fee and for fresh decision. 8. On the other hand, the counsel for the respondent submitted that if at all the defendant will raise the question of title and deny the title in the written statement and the Court is required to incidentally enquire the same only for limited purpose, that is, for ascertaining the relationship of landlord and tenant, in such situation and more particularly when the framing of the plaint is such and the relief claimed by the plaintiff-landlord is such which clearly indicate that it is purely an eviction suit, then in such a situation, the plaintiff is not bound to pay ad valorem Court fee only for the reason that such plea was taken in the written statement. Apparently the contention has come consideration that if such a plea will be allowed then in every case the moment a denial is made about relationship of landlord and tenant on the question of title and apparently every eviction suit will be deemed to be a title suit. Apparently the contention has come consideration that if such a plea will be allowed then in every case the moment a denial is made about relationship of landlord and tenant on the question of title and apparently every eviction suit will be deemed to be a title suit. In such a situation it will be a paradise for the tenant to merely deny title and landlord will be forced to pay ad valorem Court fee and, thus, deprive him of the statutory provision that if the suit is pure and simple eviction suit, he is required to pay limited Court fee. So the whole test should be framing of the suit itself and if the title is challenged and the plaintiff is not being able to establish the relationship of landlord and tenant, then a limited enquiry, that too, incidentally is to be made and trial court should have no hesitation in rejecting the prayer of eviction because in an eviction sit the Court is not required to make an exhaustive enquiry about the title without payment of ad valorem Court fee. By mere denial of title in the written statement, the plaintiff-landlord is not expected to pay ad valorem Court fee fro the reason mentioned above. 9. On various occasions the question of payment of Court fee in such situation was considered by this Court. In a case of similar nature, a Bench of this Court in a case reported in 1991 Vol. I PLJR 136 Sudhanshu Kumar V/s. Sushil Kumar Bohra it was that if a suit has been filed by the landlord for eviction and the tenant raising question of title in written statement and the landlord has neither raised the question of title nor prayed for a decree on the basis of title and even in such a suit, issues of title framed by the trial Court after the order of the High Court and the framing of the suit clearly indicate that the landlord has simply filed the eviction suit, then in such a situation, if the title is to be enquired incidentally for a limited purpose of making an enquiry about the relationship of landlord and tenant, then the landlord is not required to pay ad valorem Court fee and the principle laid down in Sheo Shanker Pd. case (supra) was distinguished in the context that in Sheo Shankar Pd. case (supra) was distinguished in the context that in Sheo Shankar Pd. Case, landlord himself made a prayer for remanding the suit so that he can pay ad-valorem Court fee to decide the question of title once for all. 10. In a similar case where a landlord filed eviction suit with an allegation that the purchased the suit premises thus he became landlord, the title was challenged by the tenant and relationship of landlord and tenant was denied but the Division Bench of this Court in a case reported in 1992 Vol. 2 PLJR 214 Smt. Kalawati Tripathi V/s. Dayabati Devi clearly held that in such a situation the landlord is not required to pay ad valorem Court fee where the suit is purely an eviction suit and the Court is only required to examine the title incidentally and not exhaustively. 11. The Apex Court also expressed the same view in a case reported in 1994 Vol. 4 SCC 349 Ram Narain Pd. and Anr. V/s. Atual Chandra Mitra and the principle laid down in Sheo Shankar Pd case (supra) which was relied by counsel for the appellant was held not to be a good law. 12. Thus from the discussions made above and from the allegation made in the plaint and the framing of the suit and also from the evidence on the record and the issues raised by the trial Court and the appellant Court, it can be said that the landlord instituted purely an eviction suit for realization of the rent and for eviction. No doubt some narration was put as to how the landlord acquired the suit premises only for the purpose of establishing relationship of landlord and tenant and the Court was also required to incidentally enquire about the title for arriving at a conclusion about the relationship of landlord and tenant. No doubt some narration was put as to how the landlord acquired the suit premises only for the purpose of establishing relationship of landlord and tenant and the Court was also required to incidentally enquire about the title for arriving at a conclusion about the relationship of landlord and tenant. In that view of the matter and in view of the principle laid down by the Apex Court and that of our own Court, as discussed above, I am of the opinion that in such a situation even the denial of title by the defendant-tenant, the landlord is not required to pay advalorem Court fee when the framing of the suit indicate purely an eviction suit and the Court is also not required to examine the title in detail and exhaustive manner and only to examine the same incidentally for arriving at a conclusion about the relationship of landlord and tenant. So this point as formulated is answered is in favour of the respondent. 13. As the suit is maintainable and so far other facts, that is, defaulter in payment of the rent is well established and, thus other points are not to be considered in this Second Appeal. In that view of the matter, it can be said that there is no merit in this appeal and so it is dismissed and the judgment date 5.6.1990 and decree date 16.7.1990 of the fist appellate Court and the judgment date 18.2.1982 passed by Addl. Munsif Ranchi is hereby confirmed and maintained.