Md. Kamruddin v. Brijnandan Prasad — 1999 DIGILAW 1246 (PAT)

Judgment P.K.Deb, J. 1. his appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 14-3-1985 passed by the Additional Subordinate Judge, Biharshariff in Title Appeal No. 71 of 1983 whereby and whereunder the judgment and decree passed by the Additional Munsif, Biharshariff in Title Suit No. 69 of 1982 has been affirmed. It may be stated here that by the two impugned judgments, there is concurrent findings to the effect that the plaintiff-appellant could not establish the relationship of land-lord and tenant between the plaintiff and defendant No. 1 and hence dismissal of eviction was recorded by the Courts below. 2. The facts in this case are complicated but the admitted position may be stated below. Defendant No. 5 Md. Mutsirn was the original owner of the suit property. Defendant No. 1 Brijnandan Prasad @ Moti was inducted as a tenant in the house constructed over the suit land and there was admitted relationship of land-lord and tenant of the suit shop between the defendant No. 5 and defendant No. 1. In the year 1977, the defendant No. 5 executed a deed of mortgage in the form of Baibulbafa dated 8-7-1977 in favour of defendant No. 4 on a consideration of Rs. 8,400.00 . On such Baibulbafa deed, it was claimed by the plaintiff that the said deed was farzi deed in the name of defendant No. 4 but actually it was done in favour of the plaintiff and the said deed was also termed by the plaintiff as a mortgage by conditional sale. The term/the time frame mentioned in that deed which has been marked as Ext. 1 in the deed for three years. It was also claimed by the plaintiff that as per terms and conditions of that mortgage by conditional sale, the plaintiff was given possession of the property with the tenant over it and the rent was to be collected by the plaintiff. It was also stated in the plaint that after the deed was executed proper atonement was made regarding the tenancy of defendant No. 1 to the plaintiff and the defendant No. 1 was paying rent to the plaintiff. In the year 1980, the defendant No. 5 had sold the suit property in favour of defendant No. 1 by registered deed of sale dated 16-7-1980 and after purchase the defendant No. 1 wanted to deposit the amount of Rs. In the year 1980, the defendant No. 5 had sold the suit property in favour of defendant No. 1 by registered deed of sale dated 16-7-1980 and after purchase the defendant No. 1 wanted to deposit the amount of Rs. 8,400.00 to the plaintiff but the same has been refused. The plaintiff has now come up with a simple suit for eviction against the defendant No. 1 on the basis of his Baibulbafa deed on the ground of defaulter and also for arrears of rent together with the mesne profits. There was also plea of personal necessity from the plaintiffs side. The defendant No. 1 had contested the suit by placing his case that there was no relationship of land lord and tenant between the plaintiff and defendant No. 1 and that the plaintiff was never have any interest with the suit property and that the title of the property had already been transferred by defendant No. 5 to defendant No. 1. Both parties adduced both oral and documentary evidence. Defendant No. 4 in whose name the Baibulbafa deed existed and supported the case of the plaintiff to the effect that she was not a person interested in the suit property but the deed was although in her favour but it actually belonged to the plaintiff as Farzider. During the course of trial, the defendant No. 1 had produced a series of rent receipts by which he wanted to show that till the date of his purchase, he remained as a tenant under the defendant No. 5 by paying rent on receipt of valid discharge receipts and that after his purchase in the year 1980 his tenancy had already been merged with his title. It was stoutly denied that there was any relationship of land-lord and tenant between the plaintiff and defendant No. 1 nor there was any atonement of the tenancy to the plain-tiff or defendant No. 4 after the so called Baibulbafa deed was executed by defendant No. 5. Both the Courts below after consideration of the oral and documentary evidence came to the findings that no relationship of landlord and tenant was established between the plaintiff and defendant No. 1 even after Baibulbafa deed was executed in the year 1977. Both the Courts below after consideration of the oral and documentary evidence came to the findings that no relationship of landlord and tenant was established between the plaintiff and defendant No. 1 even after Baibulbafa deed was executed in the year 1977. It was further held that the plaintiff had never become owner of the suit property on the basis of the deed of mortgage on conditional sale even after the period mentioned in the deed was over. It was also disbelieved by the Courts below regarding oral evidence being adduced from the side of the plaintiff regarding the establishment of the relationship of land-lord and tenant between the plaintiff and defendant No. 1 after 1977 and that rent was being paid by defendant No. 1 to the plaintiff. On such findings being arrived at both the Courts below held that as there was no relationship of land-lord and tenant between the plaintiff and defendant No. 1, no relief can be granted in the present eviction suit. But, while deciding that factum the appellate Court had gone to the extent that the plaintiff had not acquired any title over the suit property rather the title remains with defendant No. 1. 3. While admitting this appeal vide order dated 26-7-1985 a Bench of this Court formulated the following substantial question of law as required under Section 100 of the Code of Civil Procedure. Whether the Courts below acted illegally in holding the appellant not to be the land-lord of the contesting defendant after rejecting Ext. 1, the deed of mortgage by conditional sale. 4. Mr. Asghar Hussain, Senior Counsel appearing for the plaintiff-appellant has streneously argued that the Courts below had failed to appreciate the status of the parties as per the legal position on the basis of Baibulbafa deed and the deed of purchase by defendant No. 1 from defendant No. 5. The position remains that before the purchase was made by defendant No. 1 from defendant No. 5 about the suit property there was already mortgage-deed executed by defendant No. 5 in favour of defendant No. 4 vis-a-vis the plaintiff as a Farzidar and the said deed was termed as a Baibulbafa deed meaning thereby it was mortgaged by a conditional sale. The factual aspect remains that even if that mortgage-deed is not construed to be a mortgage conditional sale but a simple mortgage then also the legal position remains that even after purchase by defendant No. 1 of the suit property from defendant No. 5, the said purchase shall be construed as a purchase subject to mortgage to the plaintiff. Whether the plaintiffs title became absolute on the basis of the Baibulbafa deed or the mortgage by conditional sale was not a subject-matter to be dealt within the limited scope of eviction suit. If as per terms and conditions of Baibulbafa deed the title has been transferred to the plaintiff on expiry of the period then the plaintiff might be construed as an absolute owner and in that case, the defendant No. 1s purchase being a subsequent purchase would not confer any title to him. But, this depends only on the interpretation of the terms and conditions of the Baibulbafa deed. There is no scope to decipher the terms and conditions of Baibulbafa deed in the eviction suit between the plaintiff and defendant No. 1. On the face of the concurrent findings of the Courts below, there is no scope to enter into that factum regarding relationship of land-lord and tenant between the plaintiff and defendant No. 1 by this second appellate Court. Thus, the position remains that the defendant No. 1 is not a tenant under the plaintiff. But in that case also, Mr. Hussains submission is that because of the deed of mortgage by conditional sale, in the suit the plaintiff is entitled to get a relief in the form of equitable relief as contemplated under Order VII, Rule 7 of the Code of Civil Procedure. It appeals that the appellate Court made an attempt to enter into the disputed point of law regarding the absolute ownership of the plaintiff or the defendant over the suit property but that was not possible within the limited scope of eviction suit. In that way, the present suit in the form it has been filed was rightly held to be not maintainable and the plaintiff is not entitled to get eviction of the defendant from the suit premises on the relationship of land-lord and tenant. In that way, the present suit in the form it has been filed was rightly held to be not maintainable and the plaintiff is not entitled to get eviction of the defendant from the suit premises on the relationship of land-lord and tenant. But, still then there remains the disputed point as to who shall be construed to be the owner of the suit property on the basis of the Baibulbafa deed and the purchaser-deed of defendant No. 1 subsequently executed. That can be considered if the suit is being transformed into a regular suit on payment of ad valorem Court fee as required under the law. It can be done by this Court by rejecting the Second Appeal and confirming the judgments of both the Courts below as no relief can be available in the form of an eviction suit. But, the position remains that the parties have fought for a life time regarding their title over the suit property and by this time the limitation may also come as a barrier if liberty is given for filing a fresh suit by the plaintiff. 5. In my view, if proper Court fees are paid and the plaint is being transformed into a regular suit, if necessary, by some amendments therein then the dispute between the parties may be set at rest for ever. It may be mentioned here that even if no absolute title had been transferred to the plaintiff on the basis of Baibulbafa deed then also the purchase of defendant No. 1 shall be subject to the mortgage and what relief can be given to the parties can be construed if the suit is framed in that way. I do not want to enter into the merits more as the matter can be fought out in proper way before the Court below. Thus, the dismissal orders recorded by the Court below are hereby set aside and the matter is sent back to the original Court for proceeding according to law afresh giving opportunity to the plaintiff-appellant to pay ad valorem Court fee and to transform the suit into a regular suit and if necessary by making amendment in the plaint. If such amendment is made, defendant No. 1 and other defendants should also be given opportunity to file additional written statement. 6. Thus, this appeal is allowed with the observation and direction as mentioned above. If such amendment is made, defendant No. 1 and other defendants should also be given opportunity to file additional written statement. 6. Thus, this appeal is allowed with the observation and direction as mentioned above. In the circumstances, no order as to costs.