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2003 DIGILAW 179 (PAT)

Anil Kumar Sinha v. Most. Veena Devi

2003-02-14

NAGENDRA RAI

body2003
Judgment 1. The tenant is the petitioner in this civil revision application against the judgment and decree of the appellate Court dated 25th of September, 2002 passed in Eviction Appeal No. 2 of 1994 whereby the appellate Court has dismissed the appeal against the judgment and decree of eviction passed on 10th September, 1983 in Eviction Suit No. 1 of 1987. 2. The subject matter of eviction is house standing over 4 Dhurs of land under Khesra No. 832/41, Khata No. 63 in Mohalla-Bagh Taj Khan @ Pokhra Ward No. 11, P.S. Hajipur town, District Vaishali. The eviction suit was filed under section 11(1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (herein after referred to as the Act) for default in payment of arrears of rent for more than two months. The suit was filed by Nand Lal Choudhary who died during pendency of the suit and substituted by his heirs and legai representatives. The suit premises admittedly belonged to Choudharain, mother of the plantiff Nand Lal Choudharian and her floor and second floor were in possession of aforesaid Binda Choudharian and her family members and after her death is in possession of other family members. There are shops on the ground floor, some of which are in their occupation. The aforesaid Binda Choudharian on 1.1.1971 let out the suit premises on monthly rental of Rs. 125/- to the defendant tenant Ashwani Kumar Verma who executed Kiryanama in favour of Binda Choudharain. The said Binda Choudharain died in the year 1984 leaving behind original plaintiff Nand Lal Choudhary who also stated above died leaving behind his heir and legal representatives during pendency of the suit. The original tenant Ashwani Kumar Verma and his father opened a cycle shop in the suit presmises. Thereafter they opened another shop in the name of Progressive Sales Agency in partnership with Dinesh Kumar Srivastava. Thereafter they closed and opened another business. They were paying rent to aforesaid Binda Choudharain since 1980. Thereafter the rent was enhanced from Rs. 125/- to Rs. 250/- and defendants/petitioners started paying the same since January, 1981 and rent receipts were granted to them. Since January, 1984 the defendants/tenants made a default in payment of rent. Thus, they are defaulter for more than two months. Hence the suit. 3. Thereafter the rent was enhanced from Rs. 125/- to Rs. 250/- and defendants/petitioners started paying the same since January, 1981 and rent receipts were granted to them. Since January, 1984 the defendants/tenants made a default in payment of rent. Thus, they are defaulter for more than two months. Hence the suit. 3. The suit was contested only by defendant/petitioner No. 1 Anil Kumar Sinha and his wife defendant/petitioner No.2 Smt. Indumati Sinha. Subsequently the name of Defendant Ashwani Kumar Verma was deleted in pursuance of an order of this Court in Civil Revision No. 1492 dated 24.9.1991. They admitted that the suit premises belonged to Binda Choudharain. Defendant No. 4/petitioner No.2 Smt. indumati Sinha was tenant of Binda Choudharain and she was paying rent to her and after her death in January, 1984 she started paying rent to Khakhiya Choudharain, one of the daughters of Binda Choudharain as the same was allotted to her in a family arrangement. She regularly paid the rent to Khakhiya Choudharain and thus no default has occurred. According to them rent @ Rs. 125/- was enhanced to only Rs. 200/- and not Rs. 250/- as alleged by the plaintiffs/opposite parties. 4. The plaintiffs/opposite parties examined 17 witnesses and the defendants examined 18 witnesses and they have also filed documentary evidence and both the courts below having considered the same came to the conclusion that there was relationship of landlord and tenant between the plaintiffs and the defendants and the original plaintiff Nand Lal Choudhary was the only son of Binda Choudharain and Khakhiya Choudharain was not the daughter of Binda Choudharain and as no rent was paid since 1984 to the landlord Nand Lal Choudhary, the defendants have defaulted in payment of rent for more than two months and thus they are liable for eviction under Section 11 (1)(d) of the Act. 5. Learned counsel appearing for the petitioners submitted that in a suit for eviction, the Court cannot decide the question of title and accordingly both the Courts below have committed error on record in deciding the question of title and holding that Khakhiya Choudharain was not the daughter of Binda Choudharain to whom the defendants/petitioners were paying rent regularly. He further submitted that the appellate Court has not considered the relevant evidence and thus has committed material irregularity in exercise of jurisdiction in upholding the order of the trial Court. He further submitted that the appellate Court has not considered the relevant evidence and thus has committed material irregularity in exercise of jurisdiction in upholding the order of the trial Court. He also submitted that once she has been paying rent to one of the co-sharers, landlord, namely Khakhiya Choudharain, there was no default in payment of rent and accordingly, both the courts have erred in law in decreeing the suit for eviction in default of payment of rent for more than two months. 6. Learned counsel appearing for opposite party No. 6 on the other hand submitted that both the courts below having considered the matter have found the relationship of landlord and tenant between the parties and have also found the default in payment of rent having occurred for more than two months. This court in exercise of revisional jurisdiction will not reappraise the material and take a different conclusion. The Courts below have not decided the question of title, on the other hand to decide the question as to whether there is relationship of landlord and tenant between the plaintiff and defendant or not have considered the evidence and found that the case set up by the tenant that the landlord is a different person was not correct one. He also submitted that once the relationship of landlord and tenant has been established and admittedly the tenants have not paid rent to the real landlord since 1984, the Courts below rightly decreed the suit for eviction on the said ground. 7. In Civil Revision this Court will interfere only when there is jurisdictional error in the sense that it has exceeded its jurisdiction or has failed to exercise jurisdiction vested in it or has acted in exercise of jurisdiction illegally or with material irregularity. In exercise of revisional power, the Court cannot reappraise the evidence as appellate Court nor can it interfere with the order only on the ground that on appreciation of evidence a different view than what has been taken by the Courts below could be taken. 8. The defendants/petitioners have admitted that petitioner No. 2 Smt. Indumati Sinha was inducted as tenant by Binda Choudharain, the mother of original plaintiff. Their case is that after her death property fell into the share of Khakhiya Choudharain, one of the daughters of aforesaid Binda Choudharain and she has been paying rent to her since 1984. 8. The defendants/petitioners have admitted that petitioner No. 2 Smt. Indumati Sinha was inducted as tenant by Binda Choudharain, the mother of original plaintiff. Their case is that after her death property fell into the share of Khakhiya Choudharain, one of the daughters of aforesaid Binda Choudharain and she has been paying rent to her since 1984. Both the Courts considered the evidence in detail and found that Binda Choudharain has only one son, namely, Nand Lal Choudhary, the plaintiff, and she had no daughter. In this connection, they have relied upon documentary evidence also. Learned counsel for the petitioners could not be able to assail the aforesaid finding. In that view of the matter, it is proved that after the death of Binda Choudharain, Nand Lal Choudhary became the landlord and the rent should have been paid to him. It is true that the Court cannot decide the complicated question of title in a suit for eviction, but to decide the question as to who is landlord the Court can go into the evidence and give a finding as to who is the landlord of the premises. The Court has considered the evidence from this point of view and accordingly, the learned counsel for the petitioners is not right in submitting that the court below has gone into the question of title in a suit for eviction. 9. From the perusal of the judgment of the appellate Court it is clear that though it is a judgment of affirmance, but the Court has gone into each and every piece of evidence and has agreed with the finding of the trial Court. Learned counsel for the petitioners could not point out any material evidence which was overlooked and not considered by the appellate Court. Thus, the appellate Courts judgment also does not suffer from any legal infirmity. Once it is admitted that after the death of Binda Choudharain, Nand Lal Choudhary became the landlord and it is admitted position that since 1984, no rent has been paid to aforesaid Nand Lal Choudhary. Thus, the defendant/tenant has become defaulter in payment of rent in terms of provision of Section 11(1) (d) of the Act. 10. Accordingly, no case for interference with the impugned order is made out. The Civil revision application is dismissed.