Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 598 (JHR)

Md. Siraj Mistri v. Mazahrul Haque

2003-05-09

P.K.BALASUBRAMANYAN

body2003
ORDER P.K. Balasubramanyan, C.J. 1. The defendant in a suit for eviction under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, who was also the plaintiff in a suit for specific performance of an agreement for sale of the building in question, is the appellant in both these second appeals. He is herein after referred to as the tenant. 2. The suit for eviction was filed by the respondents the landlords mainly on the plea that the building was let out to the appellant in the year 1970 on a monthly rent of Rs. 25/- that the appellant had committed default in payment of rent and that the respondents required the building for their personal occupation. The respondents prayed for a decree for eviction of the tenant from the suit premises and also for a decree for arrears of rent for three years together with costs of the suit and other incidental reliefs. 3. The suit was resisted by the appellant by pleading that even though originally he, was a tenant of the building, and he was allowed to occupy the building in question on payment of a monthly rent up to January 1981, the landlords had, thereafter, agreed to sell the building to him under an agreement for sale, that the occupation of the appellant pursuant to the agreement for sale was in the capacity of an intended vendee, that the alleged personal requirement set up by the respondents was not true, that the rent was not in arrears and that the suit was liable to be dismissed. 4. In his turn, the appellant also filed a suit for specific performance of the agreement for sale invoking the Specific Relief Act and seeking a decree in that behalf. The landlord denied the agreement for sale set up. 5. 4. In his turn, the appellant also filed a suit for specific performance of the agreement for sale invoking the Specific Relief Act and seeking a decree in that behalf. The landlord denied the agreement for sale set up. 5. The trial Court on the basis of material available, held that there came into existence the relationship of landlord and tenant between the parties that even going by the pleadings of the tenant the rent was in arrears, but the evidence on the side of the landlord was sufficient to prove that the rent was in arrears from June 1979, that on the evidence of PW 9 arid the other circumstances available in that case, the personal requirement set up by the landlord was bona fide and the landlord was entitled to a decree for eviction with arrears of rent. On the agreement for sale set up by the tenant the Court found that the agreement for sale has not been proved and that the tenant was not entitled to the projection of Section 53A of the Transfer of Property Act. 6. In the suit for specific performance of the agreement for sale, the trial Court held that the material witnesses have not been examined to prove the agreement set up that since the two experts to whom the disputed document was sent for opinion oh a comparison of signatures had differed in their opinions, it was open to that Court to compare the signatures on the documents with other admitted signatures in terms of Section 73 of the Evidence Act and on such comparison of the disputed agreement for sale, it was not possible to hold that the landlord had executed the agreement for sale, that there was even a possibility that the landlord was a minor on the date the alleged agreement for sale was entered into and in the circumstances taken as a whole, it could not be held that the tenant had proved the agreement for sale set up by him. The trial Court also found that the appellant had not pleaded and that he was and he had always been ready and willing to perform his part of contract. Thus the trial Court dismissed the suit for specific performance of contract for sale filed by the appellant. The trial Court dismissed the suit for specific performance. 7. The trial Court also found that the appellant had not pleaded and that he was and he had always been ready and willing to perform his part of contract. Thus the trial Court dismissed the suit for specific performance of contract for sale filed by the appellant. The trial Court dismissed the suit for specific performance. 7. The appellant filed two appeals against the judgments and decrees of the trial Court. Before the First Appellate Court also the essential question which fell for consideration was the question whether the tenant had proved the agreement for sale set up by him. 8. The First Appellate Court, on a re-appreciation of the facts, the evidence and the circumstances of the case came to the conclusion that the trial Court was justified in holding that the appellant has not proved the agreement for sale set up by him. Proceeding further, it found that even going by the plea of the tenant the rent was in arrears and that there was no reason to interfere with the decree for eviction passed on the ground of arrears of rent. Apparently the finding that the landlord bona fide required the building and was entitled to a decree for possession was not seriously challenged before the First Appellate Court. Thus, the First Appellate Court confirmed the decrees passed by the trial Court and dismissed both the appeals. 9. I may notice here that for some reason which is not clear the suits were separately tried and the appeals were also separately heard, but I think that this is a fit case where the second appeals should be jointly heard and disposed off. 10. The learned counsel for the appellant made a strenuous attempt to satisfy this Court that the decision of the Courts below was vitiated by substantial errors of law. With due respect to learned counsel, I may notice that the finding that appellant has failed to prove the genuineness of agreement for sale set up him is a finding of fact. Of course two different opinions were given by the two experts to whom the documents referred to and the Courts were called upon to render a decision on that question. Of course two different opinions were given by the two experts to whom the documents referred to and the Courts were called upon to render a decision on that question. Under Section 73 of the Indian Evidence Act, the Court had the power to compare the signatures and to come to a decision regarding the genuineness of the document based on his entire evidence especially when the experts had differed in their opinions. The Court was required to give a decision on the question one way or the other. In that process the Court was justified in adopting the course, it did to decide the issue. Therefore, the procedure adopted by the trial Court and by the First Appellate Court cannot be said to be vitiated. I may also notice that the crucial witnesses to the agreement for sale set up were not examined and the report was also relied on by the trial Court and by the Appellate Court. On the evidence the trial Court and the Appellate Court were justified in not accepting the case of the appellant regarding the agreement for sale set up by him. On the whole it cannot be said that the Courts below have failed to consider any relevant item of evidence or have acted on any Irrelevant item of evidence or have misconstrued any document of title or have misread or misunderstood the effect of the oral or documentary evidence in the case, so as to enable this Court to say that the finding of the fact rendered by the Courts below is vitiated by a substantial error of law. The Courts below have asked the witness the right question and have made a proper approach to the case for coming to the conclusion that the agreement for sale is not proved. On the materials I also find that the appellant had failed to prove the agreement for sale set up by him. In such a situation, I am not able to accept the argument of learned counsel for the appellant that a substantial error of law has been committed by the Courts below in arriving at the finding that the appellant has Tailed to prove the agreement for sale set up by him. In such a situation, I am not able to accept the argument of learned counsel for the appellant that a substantial error of law has been committed by the Courts below in arriving at the finding that the appellant has Tailed to prove the agreement for sale set up by him. Once that finding is accepted, it is clear that the appellant having admitted the relationship of the landlord and tenant between the parties, the only questions were whether rent was in arrears and whether the bona fide personal requirement set up was established. Once the agreement for sale was not proved the appellant continued as a tenant of the building. The finding that the appellant is holding the building as a tenant is also justified and does not suffer from any substantial error of law. 11. Ultimately, the learned counsel for the appellant argued that the finding that the appellant was a defaulter in payment of rent was not justified. Here again it appears from the evidence of the appellant that even according to him he was allowed to continue in the building as a tenant up to January 1981 on payment of monthly rent and thereafter he had not paid rent. The case of the respondents was that the rent has not been paid from June 1979. The landlord examined himself as PW 9 and examined other witnesses in support of his plea that the rent was in arrears as claimed by him. The trial Court as well as the First Appellate Court on that evidence held that the appellant had not paid rent subsequent to June 1979 and came to the conclusion that the landlord had proved that the rent was in arrears as claimed. In the plaint it could not be shown that the finding suffered from any error of law. 12. In any view of the matter, this finding of fact given by the trial Court and by the First Appellate Court does not suffer from any substantial error of law, which calls for interference by this Court in second appeal. 13. In the plaint it could not be shown that the finding suffered from any error of law. 12. In any view of the matter, this finding of fact given by the trial Court and by the First Appellate Court does not suffer from any substantial error of law, which calls for interference by this Court in second appeal. 13. As regards the finding of bona fide requirement, the trial Court accepted the evidence of PW 9, the landlord and came to the conclusion that the claim made by him for eviction was bona fide and a decree for partial eviction undej the proviso to Section 11(1)(c) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, would not satisfy his requirement. As noticed already that finding of the trial Court was not even seriously canvassed before the First Appellate Court, the Appellate Court affirmed that finding. The said finding cannot be said to be erroneous. In any event on the materials it cannot be said that the finding of the trial Court and that of the First Appellate Court suffers from any substantial error of law. 14. In this situation, I am not satisfied that these second appeals deserve to be admitted on the basis that substantial questions of law arise for decision. Hence, I decline to admit these Second Appeals, They are dismissed.