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2004 DIGILAW 128 (JHR)

Md. Rizwan v. Sardar Niranjan Singh

2004-02-05

P.K.BALASUBRAMANYAN

body2004
ORDER P.K. Balasubramanyan, C.J. 1. Heard counsel for the appellant and counsel for the caveators, the plaintiffs in the suit. Counsel for the appellant submits that the balance Court-fee has been paid and the other defects will be removed during the course of the day. 2. The plaintiffs filed a suit for eviction of the defendant on the plea that the defendant was a tenant of the building; that the rights of the landlord have come to vest in the plaintiffs; that the defendant had defaulted in payment of rent, that he had sub-let the building and that the building was bona fide required for the own occupation of the plaintiffs. The defendant denied the subsistence of any relationship of landlord and tenant between the plaintiffs and the defendant. He pleaded that the plaintiffs had no right over the building which he was in occupation or as an agent of one Dr. Mohammed Mustafa. 3. The suit being one only for eviction under the Bihar Buildings (Lease, Rent & "Eviction) Control Act, 1982, the question that fell for decision was whether there existed a relationship of landlord and tenant between the plaintiffs and the defendant. Obviously, the jurisdiction to decide the question whether there existed such a relationship between the parties was within the purview of the Court dealing with an eviction suit, as clarified by the Supreme Court in the case of Rajendra Tiwary v. Basudeo Prasad and Anr., AIR 2002 Supreme Court 136. The question of title was foreign to a suit for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 and the dispute on title had to be fought elsewhere. The trial Court took the view that there was a dispute regarding title arising in the suit and unless the plaintiffs establish that title first, there could be no decree for eviction or a finding on the existence of the relationship of landlord and tenant between the parties. Thus the trial Court dismissed the suit. The plaintiffs appealed. The lower Appellate Court, after noticing the decision of the Supreme Court referred to above and keeping in mind its jurisdiction in a suit for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, proceeded to decide the question whether the plaintiffs had established the subsistence of the relationship of landlord and tenant between the plaintiffs and the defendant. After referring reasonably exhaustively to the documentary and oral evidence adduced in the case in the context of the pleas raised on behalf of the defendant, the Appellate Court came to the conclusion that the plaintiffs had established the status of the defendant as a tenant of the building and the subsistence of the relationship of landlord and tenant between the plaintiffs, as an assignee of the rights of the landlord, and the defendant. Taking note of the plea in defence that the defendant was a caretaker on behalf of Dr. Md. Mustafa, who was the real title holder, the lower Appellate Court observed that nothing stood in the way of Dr. Md. Mustafa in approaching the Civil Court with a proper suit on title and seeking relief therein based on her title. It may be noted that Dr. Md. Mustafa is also not a party in the present suit. Thus finding that the relationship of landlord and tenant subsisted between the parties and further finding that the rent was in arrears and that the tenant had sub-let the building, the lower Appellate Court passed a decree for eviction under the Act in reversal of the decree of the trial Court. This is what is challenged before me in this second appeal by the defendant. 4. Normally, the question whether subsists the relationship of landlord and tenant between the plaintiffs and the defendant, is a question of fact and a decision on such a question may at times depend upon a question of law as well. But in the case on hand, what fell for decision was whether on the materials furnished, the relationship of landlord and tenant subsisted between the parties. In that context, the relevant materials were taken note of by the lower Appellate Court. I do not find that anything irrelevant was taken note of by the Court or anything relevant was omitted to be considered by that Court. As I also find that Court had not misconstrued any of the documents produced before it or had failed to understand the legal implications of any particular document. Thus going by the normal tests applied in such cases, the finding of fact rendered by the lower Appellate Court can not be said to suffer from any substantial error of law justifying interference by the High Court in Second Appeal under Section 100 of the Code of Civil Procedure. Thus going by the normal tests applied in such cases, the finding of fact rendered by the lower Appellate Court can not be said to suffer from any substantial error of law justifying interference by the High Court in Second Appeal under Section 100 of the Code of Civil Procedure. 5. The learned Senior Counsel appearing for the defendant-appellant argued that the lower Appellate Court has found a case for the plaintiffs which had not been pleaded by them in the plaint. Counsel submits that the case in the plaint was that the vendor of the plaintiffs had let the defendant into possession as a tenant, whereas the evidence that was led was to show that the letting was by the father of the vendor. According to me, even assuming that this submission is correct, the question in this case is really one of deciding whether the defendant was in possession of the building as a tenant or in his capacity as an agent or a caretaker, of Dr. Md. Mustafa in whom the rival title was sought to be set up. In that context, the lower Appellate Court has taken note of the plea in defence of a challenge to the deed of gift executed by the owner of the land and also the plea that the land was held by the person in whose name the property was brought only as a benamidar for her husband. The lower Appellate Court rightly noticed that those were the pleas that have to be established in a title suit and not in an eviction suit. In that context, what is relevant is to consider whether the plaintiffs had actually acquired the rights of his vendor over the building. It is in that context, in the confines of an eviction suit, that the lower Appellate Court came to the conclusion that there exist a relationship of landlord and tenant between the owner of the building and the defendant. Finding further that the ownership had passed on to the plaintiffs, the lower Appellate Court came to the finding that there existed the relationship of landlord and tenant between the parties and the plaintiffs were entitled to seek eviction of the defendant under the Act. In my view, the approach made by the lower Appellate Court to the suit cannot be faulted. In my view, the approach made by the lower Appellate Court to the suit cannot be faulted. The lower Appellate Court has taken care to point out that the decree will not stand in the way of Dr. Md. Mustafa in whom, the rival title was set up by the defendant, to establish his title by approaching the Civil Court and his right to possession over the property including the building. This, in my view, adequately safeguards the interest of Dr. Md. Mustafa who is not a party to the present proceeding and whose caretaker the defendant claims to be. In this situation, I am not inclined to accept the arguments raised on behalf of the appellant that a substantial error of law has been committed by the lower Appellate Court. Hence, this second appeal deserves to be dismissed. 6. I may make it clear that the dismissal of this second appeal and any observation on title by the lower Appellate Court is only incidental and only for the purpose of rendering a finding on the question of the subsistence of the relationship of landlord and tenant between the parties and cannot be considered to be final or conclusive in any suit on title that may be Instituted by Dr. Md. Mustafa in whom a rival title is set up by the defendant. 7. With this clarification, the second appeal is dismissed.