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2004 DIGILAW 259 (JHR)

Anil Kumar Verma v. Urmila Devi

2004-03-11

P.K.BALASUBRAMANYAN

body2004
ORDER P.K. Balasubramanyan, C.J. 1. The defendants are the appellants. The suit filed by the plaintiff was one for eviction under Section 12 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 which corresponds to Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. The ground was default in payment of rent. The defendants denied the existence of a relationship of landlord and tenant between the parties. They pleaded in the written statement that the original owner of the property was one Bhagwan Prasad who had agreed to sell the property to the predecessor of the defendants and had executed an agreement to sell dated 8.4.1973 in that behalf fixing a total consideration of Rs. 6,001/- as purchase price and their predecessor had paid a sum of Rs. 1,500/- towards the agreed consideration and had gone into possession. There did not exist the relationship of landlord and tenant between the parties. The suit was misconceived. It may be noted that the plaintiff claimed on the basis of a sale deed executed by Bhagwan Prasad, the owner of the property. 2. The Trial Court held that the agreement for sale relied on by the defendants was not proved to be genuine. It found that the title had passed to the plaintiff. It found that the predecessor to the defendants had been let into possession by Bhagwan prasad, the admitted owner of the building, as a tenant. As the assignee, the plaintiff had become the landlord. Thus the Trial Court held that the relationship of landlord and tenant existed between the parties. Finding that rent was in arrears and the defendants have defaulted in payment of rent, the Trial Court decreed the suit. The defendants appealed. The lower appellate Court, on a reappraisal of the pleadings and the evidence adduced in the case, agreed with the conclusion of the Trial Court that the agreement for sale set up by the defendants is not proved. It further held that the finding that there exists a relationship of landlord and tenant between the plaintiff and the defendants, was justified on the materials. The defendants have committed default in payment of rent and hence were liable to be evicted. It confirmed the decree for eviction passed by the Trial Court. This is challenged in this second appeal by the defendants. 3. Mr. The defendants have committed default in payment of rent and hence were liable to be evicted. It confirmed the decree for eviction passed by the Trial Court. This is challenged in this second appeal by the defendants. 3. Mr. Jay Prakash Jha, learned counsel for the appellants contended that the suit was misconceived since the plea of the defendants was that there existed no relationship of landlord and tenant between he plaintiff and the defendants. He further contended that the Court below was in error in finding that the agreement for sale set up by defendants had not been proved. Similarly, the finding that there existed the relationship of landlord and tenant between the parties was unsustainable. 4. I say that all these questions are more or less questions of fact. No doubt, in a given situation, some of the aspects to be considered would turn out to be mixed questions of facts and law. But on the facts of the case, it appears to me that the findings rendered are essentially based on an appreciation of the evidence brought on record. The Trial Court found that the agreement for sale (Ext. A) relied upon by the defendants has not been proved. It has given, in my opinion, good reasons for arriving at the conclusion. It noticed that the agreement for sale though referred to by the defendants in their written statement was not produced with the written statement filed before the Trial Court. The document was not produced along with the list of documents. It was produced only after the evidence on the side of the plaintiff was closed and the defendants started their evidence. It further noticed that even though one of the witnesses to the document was alive for examination, that witness was neither cited nor examined. Thirdly it noticed that in a prior proceeding under Section 107 of the Code of Criminal Procedure, when the defendants had an opportunity and the occasion to set up this agreement for sale in their favour, this agreement for sale was never put forward as part of their case, tending to show that this agreement was not in existence as on that day. Fourthly it noticed that when an objection was raised by the defendants before the Sub- Registrar, Dumka not to register the sale deed in favour of the plaintiff and the same was rejected, this agreement for sale was not put forward by the defendants as part of their objection. These, according to me, are vital circumstances the Trial Court was justified in relying on in the circumstances to come to the conclusion that the defendants have not proved the agreement for sale set up by them. It also noticed the inability of the defendant No. 2 who was examined as DW 1 to explain the omission to mention this document earlier. Thus, it was that the finding that the agreement for sale (Ext. A) was not proved by the defendants on the facts of the case was arrived at by the Trial Court. The Trial Court has not relied on any evidence that is inadmissible or any circumstance that is irrelevant. It has not misunderstood the contents of any document. It has not drawn any inference which is impermissible in law. This approach and conclusion has been affirmed by the appellate Court. It cannot be said that the finding is vitiated by any substantial error of law under Section 100 of the Code of Civil Procedure. On a reappreciation of the relevant materials though it may be outside my province setting in Second Appeal. I fully agree with the reasoning and the conclusion of the Trial Court and with the appellate Court in coming to the conclusion that the agreement for sale has not been proved. 5. The argument on behalf of the defendants that the sale deed relied by the plaintiff has not been proved in view of the fact that none of the heirs of Bhagwan Prasad has been examined, cannot be accepted. It is a registered sale deed duly executed and the presumption arising out of the registration has not been rebutted by the defendants. The Courts below have also found that the sale deed was executed in favour of the plaintiff. The said finding also does not suffer from any substantial error of law. 6. Then the question is whether the finding that there exists a relationship of landlord and tenant between the parties is vitiated by, any substantial error of law. There were two explanations for the occupation of the building by the defendants. The said finding also does not suffer from any substantial error of law. 6. Then the question is whether the finding that there exists a relationship of landlord and tenant between the parties is vitiated by, any substantial error of law. There were two explanations for the occupation of the building by the defendants. The plaintiff offered the explanation that the predecessor of the defendants was let in as a tenant by Bhagwan Prasad and the defendants are continuing as such. The defendants pleaded that they were in possession on the basis of an agreement for sale executed by Bhagwan Prasad in favour of their predecessor. The explanation of the defendants that their possession was based on an agreement for sale was found to be untrue. Then, it was open to the Courts below to accept the case of the plaintiff and her explanation for the possession of the defendants of the suit building that they were holding it as tenants. It appears to me to be a natural inference flowing from the finding rendered by the Trial Court and confirmed by the lower appellate Court. In that situation, it cannot be said that the finding that there existed a relationship of landlord and tenant between the plaintiff and the defendants, also suffers from any error of law. 7. In a suit filed under the Bihar Buildings (Lease, Rent and Eviction) Control Act, the Court has necessarily the jurisdiction to decide whether there exists the relationship of landlord and tenant between the plaintiff and the defendants when the claim of status of that behalf by the plaintiff, is challenged by the defendants. In fact, that would be the jurisdictional fact the finding on which alone a jurisdiction would be conferred on the Court to pass a decree under that Act. Therefore, it cannot be said that the Courts below had acted illegally in deciding the question whether there existed a relationship of landlord and tenant between the plaintiff and the defendants. That part of the decision making process also does not suffer from any substantial error of law. 8. Thus on the whole, I am satisfied that the judgment and decree passed by the Courts below do not suffer from any substantial error of law warranting admission of this second appeal. That part of the decision making process also does not suffer from any substantial error of law. 8. Thus on the whole, I am satisfied that the judgment and decree passed by the Courts below do not suffer from any substantial error of law warranting admission of this second appeal. I also notice that the suit for eviction started in the year 1979 and the plaintiff has been kept at bay for 25 years. I dismiss the second appeal.