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2009 DIGILAW 513 (JHR)

Munmun Banerjee v. Manju Devi

2009-04-08

RAMESH KUMAR MERATHIA

body2009
JUDGMENT : This civil revision application has been filed under Section 14 (8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (‘the Act’ for short) against the judgment dated 8.2.2008 passed by learned Munsif II, Dhanbad in Title (Eviction) Suit No. 1 of 2004 decreeing the suit filed under the provision of Section 11 (1) (c) of the Act on the ground of personal necessity against the original defendant-petitioner-Haradhan Chakraborty. The petitioners have been substituted. The original defendant and his substituted heirs will be referred as “petitioners” and the plaintiff will be referred as “the opposite party” for the sake of convenience. 2. The case of the opposite party, in short, is that she purchased the suit premises by registered sale deed no. 4239 dated 17.6.2003 from the Shiva Nath Senapati and got her name mutated. The petitioners were inducted as tenant by Shiva Nath Senapati on monthly rental of Rs. 500/-per month including electricity charges. The opposite party required the suit premises for personal use and occupation as her family was staying with other relatives, where there is serious shortage of accommodation. Two growing sons were to be married, but because of shortage of accommodation, their marriage deferred. In spite of notice, the petitioners did not vacate the suit premises. During pendency of the suit, the eldest son was married and the opposite party had to take another premises on rent. The case of the petitioners was that, the suit was not maintainable; the said sale deed in favour of the opposite party was illegal as the vendor Shiva Nath Senapati was not the sole owner. He was inducted as tenant by Khitish Chandra Senapati, father of Shiva Nath Senapati and after his death the property devolved on all his successors under whom he became tenant. Subsequently, his occupational status changed as he entered into an agreement for sale with Shiva Nath Senapati on 3.3.2000. He was inducted as tenant by Khitish Chandra Senapati, father of Shiva Nath Senapati and after his death the property devolved on all his successors under whom he became tenant. Subsequently, his occupational status changed as he entered into an agreement for sale with Shiva Nath Senapati on 3.3.2000. A suit was filed by Shiva Narayan Senapati and Neela Senapati i.e. brother and sister of Shiv Nath Senapati, being Title Suit No. 153 of 2000 against Shiva Nath Senapati seeking declaration that the Schedule A property was joint property of all brothers and sisters and as such Shiva Nath Senapati alone did not have right to sell Schedule A property to the petitioners and, therefore, due to pendency of the said suit Shiva Nath Senapati did not execute sale deed, but he assured that after resolving all disputes with his brothers and sisters he would sell the premises along with them and therefore, the petitioners were awaiting the performance of agreement of sale dated 3.3.2000. The petitioners further stated that they learnt from the plaint that the suit premises was sold to the opposite party. Such sale was done in a clandestine manner and in contravention of the said agreement which was still subsisting. Brother and sister of Shiv Nath Senapati-Shiv Narayan Senapati and Neela Senapati also filed a suit being Title Suit No. 158 of 2003 challenging the said sale in favour of the opposite party. It was further said that the petitioners also filed a suit being Title Suit No. 37 of 2004 for specific performance of agreement dated 3.3.2000. The ground of bonafide personal requirement was not denied and disputed, and only this much was said that as no relationship of landlord and tenant existed and, therefore, the opposite party cannot claim eviction on any ground. 3. Learned counsel appearing for the petitioners submitted that suit is not maintainable and that the petitioners are entitled to protection under Section 53 (A) of the Transfer of Property Act (‘T. P. Act’ for short), as they were/are occupying the suit premises in part performance of the agreement to sell, as the owners. He further submitted that the husband of the opposite party (P.W.1) admitted in paragraph 23 of his cross-examination that petitioners were not his tenant. He relied on the judgment reported in (2002) 3 SCC 676 Smt. Shamrao Suryavanshi & another Vs. He further submitted that the husband of the opposite party (P.W.1) admitted in paragraph 23 of his cross-examination that petitioners were not his tenant. He relied on the judgment reported in (2002) 3 SCC 676 Smt. Shamrao Suryavanshi & another Vs. Pralhad Bhairoba Suryavanshi & others and (2001) 2 JLJR 372 (SC) P. Kanthimathi and others Vs. Mrs. Beatrice Xavier. He did not challenge any other findings. 4. Learned counsel appearing for the opposite party, on the other hand supported the impugned judgment. He submitted that the son of the original defendant (DW 1) in paragraph 5 of his cross-examination clearly admitted that they were living in the suit premises as tenant. He relied on (2003) 1 JLJR 591 Sheikh Sohrab Vs. Md. Kasim Ansari and another. 5. Thus the only question involved in this civil revision application is whether on the basis of the purported agreement to sale dated 3.3.2000 (Ext. A), the defendants-petitioners can contend that the eviction suit filed by the plaintiff-opposite party, based on the registered sale deed dated 17.6.2003 (Ext. 1) is barred under the Act or not? 6. The trial court, inter alia, held as follows. The opposite party became landlord after purchase of the suit premises from its original and actual landlord. The said Title Suit No. 153 of 2000 and Title Suit No. 158 of 2003 were dismissed or rejected and there was no adjudication in the said suits. The sale deed under which the opposite party purchased the suit property was not under challenge. The case of the petitioners was that the vendor Shiva Nath Senapati alone could not sell the property in absence of his co-sharers, but he could not prove that Shiva Nath Senapati alone was not entitled to sell the suit property. There was nothing in the agreement to show that the petitioners were not required to pay rent to Shiva Nath Senapati after the said agreement. On the basis of such agreement, it could not be held that the petitioners acquired any right, title and interest over the suit property and their status and possession changed and they continued in possession as tenant and not as owner on the basis of the said agreement. There existed relationship of landlord and tenant between the parties. On the basis of such agreement, it could not be held that the petitioners acquired any right, title and interest over the suit property and their status and possession changed and they continued in possession as tenant and not as owner on the basis of the said agreement. There existed relationship of landlord and tenant between the parties. It was further held that the plaintiff required the suit premises for her bona fide need and in good faith and there is nothing on record to show that partial eviction will satisfy the necessity of plaintiff as the suit premises was only two rooms and verandah. 7. After hearing the parties and going through the records, I am satisfied that the trial court has rightly recorded the said findings while decreeing the suit and no grounds are made out to interfere with the impugned judgment. It is settled principle that the evidences are to be read in their entirety and not piecemeal. On the basis of the averment made in paragraph 3 of the cross-examination of PW 1-husband of the opposite party, that the petitioners were not his tenant, it cannot be held that there existed no relation of landlord and tenant between the parties. Moreover, actually there was nothing wrong if PW 1 said that petitioners were not his tenant. It has been proved that the petitioners were tenants under the vendor of the opposite party. The son of defendant-DW 1 himself admitted in paragraph 10 that they were living in the suit premises from 1991 as tenant. It may be also noted here that the case of petitioners is contradictory. On the one hand, it said that Shiva Nath Senapati alone was not capable to execute the sale deed in favour of the opposite party, but on the other hand the petitioners themselves are relying on the purported agreement executed by only Shiva Nath Senapati. It further appears that the said agreement was valid only for eleven months which is accepted by petitioner no. 4 the son of the original defendant in paragraph 8 of his cross-examination, where he said that said agreement expired on 2.2.2001. Therefore, it is clear that the said agreement became unenforceable after 11 months from the date of its execution i.e., 3.3.2000. 4 the son of the original defendant in paragraph 8 of his cross-examination, where he said that said agreement expired on 2.2.2001. Therefore, it is clear that the said agreement became unenforceable after 11 months from the date of its execution i.e., 3.3.2000. Thus, on the one hand the petitioners are relying on a purported agreement which became unenforceable and on the other hand, the opposite party is relying on a registered sale deed executed on 17.6.2003 in her favour. Apparently, the opposite party derived title on the basis of registered sale deed dated 17.6.2003 (Exhibit 1). As noticed above, the petitioner was tenant under the vendor of the opposite party. It may also be noted here that the petitioners have not disputed the bona fide requirement of the plaintiff. 8. The judgment of Smt. Shamrao Suryavanshi (supra) is not applicable in the facts and circumstances of the present case. The question in that case was different as would appear from the paragraph 1 thereof. In that case, the suit was brought by the transferor for recovery of possession, whereas, in the present case the suit has been filed by the purchaser of the suit premises on the basis of an undisputed registered sale deed. Similarly, the judgment of P. Kanthimathi (supra) is also not applicable in the present case. The question involved in the said case was different i.e. whether on the execution of agreement to sell by the landlord when the tenant and landlord having received substantial portion of the sale consideration, the relationship of landlord and tenant inter se between them ceases and fresh rights and obligations flow under the agreement. It was found in the said case that a substantial portion of the sale consideration was paid to the landlord, whereas from perusal of the purported agreement relied by the defendant (Ext. A), it appears that against the sale price fixed at Rs. two lacs, only Rs. 20,000/-was paid as advance. Moreover, as noticed above, the said agreement itself became unenforceable. Paragraph 4 of the judgment relied by Mr. Amar Kumar Sinha, learned counsel for the plaintiff in Sheikh Sohrab (supra) reads as follows: “Perhaps the court below is not aware of the correct proposition of law with regard to the scope of an Eviction suit. 20,000/-was paid as advance. Moreover, as noticed above, the said agreement itself became unenforceable. Paragraph 4 of the judgment relied by Mr. Amar Kumar Sinha, learned counsel for the plaintiff in Sheikh Sohrab (supra) reads as follows: “Perhaps the court below is not aware of the correct proposition of law with regard to the scope of an Eviction suit. In the eviction suit, the issues which is to be decided is whether defendant is occupying the premises in the capacity of a tenant and whether he has committed mischief which make him liable for eviction under section 11(1) of the Bihar Buildings (Lease, Rent, Eviction) Control Act. So far agreement to sale is concerned it has no relevance with the eviction suit particularly for the reason that defendants have already filed suit for specific performance being Title Suit No. 142/1995. ………….” 9. After considering the matter from different angles, I find no merit in this civil revision petition which is accordingly dismissed. However, no costs.