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2012 DIGILAW 164 (PAT)

Iqbal Md. Sami v. Mohammad Badarul Hasan

2012-01-25

V.NATH

body2012
JUDGMENT : VIJAYENDRA NATH Heard Mr. Arshad Alam the learned counsel appearing on behalf of the petitioner and Mr. Abbas Haider, the learned counsel appearing on behalf of the opposite party. 2. The instant civil revision application has been filed under Section 14(8) of the Bihar Buildings (Lease Rent & Eviction)Control Act, 1982(hereinafter referred to as the Act) against the JUDGMENT : and ORDER :dated 27.08.2008 in Eviction Suit No.22/94 by Civil Judge II(Sr. Division)Patna City by which the plaintiff has been granted the ORDER :for recovery of possession over the suit premises. 3. The plaintiff has filed the suit seeking eviction of the original defendant (now deceased, through L.R.) on the ground of personal necessity alone. After the death of original defendant, the petitioner no.1 has been added as party-defendant, besides the heirs of original defendant, on the basis of power of attorney by the nephews of Chanda Begum. The matrix of facts as pleaded by the plaintiff, is that the M.S.Plot No. 1246, H.No.1, C.N. 148 of Patna Municipal Corporation of which the suit house described in Schedule I is a part originally belonged to Badrul Hasan who had two sons namely Nazmul Hasan and Nazrul Hasan who became entitled to equal share therein after the death of their father. Nazrul Hasan had two wives namely Husna Begum and Chanda Begum and he had a daughter namely Jamal Ara from Husna Begum. Nazrul Hasan transferred his half share, out of his share in the M.S.Plot No. 1246 to his wife Chanda Begum by registered deed of Bai Mukasa dated 14.06.1969 and further transferred his remaining half share to his daughter Jamal Ara by registered sale deed dated 02.07.1969. It is the further case of the plaintiffs that Nazmul Hasan who was holding half share in the M.S.Plot No. 1246 had made oral Hibba in favour of his niece Jamal Ara which was accepted by her and she came in possession of the same. Further Chanda Begum also transferred her share in the M.S.Plot No.1246, which she had received through the deed of Bai Mukasa abovementioned, to her step-daughter, Jamal Ara by oral Hibba on 25.01.1981 and in this manner Jamal Ara acquired title over the entire property of M.S. Plot No. 1246 and got her name mutated in the municipal corporation accordingly. Further Chanda Begum also transferred her share in the M.S.Plot No.1246, which she had received through the deed of Bai Mukasa abovementioned, to her step-daughter, Jamal Ara by oral Hibba on 25.01.1981 and in this manner Jamal Ara acquired title over the entire property of M.S. Plot No. 1246 and got her name mutated in the municipal corporation accordingly. It is further case of the plaintiff that by registered sale deed dated 02.01.94, Jamal Ara transferred the suit house to the plaintiff and thus the plaintiff acquired the title and possession over the purchased property. It is also the case of the plaintiff that there had been partition in between the plaintiff and his brothers with regard to their own ancestral property wherein the plaintiff had also accepted cash in lieu of his share and from that money he had purchased the disputed suit house for his residence as well as for doing business. It is the case of the plaintiff that the defendant was the tenant in the suit house purchased by him but he refused to vacate the same. Hence the suit. 4. The original defendant, in his written statement, has accepted that the two brothers namely Nazrul Hasan and Nazmul Hasan inherited the property in M.S.Plot No. 1246 Area 220 decimal in equal shares. It has also been accepted that Jamal Ara Khatoon was the only heir of Nazrul Hasan as others had settled in Pakistan. It has also been accepted that Nazrul Hasan had executed the registered deed of Bai Mokasa in favour of his wife, Chanda Begum with regard to his half share i.e. 55 decimal in plot no.1246 and with regard to his remaining 55 decimal he executed the sale deed in favour of his daughter, Jamal Ara. However, it is the case of the defendant that the Chanda Begum allowed the defendant no.1 to live in the suit house in view of their close relations and after the death of Chanda Bagum, his nephews inherited the share of Chanda Begum in M.S.Plot No. 1246 alognwith her other properties as her heirs and appointed the defendant also as their attorney-holder to realize the rents from the tenants. The defendant denied the transfer of her share by Chanda Begum in M.S.Plot No.1246 to Jamal Ara by oral Hibba. The defendant denied the transfer of her share by Chanda Begum in M.S.Plot No.1246 to Jamal Ara by oral Hibba. It is the specific case of the defendants that they are licensees of Chanda Begum in the suit property and are not the tenants and are residing therein in that capacity. The learned court below after hearing the parties and after elaborately considering the evidence led by both the parties has decreed the suit and has recorded the following findings: (i) Chanda Begum had transferred her share in M.S.Plot No.1246, received by her through deed of Bai Mukasa (Ext.K), by oral Hibba in the year 1981 to Jamal Ara. (ii) Md. Arif and Ahmad Hussain, the two nephews of Chanda Begum never inherited the share of Chanda Begum in M.S.Plot No. 1246 after her death as she had already made oral Hibba for the same in favour of Jamal Ara who acquired valid right, title and possession in the same. (iii) The defendant (original defendant) was a tenant in the suit premises and had been paying Rs. 150/- per month by way of rent to Chanda Begum and after his death his substituted heirs have acquired the same status. (iv) The plaintiff has got bona fide personal necessity of the suit premises for his residence and for doing business. (v) The partial eviction of the defendant will not satisfy the need of the plaintiff. 5. The learned counsel appearing on behalf of the petitioners has firstly submitted that in view of the rival submissions of the parties complicated question of tile over the suit property was involved and the learned court below has wrongly embarked upon determining the question of tile in the limited jurisdiction of eviction suit under Section 14 of the Act. 5. The learned counsel appearing on behalf of the petitioners has firstly submitted that in view of the rival submissions of the parties complicated question of tile over the suit property was involved and the learned court below has wrongly embarked upon determining the question of tile in the limited jurisdiction of eviction suit under Section 14 of the Act. It has further been submitted that the nephews of Chanda Begum who inherited her properties after her death have filed Title Suit No. 191/1994 against Jamal Ara as well as the plaintiff of this suit, for declaration of their title over the suit premises and there was already an ORDER :for hearing the eviction suit analogously with the said title suit in view of the fact that core issues were common in both the suits but the learned court below wrongly proceeded to hear and dispose of the eviction suit without awaiting the restoration of Title Suit No. 191/1994 which had stood dismissed in default and a Miscellaneous Case No.07/08 was pending for its restoration. It has been urged by the learned counsel that the determination of title of the parties in Title Suit No.191/1994 has a direct impact on this eviction suit and as such this court should suspend the operation of the impugned ORDER :till the decision of the Title Suit No. 191/1994. It has next been submitted that the learned court below has grossly erred in law in misappreciating the evidence on record and by taking a perverse view of the matter has wrongly upheld the story of oral Hibba by Chanda Begum in favour of Jamal Ara. It has also been contended that the plaintiff has got several houses in Patna City and the case set up by him with regard to the personal necessity is not bona fide and reasonable and the finding on the issue of partial eviction is only an evasive finding. 6. Per contra, the learned counsel appearing on behalf of the opposite party has submitted that there was no complicated question of title involved in the suit and the learned court below has also not embarked upon deciding the complicated question of title as alleged. It has been urged that in an eviction suit, the court is not precluded from considering the question of title incidentally while determining the relationship of landlord and tenant. It has been urged that in an eviction suit, the court is not precluded from considering the question of title incidentally while determining the relationship of landlord and tenant. It has been further submitted that the findings of the learned court below is based largely upon the admissions of the defendants and their witnesses and the learned court below has committed no illegality in recording its finding on that basis. It has been contended by the learned counsel that the plaintiff has purchased the suit house for the purpose of residence and for establishing his business for earning livelihood out of the money which he received in partition with his brothers in lieu of his share in the joint family properties. It is also the submission on behalf of the opposite party that the revisional jurisdiction of this Court under Section 14(8) of the act is not as wide as an appellate jurisdiction and reappreciation of evidence in full-fledged manner cannot be done. 7. It is not in dispute between the parties that Nazrul Hasan and Nazmul Hasan had inherited the M.S.Plot No. 1246 Area 220 decimal having half share each. The parties are also in agreement that Nazrul Hasan had two wives namely Husna Beguma and Chanda Begum and further Jamal Ara was dauther of Nazrul Hasan from his wife Husna Begum. It is also not in dispute that Nazrul Hasan by registered deed of Bai Mukasa dated 12.06.1969 had transferred his half share i.e. 55 decimal in M.S.Plot No. 1246 in favour of his wife Chanda Begum and had also executed a sale deed dated 02.07.1969 with regard to his remaining half share i.e. 55 decimal in M.S.Plot No.1246 in favour of his daughter Jamal Ara. The defendants have not denied the fact that the another brother Nazmul Hasan had transferred his right, title and interest in M.S. Plot No. 1246 in favour of his niece Jamal Ara by oral Hibba. However, the main plank of the defence case is that Chanda Begum never transferred her share in Plot No. 1246 in favour of Jamal Ara and she (Chanda Begum) continued to live in the house in portion of her share in M.S.Plot No. 1246 and had permitted the defendant (original defendant) to occupy the said house as a licensee. 8. However, the main plank of the defence case is that Chanda Begum never transferred her share in Plot No. 1246 in favour of Jamal Ara and she (Chanda Begum) continued to live in the house in portion of her share in M.S.Plot No. 1246 and had permitted the defendant (original defendant) to occupy the said house as a licensee. 8. The plaintiff has based his ownership over the suit house standing on M.S.Plot No. 1246 by purchase from Jamal Ara Khatoon by registered sale deed dated 02.01.1994 and has asserted that the defendant (original defendant)had been a month to month tenant in the suit premises on a monthly rent of Rs.30/-. Therefore, in view of the case of the defendant that Chanda Begum had never gifted her share in M.S.Plot No.1246 to Jamal Ara and had allowed the defendant to reside in the suit premises as her licensee, the core questions for determination in the eviction suit are the factum of the said gift and the status of the defendant as licensee. 9. The learned court below has framed specific issue with regard to the existence of relationship of landlord and tenant in between the plaintiff and the defendant and while determining the said issue has considered the case of Jamal Ara being the title holder over the suit premises and the oral Hibba by Chanda Begum in favour of Jamal Ara. The Ext.2 which is the sale deed dated 02.01.1994 executed by Jamal Ara in favour of the plaintiff with regard to the suit premises contains in its recital the fact of the oral Hibba by Chanda Begum of her 55 decimal share in M.S.Plot No.1246 on 25.01.1981 in favour of Jamal Ara. The mutation in the name of Jamal Ara over the entire M.S.Plot No. 1246 as shown by Ext.6 (mutation ORDER :) has not been denied by the defendant in his deposition wherein his only comment is that the same is wrong. Further after the death of Chanda Begum, the inventory of her properties was prepared which has been filed by the plaintiff as Ext.4 and which the defendant has accepted in his deposition to be in his writing and he has also accepted to have given the same to the husband of Jamal Ara. Further after the death of Chanda Begum, the inventory of her properties was prepared which has been filed by the plaintiff as Ext.4 and which the defendant has accepted in his deposition to be in his writing and he has also accepted to have given the same to the husband of Jamal Ara. The boundaries mentioned in the sale deeds Ext.K/3 (executed by Jamal Ara in favour of Akhtari Khatoon with regard to the northern portion of Holding No. 1 which she obtained from Chanda Begum by oral Hibba) and Ext.K/4 (executed by Jamal Ara in favour of the plaintiff) clearly establish the title of Jamal Ara on the basis of oral gift by Chanda Begum. It is significant to mention here that the sale deeds Ext.K/3 and K/4 contains the same properties which had been mentioned in Bai Mokasa deed (Ext.K)in favour of Chanda Begum. The learned court below has considered the aforesaid documentary evidence as well as oral evidence and thereafter has come to the finding that Chanda Begum had executed oral Hibba with regard to her share in M.S.Plot No. 1246 in favour of Jamal Ara. 10. The story of entitlement of the nephews namely Md. Arif and Ahmad Hussain over the share of Chanda Begum by inheritance has also been elaborately considered by the learned court below and it has been rightly concluded that after the transfer of her share, by Chanda Begum in favour of Jamal Ara, nothing remained for her nephews to inherit. No documentary evidence has been adduced by the defendant to establish that the nephews had taken any step for mutation of their names on the basis of their inheritance. The deeds of power of attorney (Ext.D and Ext.D/1) relied on by the defendants executed on 20.01.1994 and 23.08.2000 have clearly been executed after the sale deed dated 02.01.1994(Ext.2 of the plaintiff). There is no illegality in the finding of the court below that the nephews did not inherit the share of Chanda Begum in M.S.Plot No. 1246. 11. The case of the defendant that he had been in permissive possession of the suit premises as licensee of Chanda Begum have been demolished by the deposition of his own witnesses D.W.2 and D.W.4 who have stated that the defendant (original defendant) was the tenant of Chanda Begum whom he used to pay Rs.150/- per month by way of rent. 12. 12. The learned court below has also considered that the plaintiff had purchased the suit premises for accommodation of his big family and also for establishing business out of the money received by him in lieu of his share in partition with the brothers and the house containing three rooms, also allotted to the plaintiff in partition, is not sufficient to accommodate the big family of the plaintiff consisting of the plaintiff, his wife, his four sons and three daughters. Further by referring to the length and breadth of the suit premises, it has been rightly held by the learned court below that the partial eviction of the defendant from the suit premises will not substantially satisfy the need of the plaintiff. 13. The jurisdiction of the High Court under Section 14(8) is circumscribed by the provision itself where the High Court is required to satisfy itself that an ORDER :under the section is according to law. The reappraisal of evidence in this jurisdiction is permissible only to the extent of testing the reasonableness of the ORDER :and there is no scope for setting aside the findings unless they are perverse in the sense that those findings have been arrived at by ignoring relevant material or by taking into consideration irrelevant material or are against the settled principles of law or are so outrageous as to defy any logic. Merely because a second view is also possible on reappreciation of evidence can not be sufficient for interference in an ORDER :for recovery of possession, under Section 14(8) of the Act. It will be apt here to refer to the principle in this regard, laid down by the apex court in the case of Chandrika Prasad Vs. Umesh Kumar Verma(2002(1)SCC 531) which is as under: “…In a revision petition filed under proviso to the above Sub Section (8) of Section 14 of the Act, the High Court has to satisfy itself as to whether the ORDER :of eviction passed under Section 14 of the Act was in accordance with law. The scope of revisional jurisdiction depends on the language of the statute though revisional jurisdiction is only a part of the appellate jurisdiction, it cannot be equated with that of a full-fledged appeal…”. The scope of revisional jurisdiction depends on the language of the statute though revisional jurisdiction is only a part of the appellate jurisdiction, it cannot be equated with that of a full-fledged appeal…”. Their Lordships further have laid down : “…The High Court, however is obliged to test the ORDER :of the rent controller on the touchstone of “whether it is according to law” and for that limited purpose may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the rent controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available…” 14. It has been submitted on behalf of the petitioner that there is no averment in the plaint regarding the tenancy of the defendant(principal defendant) and there is also no statement that the defendant is the tenant of the plaintiff. But in view of the finding by the Court that the defendant was the tenant of the original owner Chanda Begum, which fact has also been accepted by the witnesses of the defendant and further finding that the plaintiff has acquired title over the suit premises by virtue of his purchase, this submission loses its force .The submission regarding the validity of acquisition of title by Jamal Ara on the basis of oral Hibba and the validity of power of attorney executed by the nephews of Chanda Begum in favour of the principal defendant has been considered elaborately by the learned court below as discussed earlier and there is no infirmity in the findings. It is accordingly held that the findings by the learned court below on the core issues arising in the suit are in accordance with law and does not require interference. 15. The learned counsel for the petitioner has strongly submitted that the operation of the impugned ORDER :should be suspended till the determination of T.S.No.191/94 field by nephews of Jamal Ara. No doubt the eviction suit as well as the T.S.No.191/94 had been directed to be heard analogously but after the dismissal of T.S.No.191/94, the court had no option but to proceed with the eviction suit. The defendant cannot be allowed to take benefit of his own laches and negligence leading to the dismissal of T.S. No. 191/94 in default knowing fully well the repercussion of the same. The defendant cannot be allowed to take benefit of his own laches and negligence leading to the dismissal of T.S. No. 191/94 in default knowing fully well the repercussion of the same. As such the plaintiff opposite party, who has bonafidely pursued his eviction suit and has obtained a decree in his favour, cannot be denied the fruits of his decree on this ground. The petitioners have, undoubtedly, a right of restitution under Section 144 C.P.C. if they ultimately succeed in T.S.No. 191/94. However, it is observed that the findings with regard to the title of the parties as recorded in the impugned ORDER :shall be taken to have been recorded only incidentally and will not prejudice the case of either of the parties in T.S.No. 191/94. 16. In the result I find no merit in this revision application, which is, accordingly, dismissed and the impugned JUDGMENT : and ORDER :of the learned court below is hereby upheld. In the facts of the case, there will be no ORDER :as to costs.