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2012 DIGILAW 562 (PAT)

Sunil Kumar Singh v. Raj Narayan Singh

2012-04-03

SHAILESH KUMAR SINHA

body2012
Shailesh Kumar Sinha, J. – The judgement and decree dated 29th September, 1992 passed by the 1st Sub-ordinate Judge, Saharsa in Title Suit No. 38 of 1988 is assailed by the plaintiffs-appellants on dismissal of his aforesaid suit for eviction of the defendants 1st set from the suit premises claimed to be tenant on the ground of default in payment of rent and also on the ground of personal necessity besides declaration of certain sale deeds being null and void executed by the defendant 2nd Set in favour of defendant nos. 2, 3, 4 & 5 in respect of the suit property. 2. The short facts is that the plaintiffs sought for eviction of defendant nos. 1 to 5 from the suit property i.e. Schedule I of the plaint claimed to be the landlord being the owner of the suit land on purchase through sale deed dated 16th April, 1987 vide Exhibit-1A and sale deed dated 24.4.1987 vide Exhibit-1. The above sale deeds were executed by the defendant nos. 10 to 12 the heirs of Late Banshidhar Bhimsariya @ Banshidhar. The Schedule II property being the part of the suit land detailed in the plaint which was purchased by the ancestors of the vendor of the plaintiffs long ago through a registered sale deed of the year 1936 and since then the heirs of Late Banshidhar Bhimsariya @ Banshidhar were coming in possession as a owner of the suit land. Further case of the plaintiffs is that the defendant nos.1 to 5 was admittedly the tenant of Late Banshidhar Bhimsariya @ Banshidhar since the year 1954 on monthly rent of Rs. 35 which was later on enhanced to Rs. 40 per month and paid the rent till May, 1983. The further case of the plaintiffs is that the family of Late Banshidhar Bhimsariya @ Banshidhar had a business in the name of style of M/s Harchand Rai Bhinsaria and on some occasions the rent receipts were being issued on the rent receipt granted by the firm. Sometimes, the rent were paid to one of the partners of the firm and sometimes the rents were collected also by Munshi of the firm, but nonetheless the title and possession over the suit premises was of the ancestors of the vendor of the plaintiffs namely Late Banshidhar Bhimsariya @ Banshidhar. Sometimes, the rent were paid to one of the partners of the firm and sometimes the rents were collected also by Munshi of the firm, but nonetheless the title and possession over the suit premises was of the ancestors of the vendor of the plaintiffs namely Late Banshidhar Bhimsariya @ Banshidhar. The plaintiffs on purchase of the land became the landlord and the defendant nos. 1 to 5 did not pay the rent since the date of their purchase of the land in question vide sale deed dated 6.7.1987 and 7.7.1987 executed by the defendant nos. 6 to 9 (Exhibit-C series). From the alleged purchase through the aforesaid sale deeds i.e. Exhibit-C series, it would appear that those were the subsequent sale deeds after the purchase of the land by the plaintiffs which were dated 16.4.1987 and 24.4.1987 vide Exhibit-1A & 1 respectively. The plaintiffs accordingly sought for eviction of the defendant nos. 1 to 5 from the suit premises. 3. The case of the defendants is that the suit land did not belong to Late Banshidhar Bhimsariya @ Banshidhar as claimed by the plaintiffs rather it was the property of the firm namely, M/s Harchand Rai Bhimsariya to which Late Banshidhar Bhimsariya @ Banshidhar was one of the partners. The defendants further case is that the vendor of the defendant nos. 1 to 5 were the tenant of the aforesaid firm and not the tenant of Late Banshidhar Bhimsariya @ Banshidhar, and as such, there was no relationship of landlord and tenant between the defendant nos. 1 to 5 and Late Banshidhar Bhimsariya @ Banshidhar, and as such, the plaintiffs neither acquired any title on purchase of the suit property from the heirs of Late Banshidhar Bhimsariya @ Banshidhar as per Exhibit-1 & 1A nor they being the landlord entitled to claim the eviction of the concerned defendants. The further case of the defendants is that on perusal of the monthly rent receipts granted by the then landlord M/s Harchand Rai Bhimsariya it would appear that the rent receipts were granted by the firm and on many occasions the rents were paid to one of the partners of the firm and on some occasion the same was collected by the Munshi of the firm. Further case of the defendants is that in a suit for eviction the question of title over the suit premises is not open to be adjudicated. The vendor of the plaintiffs were not the landlord of the defendant nos. 1 to 5 and the plaintiffs being the purchaser from the heirs of Late Banshidhar Bhimsariya @ Banshidhar neither acquired any title nor became the landlord. The suit was accordingly sought to be dismissed. 4. The plaintiffs as well as the defendants produced oral as well as brought documentary evidence on the record in support of their respective cases. The trial Court on detailed consideration of the oral as well as the documentary evidence held that there was no evidence either oral or documentary on the record to substantiate the case of the plaintiffs that their vendor was the landlord of the defendant nos. 1 to 5. The trial Court further found that the monthly rent receipts brought on the record either by the plaintiffs or the defendants were granted by the firm M/s Harchand Rai Bhimsariya and not individually by Late Banshidhar Bhimsariya @ Banshidhar in his own name either as a owner or landlord of the defendant nos. 1 to 5. The court further on consideration of the evidence of the parties as also considering their respective cases held that in a suit for eviction the rival claim of title over the suit property is not open for adjudication which can be done only in a regular suit. The Court below having found that the vendor of the plaintiffs was not the landlord, and as such, plaintiffs cannot be held to be the landlord of the defendant nos. 1 to 3. Accordingly the suit was dismissed. 5. Learned counsel appearing for the appellants-plaintiffs basically submitted and tried to demonstrate that since the vendor of the plaintiffs were having the title over the suit premises, and as such, they were the landlord and within their rights to seek for eviction of the defendant nos. 1 to 5 from the suit premises. The primary submission advanced on behalf of the appellant was to demonstrate that the vendor of the plaintiffs was having the valid title being the purchaser from the heirs of Late Banshidhar Bhimsariya @ Banshidhar. 1 to 5 from the suit premises. The primary submission advanced on behalf of the appellant was to demonstrate that the vendor of the plaintiffs was having the valid title being the purchaser from the heirs of Late Banshidhar Bhimsariya @ Banshidhar. It was further contended that the vendor of the plaintiffs was the tenant of Late Banshidhar Bhimsariya @ Banshidhar and not the firm, as such, on purchase of the land from the heirs of Late Banshidhar Bhimsariya @ Banshidhar they became the owner as well as the landlord of the defendant nos. 1 to 5. Learned counsel further submits that the rent receipts brought on the record would show that the rent receipts were granted either by Late Banshidhar Bhimsariya @ Banshidhar on his behalf or by the partners of the firm or by the Munshi of the firm. In support of the claim that the heirs of Late Banshidhar Bhimsariya @ Banshidhar were having title, learned counsel drew the attention of the Court to some of the documents in order to show that the vendor of the plaintiffs were having the title over the suit land. It was further submitted that the sale deeds dated 6.7.1987 and 7.7.1987 executed by the defendant 2nd Set with respect to the suit property deserves to be declared as null and void as the vendor of the aforesaid sale deeds had no title in their favour. 6. Learned counsel appearing for the respondent-defendant no.1 emphatically denied to be the tenant of the plaintiffs or their vendor who were the heirs of Late Banshidhar Bhimsariya @ Banshidhar as the property in question did not belong to said Banshidhar Bhimsariya @ Banshidhar in his individual capacity, the property belonged to the firm namely, M/s Harchand Rai Bhimsariya. It was further submitted that the defendant nos. 1 to 5 were the tenant of the firm and not Banshidhar Bhimsariya @ Banshidhar in his individual capacity. Learned counsel drew the attention of the Court to the rent receipt vide Exhibit-G (series) which would show that the rent receipt were granted by the firm and not by Banshidhar Bhimsariya @ Banshidhar in his individual capacity. Learned counsel submits that admittedly the defendant nos. 1 to 5 used to pay the rent on several occasion through one of the partners of the firm and on some occasion to the Munshi of the firm. Learned counsel submits that admittedly the defendant nos. 1 to 5 used to pay the rent on several occasion through one of the partners of the firm and on some occasion to the Munshi of the firm. The attention of the Court was also drawn to Exhibit-1 series i.e. the Income Tax assessment orders with respect to the firm M/s Harchand Rai Bhimsariya from where it would be evident that the property in question belonged to the firm. Learned counsel, however submits that as regards the title over the suit property, the matter has been decided in another suit vide Title Suit No. 42 of 1991 in favour of the defendant no.3 and the aforesaid sale deed dated 7.7.1987 executed in favour of the defendant no. 3 was subject matter of challenge. The suit was dismissed by the judgment and decree dated 16.1.1998 and the title was decided in favour of the defendant no.3. Learned counsel submitted that in the aforesaid Title Suit No. 42 of 1991 it was decided by holding that the property in question belongs to the firm namely, M/s Harchand Rai Bhimsariya and not the personal property of Banshidhar Bhimsariya @ Banshidhar in his individual capacity. Notwithstanding the above, it is submitted that the question of title to the suit property is not open to be adjudicated in a suit for eviction and the plaintiffs having failed to prove that their vendor was the landlord of the defendant nos. 1 to 5 in respect of the schedule I property which is a part of the schedule II property of the plaint. It is submitted that the suit was rightly dismissed. 7. Upon consideration of the rival submissions of the parties and upon perusal of their respective oral as well as documentary evidence brought on the record, it would appear that the plaintiffs as also the defendant nos. 1 to 5 are the claimants over the suit property. The plaintiffs claim the suit property on basis of the sale deeds dated 16.4.1987 and 24.4.1987 vide Exhibit-1A & 1 respectively whereas the defendant nos. 1 to 5 claims the suit property on basis of the sale deeds dated 6.7.1987 & 7.7.1987 (Exhibit-C series). 1 to 5 are the claimants over the suit property. The plaintiffs claim the suit property on basis of the sale deeds dated 16.4.1987 and 24.4.1987 vide Exhibit-1A & 1 respectively whereas the defendant nos. 1 to 5 claims the suit property on basis of the sale deeds dated 6.7.1987 & 7.7.1987 (Exhibit-C series). The question of title in eviction suit between the parties could not be adjudicated, and as such, in my opinion, the Court below rightly held that the controversy with regard to the title over the suit property is not open to be adjudicated relying upon a decision of the Apex Court in the case of Rajendra Tiwary vs. Basudeo Prasad, reported in A.I.R. 2002 (SC) 136. Now the question as to whether the plaintiff is the landlord. The contention of the learned counsel for the appellant as noticed above that the plaintiffs claimed to be the landlord for having title which was seriously contested by defendant nos. 1 to 5 disputing the claim of the plaintiffs that he had any right, title and interest for being the purchaser of the suit property from the heirs of Late Banshidhar Bhimsariya @ Banshidhar. The question whether title over the suit property was of Late Banshidhar Bhimsariya @ Banshidhar or their heirs vis-à-vis the claim of the defendants that the title over the suit property was of the firm namely, M/s Harchand Rai Bhimsariya, a firm with several partners. The trial Court on appreciation of the evidences brought on the record, could not find any material/evidence on the record to suggest that the vendors of the plaintiffs were the landlord. During the hearing of the appeal as well, the learned counsel for the appellant could not point out any evidence oral or documentary on the record to show that the defendant nos. 1 to 5 were the tenant of Late Banshidhar Bhimsariya @ Banshidhar. The rent receipts brought on the record all goes to show that the rent receipts were granted on behalf of the firm either by any of the partners or by the Munshi of the firm. Therefore, there is no evidence on the record, as rightly held by the Court below, to hold that the plaintiffs or his vendors were the landlord of the defendant nos. Therefore, there is no evidence on the record, as rightly held by the Court below, to hold that the plaintiffs or his vendors were the landlord of the defendant nos. 1 to 5 since from the evidence on record it could not be substantiated the relationship of landlord and tenant between the plaintiffs and the defendants, the suit was rightly dismissed. 8. In the result, for the reasons and the discussions made above, I do not find any merit in this appeal and the same accordingly stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.