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2012 DIGILAW 736 (JHR)

Navin Sinha v. Kalawati Devi

2012-05-10

P.P.BHATT

body2012
JUDGMENT By Court -Heard the learned counsel for the petitioner and learned counsel for the State. 2. Perused the papers. 3. The present petition is filed under Section 14 (8) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 against the judgment dated 17.03.2007, passed by the learned Munsif, 1st, Dhanbad in Title (Eviction) Suit No. 67 of 2003, whereby the learned Munsif, Ist was pleased to decree the suit for eviction under Section 11 (1) (c) read with Section 14 of the Bihar Building (Least Rent & Eviction) Control Act, 1982 and further directed the defendant to vacate the tenanted premises within 60 days from the date of the decree. 4. Brief facts of this case is that Opposite Party (Original Plaintiff) is the owner of Municipality Holding No.-77 and the Petitioner (Original defendant) is the monthly tenant under him on a monthly rent of Rs.150/- in respect of portion of the said Holding. A Title (Eviction) Suit No. 67 of 2003 filed by the Opposite Party (Original Plaintiff) on the ground that the Petitioner (Original defendant) paid to her the monthly rent last till June 2002 but did not pay the rent, thereafter and also on the ground that she required the house for her personal necessity as the Opposite Party (Original Plaintiff) and their family members are residing in a rented house and there are 15 members in her family. The Opposite Party (Original Plaintiff) also averred that the Petitioner (Original defendant) had agreed to vacate the premises within two month but he had refused to vacate on 08.09.2002. In the Title (Eviction) Suit Plaintiff (Original defendant) appeared and filed Written Statement and denied the averment of the Opposite Party (Original Plaintiff) on the ground that he is the owner of the suit premises and is residing therein since more than 42 years and opposite party/Original Plaintiff has no right title and interest in respect of the said premises and he seriously disputed the title of the Opposite Party (Original Plaintiff). In support of her case, Opposite Party (Original Plaintiff) examined witnesses as P.W. No.-1 Md. In support of her case, Opposite Party (Original Plaintiff) examined witnesses as P.W. No.-1 Md. Aslam, P.W. No.- 2 Rajendra Prasad Sao, P.W. No.- 3 Amar Kumar Sao, P.W. No.- 4 is the Opposite Party (Original Plaintiff) herself and P.W. No. - 5 Diso Kumhar who has proved the certain documents as Sale Deed No.- 9928 Ext.-1, rent receipt Ext.-2 and tax receipt issued by municipality Ext. 3. Plaintiff (Original Defendant) has also examined his witnesses to establish his case in course of hearing of the suit and the D.W. No.- 1 is the Petitioner (Original Defendant) himself, D.W. No.2 Sahdeo Saw, D.W. No.3 is Laxmi Narayan Sinha and has proved the document of his title Hukum-nama is Ext.- 'A', rent receipt is 'B', receipt of Electricity Bill Ext.-'C' and notice issued to him in respect of BPLE case Ext. 'D'. 5. The learned counsel for the petitioner submitted that the learned court below has failed to appreciate the evidence on record and thereby committed an error in not believing the fact that the petitioner herein, was the original owner of the suit premises. It is further submitted that the court below ought to have considered the evidence adduced by the petitioner, wherein, it has been stated that he is in ownership and possession over the suit premises by virtue of the Registered Sale Deed, Government Rent Receipts, Municipal Holding Tax, Mutation order passed by C.O., Dhanbad and 'Hukumnama' and the building, in question, was constructed by his grandfather and he has been residing in the suit premises and he was also the absolute owner of the same. It is further submitted that the court below has erroneously considered the evidence of the plaintiff and decided the landlord and tenant relationship merely on the statement of plaintiff that at the time of purchase of the property, in question, the plaintiff has told to her that he is residing in the suit premises merely in the capacity of tenant. It is further submitted that the court below has also failed to take into consideration the fact that the plaintiff has admitted in her evidence that she issued rent receipts to the petitioner but no rent receipts have been produced and proved in evidence. It is further submitted that the court below has also failed to take into consideration the fact that the plaintiff has admitted in her evidence that she issued rent receipts to the petitioner but no rent receipts have been produced and proved in evidence. The learned counsel appearing for the petitioner while referring the judgment given by the court below submitted that the materials available on record and the evidences adduced on behalf of the parties have not been taken into consideration by the court below. Learned counsel for the petitioner has referred to and relied upon the judgment in the case of Mostt. Ugni & Another-Chowa Mahton & Others & Tilak Rai and Others reported in 1968 (1) P.L.J.R. 3 and submitted that in view of Section 91 of The Indian Evidence Act, 1872, the unregistered 'Hukumnama' can be used for collateral purpose and this material aspect has not been properly considered by the court below. 6. As against that, the learned counsel for the Opposite Party (original plaintiff) submitted that the Eviction Suit was filed on the ground of personal necessity as well as default in making payment of rent and the plaintiff has proved these two grounds on the basis of documentary as well as oral evidence on record. The learned counsel for the Opposite Party while referring Paragraph 6 of the impugned judgment pointed out that the court below has taken into account the evidence adduced by both the parties and reached to the conclusion that the ground of personal necessity has been established and therefore, the court below has rightly and properly, after careful consideration of the materials available on record including documentary as well as oral evidences adduced on behalf of the parties, passed an order of eviction. It is further submitted that the petitioner, herein, (original defendant), made attempt to challenge the title in the eviction suit, which is not permissible. It is further submitted that the original plaintiff is residing in a rented premises and the ground of personal necessity as well as non payment of rent have been proved before the court below and in support thereof, five witnesses have been examined and both the grounds canvassed before the court below have been established and therefore, the finding of facts recorded by the court below are not required to be disturbed in a revision application filed by the petitioner. In support thereof, the learned counsel for the Opposite Party has referred to and relied upon the judgment in the case of Mahadeo Prasad Soni-versus-Sushila Prajapati & another reported in 2010 (3) J.C.R. 49. 7. Considering the aforesaid rival submissions and on perusal of the material on record, it appears that the Opposite Party (original plaintiff) filed Title (Eviction) Suit No. 67 of 2003, whereby the learned Munsif, Dhanbad was pleased to pass an order of eviction and further directed the defendant to vacate the tenanted premises within 60 days from the date of the suit. On perusal of the judgment delivered by the court below, it further transpires that the court below after careful consideration of the documentary as well as oral evidence on record, recorded its findings. It appears that the plaintiff has examined five witnesses in support of her say, whereas the defendant has examined three witnesses. The petitioner has made attempt to challenge the title of the suit premises but the documentary evidence produced by the present petitioner has not been believed by the court as the said documents were non-registered but moreover, the grounds canvassed by the original plaintiff i.e. with respect to personal necessity and default in payment of rent, which was supported by documentary as well as oral evidence, has been established. From the documentary as well as the oral evidence adduced on behalf of the parties, it appears that so far as the finding of facts recorded by the court below is concerned, no interference is called for in a Civil Revision application at this stage. It also appears that the original defendant (opposite party herein) tried to challenge the title of the suit premises in and therefore, I found substance in the arguments advanced by the learned counsel for the Opposite Party that the same is not permissible in view of the judgment Mahadeo Prasad Soni-versus-Sushila Prajapati & another reported in 2010 (3) J.C.R. 49, paragraphs 10 to 16 of the same judgment are relevant for the purpose of deciding this case as the facts and circumstances of the present case are similar to the facts and circumstances of the case of Mahadeo Prasad Soni-versus-Sushila Prajapati & another reported in 2010 (3) J.C.R. 49. So far as the judgment referred to and relied upon by the learned counsel for the petitioner in the case of Mostt. So far as the judgment referred to and relied upon by the learned counsel for the petitioner in the case of Mostt. Ugni & Another-Chowa Mahton & Others & Tilak Rai and Others reported in 1968 (1) P.L.J.R. 3 is concerned, the same is not applicable in the facts and circumstances of the present case and more particularly in view of the judgment referred to and relied upon by the learned counsel for the Opposite Party in the case of Mahadeo Prasad Soni-versus-Sushila Prajapati & another reported in 2010 (3) J.C.R. 49, wherein, it has been held that such plea cannot be raised in an eviction suit. 8. Now, on perusal of the impugned judgment passed by the court below, it appears that the issue of title which has been raised by petitioner (original defendant) is not permissible in the eviction suit. For that purpose separate substantive suit is required to be filed by the defendant. Therefore the court below after careful consideration of the documentary as well as oral evidence on record gave its judgment. This Court is of the view that the learned court below has not committed any error or material irregularity or illegality and therefore having regard to the facts and circumstances of the case, no interference is called for and as such, considering the scope of revision, the present Revision application is required to be dismissed. Accordingly, this Revision application is dismissed with no order as to cost. Interim order passed earlier stands vacated. Revision application dismissed.