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2013 DIGILAW 1374 (PAT)

Malti Devi v. Rameshwar Singh

2013-12-04

MUNGESHWAR SAHOO

body2013
JUDGMENT : MUNGESHWAR SAHOO, J. 1. The plaintiffs have filed this Second Appeal against the judgment and decree dated 27.02.2002 passed by the learned District Judge, Rohtas at Sasaram in Title Appeal No. 35 of 2001 whereby the learned Lower Appellate Court allowed the appeal and thereby set aside the trial court judgment and decree dated 22.05.2001 passed by the learned Munsif 1st, Sasaram in Eviction Suit No. 3 of 1995. The plaintiffs filed the aforesaid eviction suit for eviction of the defendants on the ground of default and further that suit premises is in dilapidated condition and requires immediate reconstruction and on the ground that the fixed period of tenancy for 3 months had expired. According to the plaintiffs, the suit property belonged to Basmato Devi, wife of Karmu Singh and mother of Ram Chandra Singh. On the death of Basmato Devi, her husband, Karmu and son, Ram Chandra sold the property by registered sale deed in favour of the plaintiff on 01.06.1994. After purchase, the plaintiffs came in possession of the property. The defendant No. 1, Sumitra Devi is living in upper portion of the house at monthly rent of Rs. 150 per month and she requested to allow her to live for 3 months, therefore, she was allowed to remain there for 3 months and a memorandum was executed in presence of the witnesses and she put her L.T.I. on it. However, subsequently, she did not vacate the suit premises. She defaulted in payment of rent at the rate of Rs. 150 per month from 13.06.1994 and onwards. 2. The defendants filed contesting written statement alleging that in fact, defendant No. 1 is the second wife of Karmu Singh and the suit property was not the property of Basmato Devi rather the property was the joint family property purchased out of the income from the joint family property, therefore, the defendants have a share in the property. On the death of Karmu, the property not only devolved on Karmu Singh and Ram Chandra Singh but it also devolved on the defendants who are the second wife and sons and daughters from second wife. The relationship of landlord and tenant was denied. Execution of the memorandum was denied and likewise, the allegation of default was also denied. On the death of Karmu, the property not only devolved on Karmu Singh and Ram Chandra Singh but it also devolved on the defendants who are the second wife and sons and daughters from second wife. The relationship of landlord and tenant was denied. Execution of the memorandum was denied and likewise, the allegation of default was also denied. The defendants claimed title on the suit property alleging that they are residing there as owner of the property being the second wife and sons and daughters of Karmu Singh and not as tenant. 3. On the basis of the evidences and materials available on record, the trial court recorded the finding that the plaintiffs have been able to prove title and possession on the basis of sale deed dated 01.06.1994 and there is relationship of landlord and tenant between the parties. The suit premises are in dilapidated condition. The plaintiffs are entitled to recover the arrears of rent from the month of June to September, 1994. Accordingly, the plaintiffs suit was decreed. 4. The defendants filed title appeal before the Lower Appellate Court. The Lower Appellate Court mainly decided the title between the parties and recorded the finding that in fact, the property is the joint family property and the defendants are residing there as owner of the property being the second wife and children from second wife of Karmu Singh. The Lower Appellate Court also held that because there is no mention in the sale deed of the plaintiffs that the defendant No. 1 was residing in a part of the suit premises from before as tenant and that expert has not been examined to prove the L.T.I. of defendant No. 1 on Exhibit 6, there is no relationship of landlord and tenant between the parties and accordingly, the trial court's judgment was set aside and the plaintiffs suit was dismissed. 5. On the date of admission on 22.05.2003, the following substantial questions of law were formulated: I. Whether the Appellate Court committed error in discarding the findings of the trial court regarding relationship of landlord and tenant without meeting the reasons given by the trial court? II. Whether the Appellate Court committed error in entering into the title matter in depth when there was no scope of so in an Eviction Suit between the landlord and the tenant? 6. The learned counsel, Mr. II. Whether the Appellate Court committed error in entering into the title matter in depth when there was no scope of so in an Eviction Suit between the landlord and the tenant? 6. The learned counsel, Mr. Jay Prakash Singh appearing on behalf of the appellants submitted that while decreeing the plaintiffs suit, the learned trial court discussed each and every evidences produced by the parties. The plaintiffs examined many witnesses in support of the fact that there was relationship of landlord and tenant between the parties and that the defendant No. 1 was residing there since before the sell of the property by Karmu in favour of the plaintiff on 01.06.1994. The plaintiffs also proved Exhibit 6 and the plaintiffs examined the witnesses of Exhibit 6 and the scribe also. The trial court considering all these evidences recorded the finding that there is relationship of landlord and tenant between the parties. While reversing the judgment of the trial court, the Lower Appellate Court mainly decided the question of title which is outside the purview of the jurisdiction of the Courts which are authorized to decide the disputes between the landlord and tenant under Bihar Building (Lease, Rent & Eviction) Control Act, 1982. According to the learned counsel, after deciding the question of title, the Lower Appellate Court has wrongly held that the property was the joint family property because admittedly, the property was recorded in the name of Basmato Devi. The registered deed is also in the name of Basmato Devi, therefore, she was not a coparcener in the family. The claim of the defendants that the joint family purchased the property in the name of Basmato Devi out of the joint family income is barred by the Benami Transaction Act. The learned counsel submitted that while reversing the finding of relationship of landlord and tenant, the Lower Appellate Court has not considered the evidences produced by the plaintiffs and on the ground that there is no mention of the fact that defendant No. 1 was residing in the suit premises from before in the sale deed of the plaintiffs, there is no relationship of landlord and tenant because Exhibit 6 is not reliable document. On these grounds, the learned counsel submitted that the substantial questions of law formulated be answered in favour of the appellants. 7. On these grounds, the learned counsel submitted that the substantial questions of law formulated be answered in favour of the appellants. 7. At the time of hearing of this Second Appeal, nobody appeared on behalf of the respondents. 8. It is admitted case that the present suit was filed by the plaintiffs under the Bihar Building (Lease, Rent & Eviction) Control Act, 1982. To establish the relationship of landlord and tenant, the plaintiffs produced oral as well as documentary evidences. Exhibit 6 is the Kirayanama i.e. the agreement between the parties by which the defendant No. 1 is allowed to continue as tenant in the suit premises till September, 1994. The trial court on the basis of the oral evidences, the attesting witness of Exhibit 6, the scribe of Exhibit 6 held that there is relationship of landlord and tenant between the parties. From perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court discarded Exhibit 6 on the ground that the property is the joint family property acquired in the name of Basmato Devi and that in the sale deed of the plaintiff, Exhibit 3 and 3/A, there is no mention that the defendant No. 1 was residing there as tenant from before under Ram Chandra Singh. So, there appears doubt in the case of the plaintiffs. It further appears that the Lower Appellate Court decided the question of title in full fledged manner and recorded the finding that the property in the name of Basmato Devi is the joint family property and the defendants are residing there as heirs of Karmu Singh and not as tenant without considering the fact that this defence of the defendants that the joint family purchased the property in the name of Basmato is hit under Section 4 of the Benami Transaction Act, 1988. 9. Section 3(1) and 3(2)(a) of the Benami Transaction Act reads as follows: (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. 10. (2) Nothing in sub-section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. 10. In view of the aforesaid provision, the husband is entitled to purchase a property in the name of his wife or unmarried daughter. It is not the case that the husband has purchased the property in his name. The case of the defendants is that the joint family has purchased the property out of joint family income. 11. Section 4(3)(a)(b) of the Benami Transaction Act reads as follows: (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. 12. In view of the aforesaid provision, Section 4 will not apply where the person in whose name the property is held is a coparcener in a Hindu family and the property is held for the benefit of the coparceners in the family. It is settled principles of law that a female is not a coparcener in a Hindu undivided family, therefore, the property standing in the name of Basmato Devi cannot be claimed to be a joint family property. In other words, the defendants claimed that Basmato Devi is the Benamidar of joint family is hit under Section 4 of the Benami Transaction Act. However, the Lower Appellate Court has considered in great extenso this question and has held that the property is the joint family property and the defendants are residing there as owner thereof and likewise, while discarding the Exhibit 6, the Lower Appellate Court has not considered the evidences as has been discussed by the trial court. The trial court has considered each and every evidence and held that Exhibit 6 is reliable and that the defendants are the tenant under the plaintiffs. The trial court has considered each and every evidence and held that Exhibit 6 is reliable and that the defendants are the tenant under the plaintiffs. There is no dispute that the plaintiffs have purchased the property by registered sale deed in the year 1994 from the husband and son of Basmato Devi after her death. Even if it is held that the defendants are the second wife and sons then also, on the death of Basmato Devi, the property will go to her husband and the son and not the defendants. It may be mentioned here that since this is a suit under the B.B.C. Act, therefore, in view of the judgment of the Hon'ble Supreme Court reported in AIR 2002 SC 136 (Rajendra Tiwary v. Basudeo Prasad and Another), the question of title cannot be decided in the eviction suit. However, in the present case, the defendants have raised the question of title. The plaintiff is not claiming relief on the basis of title. The defendant's claim has been investigated by the Appellate Court and this Court in this Second Appeal and, therefore, if in fact, the defendants have got any title on the suit property, they may initiate appropriate proceeding before appropriate forum and the finding recorded in this appeal shall not operate as res-judicata in properly instituted proceeding. 13. In view of my above discussion, the substantial question of law is answered in favour of the appellants. In the result, this appeal is allowed. The impugned judgment and decree of the Lower Appellate Court is hereby set aside. The judgment and decree of the trial court is restored. In the facts and circumstances of the case, there shall be no order as to cost.