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2013 DIGILAW 412 (PAT)

Anwar Khan v. Anjum Pravez

2013-03-21

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned counsel for the appellant. 2. The present appeal under section 100 of the Code of Civil Procedure is directed against the judgement and decree dated 15-09-2011 and 21-10-2011 passed by learned Additional District Judge, I, Nawada in Title Appeal No. 03/ 1997 whereby he has affirmed the judgement dated 20-12-1996 and decree dated 04-01-1997 passed in Title (Eviction) Suit No. 27/1985 by learned Additional Munsif, I, Nawada. 3. The defendant-tenant is the appellant before this court. Learned trial court had decreed the suit filed on behalf of respondents in favour of the plaintiff directing the appellant to be evicted from the suit premises as well as for payment of arrears of rent of the disputed premises. The disputed property as described in schedule-A to the plaint was a hut situated on Khata No. 16, Plot No. 4511/6224 in police station and district Nawada. 4. The original plaintiff, Dr. Maizuddin, whose sons have been impleaded as party respondents in the present appeal, filed the Title (Eviction) Suit on the ground of personal necessity of the landlord for his own occupation of the suit premises as also on the ground that the defendants deliberately defaulted in paying rent to the plaintiff. 5. Briefly stated, the plaintiff in his suit claimed that the suit property, 49 decimals in area, was mistakenly recorded as only 9 decimals by the survey authorities, in the khatiyan in the possession of Lochan Khatik, as Sikmidar. He claimed that by operation of the provisions under the Bihar Tenancy Act, 1885 as also on the basis of his continuous possession over the land for several 12 years and further on the basis of oral purchase from superior tenant, the said Lochan Khatik acquired the status of Raiyat. The land was accordingly mutated in the name of Lochan Khatik. On the death of Lochan Khatik, the property devolved on his three sons, Banshi Khatik, Chhotelal Khatik and Sonelal Khatik. The plaintiff further claimed that wife of Sonelal Khatik sold 21½ decimals of land of plot No. 4510, 4513 and 4522/6224 through a registered sale deed dated 28-1-1957 to the plaintiff over which he was put in possession. The plaintiff, thereafter, constructed a few shops which were let out to Mumtaz Ahmad, Mashood Hussain, Md. Rafiq, Md. Siddiqui and Md. Rauf in October, 1977. 6. The plaintiff, thereafter, constructed a few shops which were let out to Mumtaz Ahmad, Mashood Hussain, Md. Rafiq, Md. Siddiqui and Md. Rauf in October, 1977. 6. Defendant No.1, who is the appellant herein, approached the plaintiff for construction of hut over plot No. 4511/6224 for running a shop. Such permission was granted, whereafter the defendant constructed a hut over the plot. The hut was constructed by the defendant No.1 and the tenancy started. 7. This is to be noted that it was specific case of the plaintiff that the construction cost of Rs. 90/- was adjusted against the rent for the months of November, December, 1977 and January, 1978. The plaintiff further pleaded that a tenancy deed was also executed in this regard with the stipulation that the defendant would pay a sum of Rs. 30/- per month on the 2nd day of every month. The defendant paid the rent, as per the plaintiff’s case, from November, 1977 to 1984 uninterruptedly but thereafter he became a defaulter. The plaintiff, who was a doctor, personally required the suit property for the purpose of running a medical clinic but inspite of notice to this effect to the defendants, the suit premise was not vacated, necessitating the plaintiff to file the eviction suit. 8. The defendants filed joint written statement disputing the very title of the plaintiff over the suit property and claiming their title over the suit property. The defendants, accordingly, asserted that there was no question of existence of any landlord- tenant relationship between the plaintiff and defendants and pleaded that the registered sale deed dated 28-01-1957 was forged and fabricated. The defendants disputed the plaintiff’s claim of having ever entered into the tenancy agreement with the plaintiff and reasserted his title over the suit property. The defendants also claimed that the plaintiff did not have any need of construction of any clinic for the patient and on this ground also they claimed that the suit was liable to be dismissed. 9. On the basis of rival pleadings the trial court framed altogether 11 issues including issue No. (iii), (iv), (viii) and (ix) which read as follows:– “(iii) Is the suit barred under provisions of Bihar Building Control Act? (iv) Are the defendants tenant of the plaintiffs? 9. On the basis of rival pleadings the trial court framed altogether 11 issues including issue No. (iii), (iv), (viii) and (ix) which read as follows:– “(iii) Is the suit barred under provisions of Bihar Building Control Act? (iv) Are the defendants tenant of the plaintiffs? (viii) Has the plaintiff personal necessity for the disputed premises (ix) Is the boundary given in schedule-I of the plaint with respect to the disputed premises true and whether the so-called hut and shop and house of defendant stand over portion of plot No. 4511/6224 as claimed by the plaintiff or on portion of plot without number under Khata No. 608 as per statement of defendant?” 10. The parties adduced respective evidence before learned trial court, both oral and documentary. Learned trial court, on the basis of evidence adduced in course of trial, came to a finding with reference to issue No. iv that there was relationship between plaintiff and defendants of landlord and tenant. Learned trial court relying upon exhibit-12, the lease deed between the plaintiff and defendants, and after dealing with other related evidence on record, came to a finding that the lease deed executed by the plaintiff in favour of the defendants was in accordance with law. The trial court rejected the defendants’ case that the said sale deed dated 28-01-1957 was forged and fabricated. 11. On the issue of personal necessity also, learned trial court decided the same in favour of the plaintiff that he had personal necessity to have the premises for his own occupation. Learned trial court held, prima facie, that the plaintiff had title over the suit property. 12. The most crucial point which the defendants raised before the trial court was that the suit was not maintainable under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, as according to them even if for the sake of argument it was presumed that the suit property was leased out to the defendants, the same could not be said to be a building within the meaning of Section 2 (b) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. It was pointed out before the trial court that, as per his own case, the plaintiff is said to have rented open land without any construction over it and, in such circumstance, even if construction was raised by the defendants subsequently on that land, the same could not be treated to be a building within the meaning of the Act. However, learned trial court decreed the suit holding that the suit was maintainable under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 and that there was relationship of landlord and tenant and also the plaintiff had personal necessity to occupy the suit premises and that the defendants had defaulted in paying rent. 13. The defendants aggrieved by the judgement and decree of the trial court preferred first appeal before learned first appellate court, that is, Additional District Judge, I, Nawada who concurred with the findings of fact arrived at by learned trial court and dismissed the suit after dealing with each and every issue framed by learned trial court and the evidence available on record with respect to each issue. 14. Mr. Devendra Prasad Singh, learned counsel appearing on behalf of the appellant, has strenuously contended that the courts below wrongly held the premise to be a building within the meaning of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. He submits, with reference to a Supreme Court judgement reported in AIR, 2000, SC, 1640 (Kamla Devi Vs. Laxmi Devi), that the said Act will have no application on a vacant land. He submits, accordingly, that the present appeal involves a substantial question of law on this aspect which has wrongly been decided by the courts below and which has substantially affected the rights of the defendants. 15. Before I advert to his other submission which, according to learned counsel for the appellant, constitutes a substantial question of law for the purpose of adjudication of the present second appeal, certain events, from the date of passing of judgement and decree by learned trial court need to be taken note of. 16. After passing of judgement and decree by learned trial court, the defendants filed Title Appeal No. 13/1997. The plaintiff, on the other hand filed, Execution case vide No. 6/03/ 2/97 for delivery of possession. 16. After passing of judgement and decree by learned trial court, the defendants filed Title Appeal No. 13/1997. The plaintiff, on the other hand filed, Execution case vide No. 6/03/ 2/97 for delivery of possession. The operation of execution of the order of learned trial court was stayed by the first appellate court at the time of admission. The said appeal, however, stood dismissed for default on the part of the appellant. The appellant filed restoration petition vide Misc. Case No. 2/2003 under Order 41 Rule 19 of the Code of Civil Procedure. The said Misc. Case No. 2/2003 was also dismissed for default on 17-02-2004. Thereafter, the appellant preferred Miscellaneous Appeal vide M.A. No. 87/04 before this court for setting aside the order passed in Misc. Case No. 2/2003. Because of the dismissal of the first appeal, the execution case No. 6/03 proceeded and the plaintiff got possession over the suit premises. After getting the delivery of possession, the plaintiff sold away the suit premises to one Salman Raghib vide registered sale deed No. 3756 of 2008 and put the purchaser in possession of the suit premises. The purchaser demolished the premises and constructed a pucca structure thereon. This court, subsequent thereto, vide order dated 08-07-2008 passed in M.A. No. 87/2004 set aside the order passed in Misc. case No. 2/2003. It was in view of this court’s order that the Title Appeal No. 13/97 revived, which was earlier dismissed for default. 17. Learned counsel for the appellant, in the background of these facts, would submit that once the first appeal was restored to its original file, the entire order staying the execution case also revived and it was incumbent upon the first appellate court first to have restored the possession of the defendants over the suit premises before final hearing of the first appeal. According to him, the petition which he had filed under section 144 of the Code of Civil Procedure before the first appellate court should have been decided first before deciding the appeal. This, according to him, is a substantial question of law which requires determination by this court in the present second appeal. Learned counsel has placed reliance upon a judgement of the Supreme Court reported in 2004 SAR (Civil) 553 SC in the case of Vareed Jacob Vs. This, according to him, is a substantial question of law which requires determination by this court in the present second appeal. Learned counsel has placed reliance upon a judgement of the Supreme Court reported in 2004 SAR (Civil) 553 SC in the case of Vareed Jacob Vs. Sosamma Geevarghese and others to contend that interlocutory order passed by the first appellate court at the time of admission automatically revived with the restoration of the appeal which was dismissed for default. 18. So far as the first substantial question of law as suggested by learned counsel for the appellant, it would be apt to keep in mind the pleadings of the plaintiff and the defendants before the courts below. The plaintiff pleaded that the defendants sought permission to construct a hut on the vacant land so as to establish a shop there, which permission was granted. As per the plaintiff’s case the cost of construction of hut was to be adjusted against payable rent. Tenancy started after construction of the hut over the suit land. It is not a case here that the construction was made by the defendants themselves at their own cost. The construction on the open land did not belong to the defendants as the cost of construction was adjusted against the three months rent of the premises. 19. The reliance placed by learned counsel for the appellant upon the judgement of the Apex court in the case of Kamla Devi (supra) is misplaced for the reason that by raising structure over the vacant land the defendants did not create any proprietary rights in the structure as the cost of construction was adjusted from the payable rent and it was the plaintiff who had the proprietary rights over the “building”. In view of the facts as alleged by the plaintiff in the plaint, in my opinion, it cannot be said that suit itself was not maintainable as it related to letting out a vacant land to the defendants. In the case of Kamla Devi (supra) the ratio has been laid down in paragraph 11 which reads as follows:– “When, in any case, the question arises whether an open plot of land or a plot of land with structures thereon, was let out, the Court has to determine the same on the facts of that case. In the case of Kamla Devi (supra) the ratio has been laid down in paragraph 11 which reads as follows:– “When, in any case, the question arises whether an open plot of land or a plot of land with structures thereon, was let out, the Court has to determine the same on the facts of that case. In deciding this question, it will be useful to bear in mind that if the plot with structure was let out it will fall within the meaning of the term ‘premises’ but if open plot without any structure was let out then it does not fall within the meaning of the term ‘premises’. It is immaterial whether the tenant raised structures before the creation of the tenancy of after he was let in as a tenant. In either case, the tenant alone will have the proprietary rights in the structure and not the land lord.” 20. The facts in the case of Kamla Devi (supra) were entirely different. The structure in that case was raised by the tenant which did not belong to the landlord. The Supreme Court taking into account the facts of that case held in paragraph 12 that the structure belonged to the tenant who could, at any time, demolish the same and take away the material. Further, the said construction was said to have been made unauthorizedly by the tenant and the Supreme Court held that the landlord did not acquire any right in the structure. Facts of the present case are different. Once the cost of construction in raising the hut was alleged to have met by adjusting the same against payable rent for three months, it could not be said that the defendants acquired proprietary rights in the structure and, therefore, what was let out to him was a vacant land which could not be treated to be a building within the meaning of Bihar Building (Lease, Rent and Eviction) Control Act, 1982. 21. In such view of the matter, the submission made on behalf of the appellant cannot be accepted and according to me this does not constitute a substantial question of law. 22. 21. In such view of the matter, the submission made on behalf of the appellant cannot be accepted and according to me this does not constitute a substantial question of law. 22. So far as the next submission of learned counsel for the appellant is concerned that learned first appellate court wrongly proceeded with the hearing of the first appeal without deciding his application under section 144 of the Code of Civil procedure and restoring possession of the suit premises in favour of the appellant/ defendants, I am of the view that the question of restitution did not arise as by the time the first appeal was directed to be restored, the premises in question did not exist. 23. Learned counsel for the appellant further submitted that the suit was not maintainable under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 also for the reason that the case involved disputed questions of title and it was beyond the jurisdiction of the court exercising power under Bihar Building (Lease, Rent and Eviction) Control Act, 1982 to have gone into the question of title interse parties. 24. I am of the view, in this regard, that in an eviction suit if a question of title is raised on behalf of the contesting parties, the courts may enter into such dispute to have their satisfaction as to which party has the prima facie title over the disputed property. There is concurrent findings of fact that there is relationship of landlord and tenant between the parties which according to me does not appear to be perverse, without any evidence or contrary to evidence. Concurrent findings of fact arrived at by the courts below cannot, in such circumstances, be interfered with in exercise of power under section 100 of the Code of Civil Procedure. Accordingly, I do not find that the second appeal involves any substantial question of law. The appeal does not merit admission and is, accordingly, dismissed.