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2013 DIGILAW 645 (PAT)

Urmila Devi v. Punam Sinha Raman

2013-06-17

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned counsel for the appellants and learned senior counsel for the respondent. 2. The heirs of original defendant, Mahendra Prasad Mehta, are appellants in the present appeal. The second appeal is directed against the judgement and decree dated 14-03-2012 passed in Title Appeal No. 40/2006 by learned Additional District and Sessions Judge, F.T.C. IV, Purnia whereby he affirmed the judgement dated 12-08-1998 and decree dated 26-08-1998 passed in Title Suit No. 60/89 by learned Sub Judge- I, Purnia. 3. The suit was filed by the respondent, Dr. Punam Sinha for eviction of the defendants/ appellants first set from the suit premises described in schedule- A to the plaint and also for realization of arrears of rent amounting to Rs. 2550/- being rental from March, 1988 till July, 1989. The said premises are land and building located in Mohalla Bhatta Bazar on the south east of Zila School compound in the town of Purnia in Ward No. 51 (old), new Ward No. 13 of Purnia Municipality bearing holding No. 41/127, M.S. plot No. 886 measuring about 10 kathas. The plaintiff’s case, as per plaint, was that originally the suit property belonged to one Mukund Lal Bishwash, who had sold the same to Prafulla Chandra Majumdar through a registered deed dated 26-03-1946. The said Prafulla Chandra Majumdar sold the property to Dr. Sushil Chandra Majumdar by registered deed dated 22-08-1952, who came in possession thereof and got his name mutated in the Sirista of ex-landlord and in the register of Purnia Municipality and constructed his house and outhouses over the land which was initially numbered as holding No. 103 Ward No. 5 (old) of Purnia Municipality and was subsequently numbered as holding No. 127 Ward No. 5(old) and thereafter renumbered as holding No. 41/127 Ward No. 13 (new) of the said Municipality. After the death of Dr. Sushil Chandra Majumdar, his heirs sold the said property to Smt. Hansi Singh, wife of Lal Mohan Singh, and Kumari Soma Singh daughter of said Lal Mohan Singh through registered deed dated 12-07-1986. The said purchasers appointed Lal Mohan Singh as their attorney who through two registered sale deeds dated 09-03-1988 sold the suit premises and house to the plaintiff for valuable consideration and since the date of purchase plaintiff/ respondent became sole owner of the suit premises. 4. The said purchasers appointed Lal Mohan Singh as their attorney who through two registered sale deeds dated 09-03-1988 sold the suit premises and house to the plaintiff for valuable consideration and since the date of purchase plaintiff/ respondent became sole owner of the suit premises. 4. The plaintiff/ respondent pleaded that when she took possession over the suit property she found original defendant, namely, Mahendra Prasad Gupta residing with his family in the eastern four rooms which had asbestos roof in the courtyard of the house and, on enquiry, the defendant informed him that he had been living there since 1979 as a monthly tenant under Dr. Sushil Chandra Majumdar on monthly rent of Rs. 150/-. 5. The plaintiff, in order to show her necessity to have the occupation of the premises for her personal use, stated that her husband had been posted as Civil Assistant Surgeon in Sadar Hospital, Purnia and she was also posted as Civil Assistant Surgeon, Purnia but she, being on study leave for completing her post graduate course, was residing in the ladies hostel, Patna Medical College Hospital, Patna. Her husband was residing in Mohalla Madhubani, Purnia and whenever she came to Purnia, she resided with her husband. She purchased the premises and house for her own residence along with her husband and family members and also for establishing her clinic therein. She contended that she occupied the main suit building wherein she, her father-in-law, and other relatives were residing and as they required the portion in which the defendant was residing for their own residence and purposes, she requested the original defendant several times to vacate the suit premises. The original defendant, however, refused and threatened her husband to oust him from the main building. She alleged that she lodged the information to police station to this effect. 6. The plaintiff subsequently pleaded that when the original defendant had learnt about the sale of the said property to Smt. Hanshi Singh and Kumari Soma by the heirs of late Dr. Sushil Chandra Majumdar by registered sale deed dated 12-07-1986, he got a lawyer’s notice dated 03-09-1986 served upon heirs of the said Dr. 6. The plaintiff subsequently pleaded that when the original defendant had learnt about the sale of the said property to Smt. Hanshi Singh and Kumari Soma by the heirs of late Dr. Sushil Chandra Majumdar by registered sale deed dated 12-07-1986, he got a lawyer’s notice dated 03-09-1986 served upon heirs of the said Dr. Sushil Chandra Majumdar in which he admitted to have paid the monthly rental of the suit premises till the month of May, 1986 and that he had sent the rental for June, 1986 to them in the month of July, 1986 which was said to have been refused by them. In the said notice, the original defendant is said to have claimed adjustment of Rs. 1901. 45, which was spent for the repair of the suit premises in his occupation in the month of December, 1983 under their direction. In the background of these facts, inter alia, the suit was filed. 7. The original defendant contested the suit and filed written statement disputing the title of Mukund Lal Bishwash over the suit property and contended that said Mukund Lal Bishwash, was an eminent de facto manager of Champanagar estate of Rajbannaili and in order to grab the properties of the estate, he might have executed Kabuliyat in the year 1940 purporting to be a deed of settlement for non agricultural purposes. He pleaded that the suit land was settled with Saukhi Mandal in the year 1927 for horticulture purposes by granting rent receipt to him. He pleaded that the said Saukhi Mandal came in possession by growing vegetables. After his death, his son Ganeshi Mahto (Appellant 2nd set) inherited the suit property and got his name mutated in Sirista of ex- landlord on payment of rent and obtained rent receipts from them. He, however, pleaded that some of the rent receipts have destroyed by lapse of time. The ex- landlord, however, accepted him as tenant till the intermediary interest vested in the State of Bihar under the Land Reforms Act and the ex-landlord submitted returns showing him as tenant. The defendant claimed that Prafulla Chandra Majumdar had tried to influence the said Ganeshi Mahto, defendant/ appellant No.6 to sale the property to him, but as he did not agree, he in collusion with Mukund Lal Bishwash got the sale deed executed. The defendant claimed that Prafulla Chandra Majumdar had tried to influence the said Ganeshi Mahto, defendant/ appellant No.6 to sale the property to him, but as he did not agree, he in collusion with Mukund Lal Bishwash got the sale deed executed. He pleaded that as son-in-law of Ganeshi Mahto, he resided in the premises with his family as free tenant under him since 1973 to the knowledge of all including the plaintiff and her alleged predecessors in interest. 8. It was pleaded that late Dr. Sushil Chandra Majumdar was family physician of Ganeshi Mahto and on his request Ganeshi Mahto had allowed him to live in pucca house of the said premises which had been constructed by him after death of his father. However, said Dr. Sushil Chandra Majumdar betrayed the confidence of Ganeshi Mahto and got his own name entered in the Municipal records and succeeded in getting holding open in his own name after destroying the trace of the name of Ganeshi Mahto in Municipal records. It was further pleaded that some minor remodeling of the house of Ganeshi Mahto had been carried on by Dr. Sushil Chandra Majumdar with the permission of Ganeshi Mahto but after death of late Dr. Sushil Chandra Majumdar, his heirs shifted their residence to Kolkata delivering vacant possession of the suit premises to Ganeshi Mahto, who lived there for some time, and thereafter inducted the original defendant, that is, Mahendra Prasad Mehta in 1973 as free tenant to live in the house as defendant No.1 was married to his daughter in the year 1971. The original defendant also claimed that his father-in-law, Ganeshi Mahto, had attempted to pay rent to the State of Bihar, on the basis of tenancy ledger prepared by the State according to the return from the ex-landlord, but the authorities of the State refused to receive rent from him saying that case for compensation was pending between Rajbannaili and the Government and until that case was decided the State would not grant any receipt to the settlees. The defendant specifically denied to have admitted himself to be a tenant in the suit premises under Dr. Sushil Chandra Majumdar. 9. The defendant specifically denied to have admitted himself to be a tenant in the suit premises under Dr. Sushil Chandra Majumdar. 9. Ganeshi Mahto was not originally impleaded as party in the suit but on a plea of non joinder of party he was impleaded as defendant No.2 in the suit, who also filed his written statement supporting the case of the case of the rest of the defendants. 10. On the basis of rival pleadings, learned trial court framed eight issues including the following two main issues for determination:– “(iii) Is there any relationship of landlord and tenant between the plaintiff and defendants with regard to suit premises? (v) Does the plaintiff require the suit premises reasonably and in good faith for her own use and occupation?” 11. After framing of the issues, the parties led their evidence in support of their respective cases, both oral and documentary. Learned trial court, on the basis of such oral as well as documentary evidence adduced in course of trial including Exhibit- 8 series, being letters written by the original defendant to Pratibha Majumdar; Exhibit-9 series, being money order coupons through which original defendant remitted rent and Exhibit-10, the lawyer’s notice dated 09-03-1986 served under the instruction of original defendant to Smt. Pratibha Majumdar, wife of Dr. Sushil Chandra Majumdar, as also exhibit-17; the written report of the brother of the original defendant filed in police station, came to a finding that heirs of late Dr. Sushil Chandra Majumdar were admitted to be landlord of the suit premises and house by the original defendants. On the basis of register of holding, Exhibit-3, learned trial court came to a finding that the property in dispute stood in the name of Prafulla Chandra Majumdar and further it was evident from Exhibits-3A and 3B that it stood in the name of Dr. Sushil Chandra Majumdar and subsequently, in the name of Lal Mohan Singh thereafter, Dr. Punam Sinha, the plaintiff. On the basis of evidence, learned trial court rejected the plea of the defendant that Dr. Sushil Chandra Majumdar had got his name entered in the Municipal records on destroying the name of Ganeshi Mahto from such records. 12. Sushil Chandra Majumdar and subsequently, in the name of Lal Mohan Singh thereafter, Dr. Punam Sinha, the plaintiff. On the basis of evidence, learned trial court rejected the plea of the defendant that Dr. Sushil Chandra Majumdar had got his name entered in the Municipal records on destroying the name of Ganeshi Mahto from such records. 12. Dealing with the documentary evidence adduced by the defendants, learned trial court held that rent receipts of ex-landlord (Exhibit- A/4) did not even bear the stamp of ex-landlord nor any surviving member of the family of the ex-landlord was examined to say that the suit land was orally settled with Saukhi Mandal. Exhibit-A/3 was also not accepted because it was neither stamped nor anything was mentioned as to the period for which the rent was paid. Learned trial court did not rely upon exhibit-B, certified copy of the return filed in compensation case, on the ground that no surviving member of the family of ex-landlord had been examined to say that such return was filed at the time of vesting of Jamindari to the State of Bihar. 13. On the basis of such evidence adduced in course of trial, learned trial court held that the plaintiff was the “landlord” within the meaning of section 2(f) of the Bihar Building Lease Rent Eviction (Control) Act, 1982. Deciding issue No.3, learned trial court came to a finding that there existed landlord and tenant relationship between the plaintiff and defendants (heirs of original defendant who died during the pendency of the suit). 14. Deciding issue No.5, learned trial court considered the pleadings of the parties as also the evidence adduced by them. Referring to written statement, learned trial court found that there was vague denial of the plaintiff’s case of bonafide personal necessity for occupation of the suit house. Defendants replied the plaintiff’s case of personal requirement taking the plea that there being no relationship of landlord and tenant, there was no question of personal requirement of the plaintiff or possession of the suit house. In such view of the matter, learned trial came to a finding that the plaintiff proved that she required the suit premises and house reasonably in good faith for her personal use and occupation. 15. In such view of the matter, learned trial came to a finding that the plaintiff proved that she required the suit premises and house reasonably in good faith for her personal use and occupation. 15. Learned trial court, while dealing with other issues, held the suit to be maintainable and plaintiff entitled to a decree of eviction of defendants from the suit premises and the building standing thereon as described in schedule-A of the plaint and for arrears of rent amounting to Rs. 2550 for the month of March, 1988 till July, 1989 at the rate of Rs. 150/- per month as mentioned in schedule-B of the plaint. 16. An appeal was preferred by the defendants/ appellants vide Title Appeal No. 40/2006. On the basis of pleadings, evidence recorded in course of trial as well as plea taken in course of hearing of appeal, learned first appellate court framed following two points for consideration:– “(i) Whether the plaintiff/ respondent or defendants/ appellants had title over the suit premises? (ii) Whether defendant first set was the tenant of the plaintiff/ respondent or the defendant second set/ appellant second set was a rent free tenant of the suit premises?” 17. After considering the evidence on record and pleadings of the parties, learned first appellate court, on appraisal and analysis of evidence on record, concurred with the findings of fact arrived at by learned trial court and held specifically that the plaintiff had right and title over the suit property and the defendant/ appellant second set had no concern with the suit property. Learned first appellate court, on the basis of oral as well as documentary evidence on record, came to a finding, with reference to exhibit- 8 series and exhibit-9 series that the original defendant was the tenant of Dr. Sushil Chandra Majumdar. 18. Learned first appellate court dismissed the appeal and confirmed the judgement and decree passed by learned trial court vide impugned judgement and decree dated 14-03-2012 and 28-03-2012, respectively. Hence, this second appeal. 19. Learned counsel appearing on behalf of the appellants submitted that the courts below failed to appreciate the case of the defendants in its true perspective and came to an erroneous finding that original defendant was a monthly tenant of late Dr. Sushil Chandra Majumdar completely ignoring the case of the original defendant that he was not the monthly tenant of Dr. Sushil Chandra Majumdar completely ignoring the case of the original defendant that he was not the monthly tenant of Dr. Sushil Chandra Majumdar, rather he was inducted as permissive rent free tenant in the suit premises by his father-in-law, Ganeshi Mahto, the defendant/ appellant 2nd set, who happened to be son of Saukhi Mandal. 20. Learned counsel for the appellants has given much emphasis on his challenge to the reasoning assigned by the courts below for not accepting the certified copy of the return filed by the ex-landlord in compensation case on the ground that no surviving member of the family of ex-landlord had been examined to say that such return was filed at the time of vesting of Jamindari to the State of Bihar. 21. The grounds for assailing the judgements of the courts below raise only questions of fact. The courts below, on the basis of entire material on record, came to a specific finding that the plaintiff had the title over the suit property and the original defendant, who claimed to be rent free tenant of his father-in-law, Ganeshi Mahto, had no concern with the suit property. Learned courts below, dealing with defendants case, came to a finding that the rent receipts exhibited in course of trial were not acceptable as these were not stamped and no period was mentioned for which the rent was said to have been paid. Learned courts below also came to a finding that the defendants failed to bring on record, by way of evidence, any material to show that name of Ganeshi Mahto was entered in the Municipal records at any point of time. Learned courts below appraised and considered exhibits- 8, 9, 10 and 17 to come to a conclusion that there was evidence to suggest defendant admitted to be a tenant in the suit premises which are communications made by him to Dr. Sushil Chandra Majumdar, the money order coupons, lawyer’s notice and the written report of the brother of defendant filed in the police station. After appraising and weighing the competing evidence on record the courts below came to a concurrent finding that Ganeshi Mahto (appellant No.6) had no concern with the suit premises. The courts below did not accept the plea of the original defendant that he was rent free tenant of said Ganeshi Mahto. After appraising and weighing the competing evidence on record the courts below came to a concurrent finding that Ganeshi Mahto (appellant No.6) had no concern with the suit premises. The courts below did not accept the plea of the original defendant that he was rent free tenant of said Ganeshi Mahto. The positive finding of fact is based on analysis, appraisal and scrutiny of evidence on record, that there existed relationship of landlord and tenant between the original defendant and Dr. Sushil Chandra Majumdar, the vendor of plaintiff’s vendor, which cannot be termed as perverse in the present case so as to constitute a substantial question of law. 22. The jurisdiction of the High Court in exercise of power under section 100 of the Code of Civil Procedure is limited. It is settled proposition of law that the findings of fact arrived at by learned first appellate court are binding unless such findings are perverse. In the present case, it cannot be said that the findings arrived at by learned first appellate court, concurring with findings of learned trial court, is without evidence. It can also not be said that such findings are contrary to the evidence adduced in course of trial, as have been discussed in the impugned judgement. On the basis of reading of the judgements of the courts below, I am of the view that the courts below have duly considered the evidence on record. The concurrent findings of facts arrived at by learned first appellate court cannot be challenged on the ground of being erroneous in a second appeal under section 100 of the Code of Civil procedure. The dispute involved in the present case is purely factual and the points which have been raised in the present second appeal do not raise any question of law which can be said to be substantial for the purpose of entertaining this appeal under section 100 of the Code of Civil Procedure. In view of above, as I find that the second appeal does not involve any substantial question of law, it does not deserve to be admitted for hearing and is, accordingly, dismissed.