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2013 DIGILAW 682 (PAT)

Lalita Devi v. Surajdeo Singh

2013-06-25

JYOTI SARAN

body2013
ORDER This Civil Revision application under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the ‘Act’) is directed against the judgment and order dated 27.11.2006/08.12.2006 passed by learned Civil Judge-2nd, Saran at Chapra in Eviction Suit No. 3 of 2002, whereby the learned trial court has been pleased to decree the suit in favour of the plaintiff and ordered for eviction of the defendant who is the petitioner before this Court together with a direction to vacate the suit premise within a period of three months from the date of judgment and order, failing which the same would be vacated through the process of the Court. 2. I shall be referring to the party position as it stood before the trial court. 3. The civil revision application had been filed after the expiry of the period prescribed under the Act and thus was accompanied with a petition for condonation of delay. A Bench of this Court while hearing on the limitation petition was pleased to order for condonation thereof vide order passed on 08.02.2012 subject to payment of Rs. 15,000/- by way of cost to the plaintiff-opposite party. The sole petitioner had also deceased during the pendency of the proceedings and was substituted under the orders of this Court dated 08.04.2009. After appearance of the opposite party and upon completion of the pleadings, the matter has been taken up for disposal at the stage of admission itself. 4. The suit in question was instituted by the sole opposite party for eviction under Section 11(1)( c) of the Act on grounds of bona fide requirement and in good faith. The suit property is a house standing over plot no. 909 of khata no. 208 having an area of two kathas. The area of the plot in question is 7 kathas and 10 dhurs. 5. The case of the plaintiff is that the plot in question admeasured 15 kathas and one dhur and was recorded in the name of his great grand father Bahadur Singh. The genealogical table is given at paragraph-2 of the plaint and according whereto Bahadur Singh was survived by three sons, namely, Mahendra Singh, Ram Chandra Singh and Ram Charitra Singh. The plaintiff and his brother Ravindra Singh claim to be the grandson of Ram Charitra Singh. The genealogical table is given at paragraph-2 of the plaint and according whereto Bahadur Singh was survived by three sons, namely, Mahendra Singh, Ram Chandra Singh and Ram Charitra Singh. The plaintiff and his brother Ravindra Singh claim to be the grandson of Ram Charitra Singh. According to the plaintiff a partition took place amongst the heirs of Bahadur Singh in the year 1964 and under a family arrangement plot no. 909 of khata no. 208 admeasuring 15 katha and 1 dhur was allotted in the share of Raj Kumar Singh and Shivjee Singh, the two sons of Ram Charitra Singh who was the third son of Bahadur Singh. According to the plaintiff the said Raj Kumar Singh and Shivjee Singh came in exclusive possession of the plot in question. It is contended that in 1967 a further partition took place between the brothers and by a mutual agreement, the northern portion of the said plot measuring 7 kathas 10 dhurs was allotted in the share of Raj Kumar Singh and the southern portion having similar area was allotted in the share of Shivjee Singh. As all partition had been done by family arrangement, hence for proper identification of the shares and the rentals payable thereon, the legal heirs of Bahadur Singh filed a Jamabandi Partition Suit No. 72 of 1980-81 and under the order of the Circle Officer the rentals for the land was divided and the plaintiff is paying rent in respect of 7 kathas and 10 dhurs of the plot no. 909 towards its northern portion. It is further contended that after the death of Raj Kumar Singh the father, the plaintiff and his brother Ravindra Singh came over the physical possession of the land and constructed two houses from their joint fund. It is contended that the defendant has his own house in plot no. 897 and 901 which became dilapidated in the year 1998. On the request made by the defendant, he was permitted to live in the house of the brother of the plaintiff, namely, Ravindra Singh. The defendant, it was contended, had assured the plaintiff that he would construct his own house within three years and would thereafter vacate the rented house. It is the case of the plaintiff that considering the necessity of the defendant, they let out the house on a rental of Rs. 250/- per month. The defendant, it was contended, had assured the plaintiff that he would construct his own house within three years and would thereafter vacate the rented house. It is the case of the plaintiff that considering the necessity of the defendant, they let out the house on a rental of Rs. 250/- per month. It is further the case of the plaintiff that the defendant after moving into the house initially made payment of rent but stopped making payment with effect from May, 2002. It was contended that the plaintiff would be filing a separate suit for realization of the rent. The suit was instituted by the plaintiff on behalf of his brother Ravindra Singh who was going to retire soon and would require the house for his independent living. It was stated that despite request being made, the defendant did not choose to move out nor did make payment of the rent and hence the suit. According to the plaintiff the building of the house in question was required bonafidely and in good faith for accommodation of his brother who was to retire. A legal notice also went unheeded. The defendant appeared in the suit and after seeking leave to contest as mandated under Section 14(4) of the Act filed his written statement. Apart from raising routine objections regarding the maintainability of the suit, the defendants contested the genealogical table given by the plaintiff. According to the defendant the parties were descendant from a common ancestor, Govind Singh who had three sons, namely, Mahabir Singh, Ram Sevak Singh and Bahadur Singh. It was case of the defendant that whereas he is a descendant from the branch of Mahabir Singh, the plaintiff is a descendant from Bahadur Singh. According to him no partition took place in the year 1967 nor the plot no. 909 was ever allotted to Shivjee Singh. The defendant also denied the division of plot no. 909 by mutual arrangement between the plaintiff’s father and his brother. According to the defendant, following the earthquake in the year 1934 the ancestors of the parties to the suit handed over plot no. 909 to the ancestor of the defendant in exchange of plot no. 897 and 901 and which was by way of a mutual oral exchange. According to the defendant his ancestors were in possession over the plot no. 909 since 1936, after making a mud built house thereon. 909 to the ancestor of the defendant in exchange of plot no. 897 and 901 and which was by way of a mutual oral exchange. According to the defendant his ancestors were in possession over the plot no. 909 since 1936, after making a mud built house thereon. He also claims payment of rent to the state and electrical connection in his own name. The plea of the plaintiff that he permitted the defendant to stay in the disputed house as his house had got damaged, was denied as a false and concocted statement. The defendant also denied making payment of any rent to the plaintiff. It is further his case that the brother of the plaintiff Ravindra Singh was peacefully residing at Hajipur after building a house and thus the suit had been instituted on a false pretext. It was the case of the defendant that the house over plot no. 909 had been built by him from his own fund and hence there was no occasion for him to make payment of any rent. 6. On the basis of the rival pleadings and the evidence led by the parties, the learned trial court after framing issues relating to the matter in contest, decreed the suit in favour of the plaintiff while directing the defendant to vacate the premise and hence this Civil Revision application. 7. Mr. Anil Kumar Jha, learned Senior Counsel has appeared on behalf of the petitioner while the plaintiff-opposite party has been represented by Mr. Bindhyachal Singh. As I had mentioned at the very outset, the sole defendant had deceased during the pendency of this proceedings and has been substituted. The defendant had initially filed an appeal bearing Title Appeal No. 105 of 2006 questioning the judgment and decree passed in Eviction Suit and which appeal was dismissed vide judgment and order dated 02.09.2008 on grounds of maintainability in view of the remedy provided under Section 14(8) of the Act. 8. Mr. Jha, learned Senior Counsel appearing for the defendant, while questioning the judgment and decree under challenge reiterated the contentions made by the defendant in the court below as also found in his written statement. The genealogical table was contested and it was further submitted that since the house belonged to the brother of the plaintiff, namely, Ravindra Singh hence the plaintiff could not have instituted the suit on behalf of his brother. The genealogical table was contested and it was further submitted that since the house belonged to the brother of the plaintiff, namely, Ravindra Singh hence the plaintiff could not have instituted the suit on behalf of his brother. The plea taken by the defendant in the court below regarding the oral exchange and that the plot in question was given to the ancestor of the defendant by the ancestor of the plaintiff in exchange of plot no. 897 and 901, was again canvassed. The submissions of Mr. Jha, learned Senior Counsel appearing for the defendant can be summarized as follows:– (i) No issue has been framed by the trial court regarding the personal necessity of Ravindra Singh who is not even a party to the suit; (ii) No document has been furnished by the plaintiff to demonstrate the relationship of landlord and tenant; (iii) There is no evidence of payment of rent; (iv) Although the trial court has relied upon Ext.-4 which is stated to be a Khatiyan but there is no such exhibit on the record; (v) The trial court has decided the issue of title when it was only required to decide whether there existed a landlord-tenant relationship between the parties; (vi) There is no discussion in the judgment as to the evidence led by the defendant rather the trial court has recorded its conclusion only on the basis of the plaintiff’s evidence. (vii) Although the matter is to be disposed in a summary manner but the court below has entered into the issues of title and the judgment is in a narrative form. 9. Mr. Singh in support of his submission has relied upon the following judgments:– (a) 1999(2) PLJR 148 (Maheshwar Prasad Sharma Vs. Shobha Devi); Paragraph-5 (b) 2004(1) PLJR (SC) 28 (Radha Devi Vs. Deep Narayan Mandal & Ors.) (c) 2003(1) PLJR (SC) 171 (Savitri Sahay Vs. Sachidanand Prasad) 10. With reference to the judgment of the Supreme Court reported in 2003(1) PLJR (SC) 171, it was submitted that a finding of the court below has to be based on evidence and since the trial court has not examined the evidence of the defendant, it would not preclude the High Court from examining the same. Mr. Jha on the basis of issues formulated, submitted that the judgment and order under challenge is perverse on the face of it and cannot be upheld. 11. Mr. Jha on the basis of issues formulated, submitted that the judgment and order under challenge is perverse on the face of it and cannot be upheld. 11. The argument of Mr. Jha has been contested by Mr. Bindhyachal Singh appearing for the plaintiff-opposite party and who submits that this Court in exercise of its revisional jurisdiction under the Act would not evaluate the evidence led by the parties and since the judgment and order under challenge is upon appreciation of the evidence available on record, there is no cause for interfering with the same. With reference to the statement made in paragraph-6 of the plaint it was submitted that although the brothers had constructed two houses on the piece of land in question but no partition has taken place and the property is joint. With reference to a judgment of this Court reported in 2004(1) PLJR 462 (Bhola Prasad Sah & Ors. Vs. Ram Dhani Prasad & Ors.) paragraph-9, it was submitted that a co-sharer also can maintain a suit. Responding to the argument of Mr. Jha that no issue on personal necessity was framed by the court below, it was submitted that the issue no. 7 relatable to partial eviction would take into its ambit the issue of personal necessity since the issue of partial eviction is only a consequence to a plea of bonafide requirement and in good faith. He submits that a finding to that effect can be found at paragraph-29 to 33 of the judgment. On the issue of landlord-tenant relationship and payment of rent, learned counsel with reference to Ext. 3 series submitted that evidence of payment of rent are there on record. It was submitted that the khatiyan itself proved the title of the plaintiff since the name of the owner is mentioned as Bahadur Singh and as per the admission of the defendant himself, the plaintiff is a descendant of Bahadur Singh. With reference to the oral evidence led on the point of tenancy of the defendant under the plaintiff, learned counsel referred to Section 59 of the Evidence Act to submit that the oral evidence is sufficient to prove this fact. Learned counsel in support of his submission has referred to a judgment of this Court reported in 2010(4) BBCJ (V) 349 (Chandradeo Kumar Vs. Shri Krishn Prasad) paragraph 22. Learned counsel in support of his submission has referred to a judgment of this Court reported in 2010(4) BBCJ (V) 349 (Chandradeo Kumar Vs. Shri Krishn Prasad) paragraph 22. On the issue of the procedure required to be followed by the trial court to adjudicate such matters, learned counsel with reference to a judgment of this Court reported in 1998(2) PLJR 101 (Kailash Prasad Vs. Smt. Krishna Devi) submitted that unless any prejudice is shown, such objections should be rejected outrightly inasmuch as these are dilatory tactics being adopted by the defendant. Learned counsel with reference to the provision of Section 116 of the Evidence Act submitted that the defendant is estopped from questioning the title of the plaintiff. It was submitted that since no evidence to the contrary has been led by the defendant, hence the tenancy would be admitted. Learned counsel referring to another judgment of this Court reported in 2009(4) BBCJ (IV) 356, submitted that an existence of title of the plaintiff is itself sufficient for directing eviction of the defendant. Learned counsel thus submitted that the judgment and order impugned does not warrant any interference. 12. Mr. Jha in his short reply to the arguments of the plaintiff submitted that even when an issue of title was being contested, the trial court did not bother to frame issue of bona fide requirement. Mr. Jha referred to a judgment of this Court reported in 2012(3) PLJR 664 para 8, in support of his submission. Mr. Jha next referring to a judgment of the Supreme Court reported in AIR 2011 SC(Civil) 1776: (2011)8 SCC 249 (Ram Rameshwari Devi Vs. Nirmala Devi) submitted that the relevance of framing of the issues have been explained in the judgment by the Supreme Court and since the trial court has failed to frame the issue of bona fide requirement, hence the judgment cannot be upheld. 13. I have heard learned counsel for the parties and I have perused the materials on record. 14. The scope of intervention in a judgment and order passed under the Act in exercise of revisional jurisdiction is well outlined. 13. I have heard learned counsel for the parties and I have perused the materials on record. 14. The scope of intervention in a judgment and order passed under the Act in exercise of revisional jurisdiction is well outlined. It is by now well settled that unless a judgment and order under the Act is found to be bordering on perversity or has been passed in violation of the statutory procedure, neither this Court would interfere with the same merely on a second possible opinion nor would this Court delve into appreciation of evidence led by the parties except to satisfy itself whether or not the findings are supported by evidence or is contrary thereto. 15. Whereas it has all along been the case of the plaintiff that the plot alongwith the house constructed thereon belongs to him, it is the case of the defendant that he has obtained the said plot by way of an oral exchange and that the parties are descendants from a common ancestor. In addition to the aforesaid claim, it has further been contested by Mr. Jha appearing for the defendant while contesting the judgment and order impugned that despite there being absence of evidence supporting the claim, the trial court has committed a serious illegality in venturing into the issue of title and upholding the plaintiff claim thereon and that also without looking into the evidence led by the defendant. According to the learned counsel the issue of title should not have been looked into by the Court. It is thus now to be seen whether the submissions of Mr. Jha holds substance to intervene in the judgment and order under challenge. Insofar as the claim of the defendant regarding the parties coming from a common ancestor, namely, Govind Singh, is concerned even assuming the contentions to be correct, that would not materially affect the issue involved in the case rather would confirm that whereas the defendants admit themselves to be a descendant from the branch of Mahabir Singh, they also do admit that the plaintiff is a descendant from the branch of Bahadur Singh both of whom were sons of Govind Singh. Insofar as the argument of Mr. Insofar as the argument of Mr. Jha that the Court should not have ventured into the issues of title is concerned, I do not find any legal infirmity therein inasmuch as while deciding issues of such nature, the trial Court is not precluded to enter into the issue of title for ancillary purpose and to the limited extent of considering the claim of the plaintiff of being a landlord. In fact while Mr. Jha tried to contest the judgment on this aspect, the very admission of the defendant about the oral exchange of the plot no. 909 in question with plot no. 897 and 901 belonging to the defendant, by itself presupposes the title of the plaintiff over plot no. 909. The defendant having admitted this factum of oral exchange of plot no. 909 which is the suit property and over which the house is situated tried to question the veracity of the khatiyan present at Exhibit-4 and the rent receipts on grounds of forgery but until such time the said documents are held to be a forged document by a Court of competent jurisdiction they would continue to support the claim of the plaintiff. Mr. Jha in fact tried to question the judgment on a typographical error occurring in the judgment where the learned court below even while taking notice of the khatiyan (Ext.4), has omitted to mention the same but the records have been summoned by this Court and it is manifest that Exhibit-4 led by the plaintiff before the trial court is a khatiyan bearing the name of Bahadur Singh, the ancestor of the plaintiff and it is the admission of the defendant that the plaintiff is a descendant from Bahadur Singh. 16. In the aforementioned background no infirmity can be attached to the finding of the trial court upholding the claim of the plaintiff over the plot in question. It is not in contest that these documents upon which the plaintiff relies to set up his claim for title, have never been questioned by the defendant before any Court of competent jurisdiction. In fact except for the claim of oral exchange which the defendant tried to prove through oral evidences, there is nothing to support the said exchange. No documentary evidence was led in support of the said claim. In fact except for the claim of oral exchange which the defendant tried to prove through oral evidences, there is nothing to support the said exchange. No documentary evidence was led in support of the said claim. Once this issue is set at rest, it would have to be seen whether the non framing of issue of bona fide requirement would make any dent in the findings even when an issue of partial eviction has been framed. The answer has to be in the negative for the reason that the issue of bona fide requirement and partial eviction are inter related and it is only where a plaintiff raises his claim for eviction on grounds of bona fide requirement and personal necessity that the trial court is required to consider whether the said claim can be satisfied by a partial eviction. Thus even if no independent issue was framed as regarding bona fide requirement, the foundation of the suit resting on the plea of personal necessity and a finding being recorded on the issue by the Court, a mere non framing of the issues of bona fide requirement would be a mere technicality. 17. Insofar as the locus of the plaintiff to maintain the suit on behalf of his brother is concerned, law is well settled that one of the co-owners/co-sharers can maintain a suit on behalf of the other co-sharers. The judgment of this Court rendered in the case of Bhola Prasad Sah (supra) relying upon the full Bench decision of this Court in 1987 PLJR 978 , sets this issue also at rest. 18. It is now to be seen whether there was any evidence which was led by the defendant and has been ignored by the trial court and which if considered could lead to any other conclusion. The evidence led by the defendant are as follows:– Exhibit-A and A/1 are diary; Exhibit-B to B/2 are electricity bill receipts; Exhibit-C is the signature of the Mukhiya; Exhibit-D to D/5 are chowkidari receipts, Exhibit-E is the electoral list and Exhibit-F is a proceeding under Section 145. 19. In my opinion, in view of the uncontroverted position emanating from the khatiyan i.e. Exhibit-4, the evidence led by the defendant would not make any inroads into the claim set up by the plaintiff. 20. 19. In my opinion, in view of the uncontroverted position emanating from the khatiyan i.e. Exhibit-4, the evidence led by the defendant would not make any inroads into the claim set up by the plaintiff. 20. Whether or not the title shifted to the defendant under an oral exchange which according to the defendant took place in the year 1934 or 1936, is yet to be established in a properly constituted suit. Surprisingly even when Mr. Jha sought to contest the decree on grounds that the Court has ventured into the issue of title, a cursory glance at the judgment manifests that this issue in fact was raised by the defendant himself before the court below requiring payment of an appropriate court fee for such adjudication as is evident from paragraph 29 to 31 of the judgment but the trial court while taking note of the khatiyan (Exhibit-4) and rejecting the objection of the defendant requiring payment of court fee for adjudication of title has held the suit to be in the nature of eviction suit and not a title suit. 21. For the reason aforementioned, I am not persuaded to interfere with the judgment and order impugned in this application and this Civil Revision application is accordingly dismissed but without any order as to costs. 22. Before parting, I would like to put on record that any observations made by the trial court or this Court on the issue of title, would not operate as a bar for the defendant who are petitioners before this Court, if they so choose to take recourse to remedy as may be advised and available to them in law for establishing their title over the plot in question. 23. Let the lower court records in Eviction Suit No. 3 of 2002 be returned to the court concerned in a sealed cover forthwith.