Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 1693 (JHR)

Rupa Ghosh v. Satyanarayan Dudhani

2017-09-21

AMITAV K.GUPTA

body2017
JUDGMENT Amitav K. Gupta, J. - This second appeal has arisen out of the judgment and decree dated 27.03.1993 and 14.04.1993 respectively in Title Appeal No.23 of 1986 passed by the learned Vth Addl. District Judge, Dhanbad, whereby the judgment and decree of learned Sub-Judge-I, Dhanbad in Title Suit No.56/1983 has been affirmed. 2. The appellants herein are the legal heirs and the representatives of the original defendant No.l, namely, Rash Bihari Ghosh. The suit was instituted by the plaintiffs (respondents in this appeal) and for sake of convenience they shall be referred as appellants/defendants and respondents/plaintiffs. 3. The plaintiffs had instituted the suit for eviction of original defendant No.l, on the ground of default and had also prayed for payment, of arrears of monthly rent as well as arrears of municipal taxes. They sought a decree of permanent injunction for restraining the respondents from making any construction on the land described in Schedule A of the plaint and for assessment of damages for the wrongful occupation and payment of charges @ Rs. 5/- per day from 01.06.1983 till the date of handing over the vacant possession by the defendants. 4. The original defendant No.l contested the suit and filed the written statement challenging the maintainability of the suit. It was pleaded that there was no relationship of landlord and tenant, therefore, the question of payment of monthly rent did not arise. That the land measuring 25 kathas was settled in favour of the defendants by the Raja of Jharia Estate in the year 1932. The defendants denied that they had agreed to remove the structure and hand over the possession to Late Banrshilal Agarwalla or his legal heirs. It was pleaded that the suit instituted by the father of the plaintiff against the defendants was with respect to another land and the suit property in the present suit belongs to the defendants. That the rent had been paid by the defendants for another premises and he had never agreed to pay a sum of Rs. 105.75 p. comprising the rent and municipal taxes to the plaintiffs. That the unregistered bond was executed under pressure and threat and the defendant is/are not bound by the same. No portion of Schedule A property was sub let to defendant Nos.2 to 4 neither any construction has been made on the said property. 105.75 p. comprising the rent and municipal taxes to the plaintiffs. That the unregistered bond was executed under pressure and threat and the defendant is/are not bound by the same. No portion of Schedule A property was sub let to defendant Nos.2 to 4 neither any construction has been made on the said property. It is alleged that the plaintiffs have got sufficient land/property at Dhanbad and Govindpur as such the plaintiffs do not need or require the premises for their personal use. 5. A written statement was also filed by Co-defendant Jagarnath Lohar admitting the claim of the plaintiffs. It was stated that defendant No.l had assured him that the plaintiff/landlord had authorised him to induct sub-tenant. That defendant No.l had told him that he was paying rent regularly and used to pay the rent to Banarsi Lal Agarwalla, father of the plaintiff. It transpires that the co-defendant did not appear before the court to contest the suit, accordingly the written statement was not considered by the Trial Court. 6. On the basis of the pleadings of the parties; five issues were framed for adjudication. On consideration of the evidence adduced by the parties the trial court recorded the finding that there was relationship of landlord and tenant and the defendants had defaulted in payment of rent including the arrears of rent and municipal taxes and accordingly decreed the suit. 7. Aggrieved by the judgment and decree of the trial court, the defendants preferred Title Appeal before the District Judge which was transferred to the court of 5th Additional District Judge, Dhanbad, who on the basis of the argument advanced by the parties formulated the following points for determination, namely:'' A. Whether there is relationship of landlord and tenant between the parties? B. Whether notice terminating the tenancy is legal and proper and whether the appellants should be asked to pay municipal taxes also?'' 8. The first appellate court on consideration and discussion of the oral and documentary evidence adduced by the parties, affirmed the judgment and decree of the trial court consequently; the defendants/appellants have carried this second appeal to this Court. 9. The first appellate court on consideration and discussion of the oral and documentary evidence adduced by the parties, affirmed the judgment and decree of the trial court consequently; the defendants/appellants have carried this second appeal to this Court. 9. This second appeal was admitted on 30.09.1993 on formulation of the following substantial question of law:- ''Whether in view of the fact that the appellants have claimed title in respect of the suit property, the suit should proceed against the appellants without notice under section 111 of the Transfer of Property Act?''? 10. At the stage of hearing learned Sr. counsel for the appellants has cited the decision of the Supreme Court in the case of Bhagwan Sharma vs. Bani Ghosh, AIR 1993 SC 398 and in the case of Hardeep Kaur vs. Malkiat Kaur (2012) 4 SCC 344 : (2012 AIR SCW 2028) and contended that there is no dispute to the settled proposition of law that formulation of substantial question of law is sine qua non for exercise of jurisdiction under Section 100, C.P.C it is argued that at the time of hearing the High Court can reformulate substantial question of law or fresh question of law in terms of Section 103, C.P.C when the lower appellate court has failed to consider and appreciate the evidence in its correct perspective and findings recorded are perverse and not in consonance with the evidence on record. 11. Learned Sr. counsel has cited the judgment rendered by the Apex Court in the case of Satish Chand Makhan vs. Govardhan Das Byas, AIR 1984 SC 143 and contended that the defendants have categorically pleaded that the suit premises was settled in their favour vide the Hukumnama dated 08.03.1932, i.e., Ext.E, executed by the Raja of Jharia Estate. That Ext.A series are the zamindari rent receipts and Ext. B proves that the defendants/appellants had applied for assessment of rent and the LRDC, Dhanbad had ordered for opening of the zamabandi in the name of the defendants. That it would be evident from Ext.B/1 that the Circle Officer had sent recommendation through the L.R.D.C to the S.D.O, Dhanbad for realisation of the rent from the defendants. B proves that the defendants/appellants had applied for assessment of rent and the LRDC, Dhanbad had ordered for opening of the zamabandi in the name of the defendants. That it would be evident from Ext.B/1 that the Circle Officer had sent recommendation through the L.R.D.C to the S.D.O, Dhanbad for realisation of the rent from the defendants. It is argued that the above documents prove that the defendants were in possession of the suit land as owners and had a better title than the plaintiffs, therefore, the notice was required to be sent under section 111 of Transfer of Property Act and the notice under section 106 of the Transfer of Property Act is not a valid notice. 12. It is strenuously argued that in the previous suit for eviction the plaintiffs had claimed arrears of rent from 12.09.1952 to 31.10.1957, meaning thereby that the tenancy was not in accordance to English Calender month father commenced from 12th of every '' month and was supposed to expire on the 11th of the subsequent month, therefore, the notice under Section 106 of the Transfer of Propety Act is not in accordance with law because it terminated the tenancy on 31.05.1983 which would be evident from Ext.l, whereas the tenancy could be terminated only on 11th of the subsequent month. Learned Sr. counsel has placed reliance on the judgment of the Hon''ble High Court of Calcutta, in the case of Mozam Shaikj vs. Annada Prasad Bhadra and Anr., AIR 1942 Cal 341 and has also cited the decision in the case of Haridas Tapadar vs. Sailendra Chandra De, AIR 1953 Assam 202 and canvassed that in the aforesaid cases it has been held that when there was no valid notice for terminating the tenancy the suit for ejectment was not maintainable. 13. Learned Sr. Counsel has canvassed that the first appellate court has committed a manifest error in recording the finding of relationship of landlord and tenant between the respondents/plaintiffs and the appellants/defendants on the basis of the findings recorded in Title (Eviction) Suit No.28/1987. It has been argued that the suit property involved in the present suit was not the subject-matter of the earlier Title (Eviction) Suit No.28/1957. It has been argued that the suit property involved in the present suit was not the subject-matter of the earlier Title (Eviction) Suit No.28/1957. That in the earlier Title (Eviction) Suit the suit property involved measured 15 kathas whereas in the present suit the defendants have specifically pleaded that they are the owner of 25 kathas of land which has been settled in their favour by the Hukumnama dated 08.01.1932, i.e., Ext.E. It is contended that the lower appellate court as well as the trial court have not considered Ext.A series which are the zamindari receipts. It is submitted that Ext.B establishes that the defendants/appellants had filed an application for assessment of rent and as per Ext.B/1 the Circle Officer had recommended through L.R.D.C, Dhanbad for realisation of the rent from the defendants. It is argued that the aforesaid document proves that the defendants were the owner of the said property and the court below has not considered and appreciated the material evidence in its correct perspective and such perversity in finding gives rise to a substantial question of law. Learned counsel has also placed reliance on the decision rendered in the case of Satish Chkand Makhan vs. Govardhan Das Byas, AIR 1984 SC 143 . 14. Before adverting to the sustainability of the argument advanced by the learned Sr. counsel it will be necessasry to state that Order 1, Rule 7 of Code of Civil Procedure (for short '' CPC- ) prescribes that the plaintiffs are required to give the details and the facts which constitute the cause of action. As would be evident the plaintiffs have taken the plea that they are the owner of the suit property and in the earlier title suit the defendants had entered into a compromise and a registered bond was also executed by the defendants in terms of the compromise between the defendants/appellants and the plaintiffs/respondents. The plaintiffs have given the details of the suit property. The defendants in the written statement had taken the plea that they are the owner of the suit property and tried to set up their own title and have given evasive reply with respect to the earlier eviction suit instituted by the plaintiffs-predecessors against the defendants-predecessors. Order 7, Rule 8, C.P.C permits the defendants to take different grounds of defence. The defendants in the written statement had taken the plea that they are the owner of the suit property and tried to set up their own title and have given evasive reply with respect to the earlier eviction suit instituted by the plaintiffs-predecessors against the defendants-predecessors. Order 7, Rule 8, C.P.C permits the defendants to take different grounds of defence. However, the said ground should not be inconsistent to each other and under Order 6, Rule 16 the court is empowered to strike out any pleading which may tend to prejudice, embarrass or delay the fair trial of the suit. The object and purpose of pleading is to ensure a fair trial meaning thereby that the party who adopts inconsistent pleas based on contradictory facts then he cannot blow hot and cold at the same time by taking inconsistent pleas which are frivolous and vexatious as this would lead to embarrassment in fair trial of a suit. 15. It is evidenced that the defendants have denied the relationship of landlord and tenant and at the same time, they have taken the plea that termination of tenancy was not in accordance to law. The defendants have also taken the plea that the present suit property was not the subject matter in the earlier Title (Eviction) Suit filed by the plaintiffs/respondents. 16. At this juncture it is necessary to take notice that both the courts below have noticed that though the appellants/defendants have pleaded that the suit property involved in the present suit was not the subject-matter of the earlier suit but the defendants have not produced any document to establish the fact that the suit property involved in the present eviction suit was not the subject-matter of the earlier eviction suit. In fact they have made evasive reply. 17. The first appellate court has examined the claim of the defendants/appellants that the land was settled in his/their favour by the Hukumnama. It has analysed and discussed the documentary and oral evidence adduced by the parties and has rightly observed that if, in a suit for eviction, the title is disputed the court can look into the question of title incidentally when the suit for eviction is disputed and title is challenged by the defendants. It has analysed and discussed the documentary and oral evidence adduced by the parties and has rightly observed that if, in a suit for eviction, the title is disputed the court can look into the question of title incidentally when the suit for eviction is disputed and title is challenged by the defendants. Both the courts below have meticulously examined and discussed the documentary and oral evidence of the parties and recorded the finding that the suit property involved in the present suit measuring 15 kathas situated in Dhanbad Purana Bazar in Dari Mohalla within Mouza Dhanbad, PS. and District-Dhanbad is one and the same which was subject-matter in the earlier Title (Eviction) Suit. The court below has discussed Exts.11,12 and 12/a, i.e., the order-sheets, the report and sketch of the suit: land prepared by the pleader commissioner appointed by the court. The court below has discussed Ext.5, i.e., the written statement of Rash Bihari Basu, the original defendant, i.e., predecessor-in-interest of the appellants/defendants who has not denied the relationship of landlord and tenant between the predecessor-in-interest of the plaintiffs/respondents and predecessor-in-interest of the appellants/defendants. In the earlier suit a compromise took place and a compromise decree was drawn and prepared in terms of Exts.15 and 15/a. It is evident from Ext.20 that the plaintiffs had put the decree into execution whereafter the original defendant, i.e., Rash Bihari Basu had executed a registered bond as per Ext.7. The courts below have meticulously examined the Hukumnama, i.e., Ext.E and discussed Ext.21/a which is the certified copy of deed register wherein one Sachin Mohan Ghosh was shown as receiver of Jharia Raj Estate. On the basis of the documentary evidence lower appellate court has noticed the fact that Jharia Raj Estate was under the receivership from 15.02.1932 and Hukumnama, Ext.E was executed on 08.03.1932. In fact the Hukumnama was executed during the period when Jharia Raj Estate was under the receivership, hence, the settlement of the said land in favour of the defendants/appellants by the Raja of Jharia Raj Estate during the period of receivership was rightly disbelieved. 18. It is settled proposition of law that in exercise of power under section 100, CPC the High Court has very limited power to interfere with the finding of fact recorded by the first appellate court which is the final court of fact unless the finding suffers from perversity and is capricious. 18. It is settled proposition of law that in exercise of power under section 100, CPC the High Court has very limited power to interfere with the finding of fact recorded by the first appellate court which is the final court of fact unless the finding suffers from perversity and is capricious. In exercise of power under section 100, CPC the court cannot re-appreciate the evidence. It has been observed in the case of Pakeerappa Rai vs. Seethamma Hengsu and Ors., (2001) 9 SCC 521 that the High Court in exercise of power under section 100, CPC cannot interfere even with the erroneous finding of fact, however, gross the error seems to be. 19. It is evidenced that the first appellate court has recorded concurrent finding on meticulous examination and threadbare discussion of the fact that the plaintiffs were the landlord and owner of the suit property and the defendants were the tenant. There is concurrent finding that the appellants/defendants had defaulted in payment of the rent. It is settled that in exercise of jurisdiction under section 100, CPC concurrent finding of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In this connection the defendants/appellants have not been able to bring any material on record to establish that the findings of the first appellate court is capricious, arbitrary and perverse and not in consonance with the evidence on record hence, the argument advanced by the learned counsel is palpably fallacious and misplaced and is not tenable in law or on facts. 20. In context to the substantial question of law '' Whether in view of the fact that the appellants have claimed title in respect of the suit property, the suit should proceed against the appellants without notice under section 111 of the Transfer of Property Act.?'' ? it is pertinent to refer to the observations of the Supreme Court in the case of Chunilal vs. Mehta and Sons Ltd. vs. Century Spinning and Manufacturing Co. it is pertinent to refer to the observations of the Supreme Court in the case of Chunilal vs. Mehta and Sons Ltd. vs. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314 in paragraphs 5 and 6, the extract of which is re-produced hereinbelow:- ''5.......................What was, however, said was that when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.'' 6....................The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether if directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.'' 21. In catena of decisions it has been held by the Apex Court that when the question of law is crystalised and well settled then there is mere question of applying those principles then the question would not be a substantial question of law. In the case of Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 : ( AIR 2001 SC 965 ) in para 14 it has been observed as follows:- ''14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. In the case of Santosh Hazari vs. Purushottam Tiwari (2001) 3 SCC 179 : ( AIR 2001 SC 965 ) in para 14 it has been observed as follows:- ''14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be '' substantial'' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned..................'' 22. Applying the settled law to the facts of the present case makes it abundantly clear that the substantial question of law as formulated is no more res Integra. The issue regarding notice under section 111 of Transfer of Property Act has been put to a quietus by the Supreme Court in the judgment rendered in the case of V. Dhanapal Chettiar vs. Yesodai Ammal (1979) 4 SCC 214 : ( AIR 1979 SC 1745 ) wherein it has been held that '' when the relationship of landlord and tenant is established then the question of service of notice under section 111 of the Transfer of Property Act, 1882 looses its force.'' ? While taking note of cleavage of opinion in various cases rendered by the Supreme Court in larger Bench has discussed and expounded the law vide its observation in paras 16 and 18 as follows:- ''16.......................Even if the lease is determined by a forfeiture under the Transfer of Property Act the tenant continued to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise. In many State-statutes different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also. That being so the dictum of this Court in Raj Brij case comes into play and one has to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. The theory of double protection or additional protection, it seems to us has been stretched too far and without a proper and due consideration of all its ramification.'' 18.................But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continued to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with section 106 of the Transfer of Property Act.'' It is established principle that the substantial question of law is to be determined on the basis of foundation of pleadings which the defendants have failed to do so. The defendants have stated that the commencement of period of tenancy has not been established and at the same time they have taken the plea that termination of tenancy has been made without service of valid notice. In other words they have made contradictory and self-destructive statement. 23. Be that as it may the law on the question of notice under section 111 of Transfer of Property Act has been well settled by the aforesaid judgment in the case of V. Dhanapal Chettia (supra) that when the relationship of landlord and tenant is determined the question of service of notice under section 111 of the Transfer of Property Act is not required as the eviction of a tenant is governed under the provision of Rent Control Act and such notice is a superfluous. 24. 24. In the backdrop of the discussions made in the foregoing paragraphs and the evidence available on record, in the considered opinion of this Court, there is no substantial question of law involved in the present appeal. 25. In the result the appeal stands dismissed. 26. Office shall transmit the records to the court below. 27. F21619Appeal dismissed..