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2018 DIGILAW 1607 (JHR)

Ashwani Kumar Paul @ Goda v. Kamta Prasad

2018-07-24

RAJESH KUMAR

body2018
ORDER : 1. Heard learned counsel for the parties. 2. The appellants are defendants/tenants. 3. The suit has been filed by the plaintiffs/landlords for eviction of defendants on the ground of personal necessity and default in making payment of rent. 4. The case of the plaintiff is that a piece of land has been acquired by one Kewala Devi, W/o Late Ganga Prasad from Raja Kali Prasad by registered sale deed in the year 1958. On the said land, a shop has been constructed. 5. Tenancy has been created in favour of Debu Paul, who started business of utensils in suit premises. The plaintiff used to receive rent and granted rent receipt on behalf of Kewala Devi and subsequently in his own name being the owner of the said premises. On request for enhancement of rent from Debu Paul, Debu Paul has filed a case against Pabitri Devi, Chandrawati Devi (both daughters of Kewala Devi) and Kamta Prasad (Plaintiff) being HRC Case No. 35/1979 in the court of S.D.O. 6. In the court of S.D.O. both the sisters, namely, Pabitri Devi and Chandrawati Devi had given affidavit in favour of plaintiff that rent has rightly been given to him and should be paid to the plaintiff being the landlord and accordingly by order of court, the deposited amount has been released in favour of plaintiff. After death of Debu Paul in the year 1986 his son, namely Ashwani Kumar Paul insisted to issue rent receipt in his favour but had paid rent upto March 1990 to the plaintiff. On his denial to pay rent from April, 1990 onwards, defendants are defaulter in making payment of rent. 7. Defendants have filed counter affidavit that they are doing business in tenant premises and initially rent was Rs. 40 per month which was enhanced to Rs. 70 per month and since October 1980, rent was enhanced to Rs. 100/- per month. 8. Earlier rent was used to be paid to the plaintiff and he used to give rent receipt but it has been asserted that a panchayat was held and on that basis it has been decided that the rent will be paid to the daughters of Kewala Devi, namely, Pabitri Devi and Chandrawati Devi equally. 9. It is the case of the defendant that there was an agreement to sale dated 19.08.1993 between defendant and Chandrawati Devi. 9. It is the case of the defendant that there was an agreement to sale dated 19.08.1993 between defendant and Chandrawati Devi. The said agreement has been extended on 18.04.1994 which has been exhibited as Ext-E and C. 10. The Trial Court has given specific finding that it is an admitted position that relationship of landlord and tenant is existed between the parties and further recorded the finding that there is default in making payment of rent. On the basis of above findings, suit has been decreed and order has been passed against the defendants. 11. Being aggrieved, defendants have preferred an appeal being Civil (Eviction) Appeal No. 67 of 2015. Learned Appellate Court, after considering the entire evidences, confirmed the findings returned by the Trial Court and decree also. 12. Defendants have lost in both the courts and being aggrieved, this second appeal has been filed. 13. The present second appeal has been admitted on 21.03.2018. Following substantial questions of law have been framed, which are quoted herein-below: "(i) Whether the impugned judgment & decree passed by learned court's below stands vitiated taking into account that Judgment in H.R. C. Case No. 35/79 dated 15/12/1979 Ext 2/6 & 2/c became otiose after execution of Agreement to sale dated 19/8/1993 Ext (E) and its extension dated 18/4/1994 Ext (C) @ Rs. 40,000/- as well order passed in T. S. NO. 72/94 which clearly indicated that after 1993 relationship of landlord & tenant came to an end? (ii) Whether the judgment of Trial Court as well Appellate Court stands vitiated due to non consideration of evidentiary value of documentary evidence i.e. Ext. A to A/7; A8 to 8/11; letter dated 27/11/1979 Ext G; Ext K/L/M/N and Ext D which clearly established that landlord tenant relation came to an end even as a rent collector or for personal necessity. (iii) Whether the judgment and decree passed by the Court's below stands vitiated when it failed to take into account the pleading made by the plaintiff to be the real landlord; was not with clean hand, but a fraud was played upon court of law as because FRAUD vitiated the solemn proceedings." 14. (iii) Whether the judgment and decree passed by the Court's below stands vitiated when it failed to take into account the pleading made by the plaintiff to be the real landlord; was not with clean hand, but a fraud was played upon court of law as because FRAUD vitiated the solemn proceedings." 14. Learned senior counsel for the appellant has mainly relied on Ext.E and C and has asserted that since there was an agreement to sale between the defendant and one of the daughter of Kewala Devi namely Chandrawati Devi and as such, status of the defendant has been changed and it is not covered under the definition of tenant and as such entire prosecution is nullity. 15. Learned senior counsel for the appellant further submits that Ext. A to A/7; A8 to A/11; letter dated 27/11/1979 Ext G; Ext K/L/M/N and Ext D which clearly established that since rent was being paid as per panchayat to both the sisters, namely, Chandrawati Devi and Pabitri Devi and as such plaintiff has lost the status of landlord and as such findings has been recorded by the trial court that there is relationship of landlord and tenant is bad in law. 16. Learned senior counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of P. Kanthimathi and Others vs. Mrs. Beatrice Xavier, (2001) 2 PLJR 372 (SC). Para 6 and 7 of judgment are quoted hereunder for better appreciation: 6. Any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitations under the law. Earlier when appellants were inducted into tenancy it only means both agreed that their relations is to be that of a landlord and tenant. Later when landlord decides to sell this property to the tenant and tenant agreed by entering into agreement they by their positive act changed their relationship as purchaser and seller. When seller-landlord accepts sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change then their relationship of landlord tenant ceases. 7. When seller-landlord accepts sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change then their relationship of landlord tenant ceases. 7. This Court in Arjunlal Bhatt Mall Gothani v. Girish Chandra Dutta, (1973) 2 SCC 197 , held as under: "The appellants were tenants in the premises of the respondent-landlord and three suits, including an eviction suit, were pending against them. By an agreement between the appellants and the respondent, the respondent agreed to sell the whole property to the appellants for a certain sum to be paid to him by equal installments. Clause 5 of the agreement provided that in case of default of any installment, the agreement for sale would stand cancelled and if the purchaser failed to pay the defaulted installments within one month's notice the payments made would stand forfeited and purchasers would make over possession of the property to the vendor. xxx xxx "Under Clause (5) of the agreement the question of giving notice arises only if the vendor wanted to forfeit the installments paid by the purchaser. Not even one installment having been paid the question of forfeiture does (sic-not) arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit could not be filed without giving notice under the Transfer of Property Act. We are of opinion that when the agreement, D/-June 7, 1959 was entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked out on the basis of that agreement." This decision clearly spells out that once there is agreement of sale between a land lord and a tenant, the old relationship as such comes to an end. It goes on to record that even after the cancellation of such agreement of sale the status of tenant is not restored as such. In other words, on the date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that of a purchaser and a seller. 17. It goes on to record that even after the cancellation of such agreement of sale the status of tenant is not restored as such. In other words, on the date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that of a purchaser and a seller. 17. On the basis of above argument, it has been prayed that the law point should be decided in favour of appellant and decree should be annulled. 18. Learned counsel for the respondents has referred various judgments i.e. in the case of Damodar Lal vs. Sohan Devi and Others, (2016) AIR SC 262 SC in the case of Anamika Roy vs. Jatindra Chowrasiya and Others, (2013) 6 SCC 270 in the case of State of Andhra Pradesh and Others vs. D. Raghukul Pershad (Dead) by LRs. and Others, (2012) 8 SCC 584 and in the case of Ashok Pada Sen vs. Nabi Rasool and Others, (2014) 2 JCR 565 (Jhr). 19. The above judgments are mainly on the point that if there is concurrent finding of both the courts below, substantial question of law cannot be framed by ignoring the concurrent finding of both the Courts below. 20. Learned counsel for the respondents further relied upon Section 116 of the Evidence Act which is quoted herein-below:- "116 Estoppel of tenant and of licensee of person in possession - No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord or such tenant had, at the beginning of the tenancy, a title to such immovable property and no person, who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given." 21. On the strength of above Section, learned counsel for the respondents has submitted that the defendants are estopped from challenging the status of plaintiffs as landlord and as such the substantial question of law which was framed is not tenable. On the strength of above Section, learned counsel for the respondents has submitted that the defendants are estopped from challenging the status of plaintiffs as landlord and as such the substantial question of law which was framed is not tenable. It has been further submitted that under Section 2(g) of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000, the landlord has been defined as follows: "Landlord" means the owner of the building and includes a person who for the time being is receiving or is entitled to receive the rent of the building, whether on his own account or on behalf of another, or as an agent, trustee, executor, administrator, receiver, guardian or whoever so receives the rent, or entitled to receive the rent, if the building were let to a tenant." 22. In view of the fact that it is admitted position that plaintiff was in the status of landlord as per Section 2(g) of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 and once status has been established, it cannot be changed unilaterally by the tenant and as such the same argument is not sustainable in law. 23. It is clear that if a person, who is authorized to collect rent and is collecting rent is capable to file a suit for eviction on the ground for non-payment of rent. The agreement relied upon by the defendants is between the defendant and one of the daughter of Kewala Devi, namely, Chandrawati Devi and on that basis the relationship between the plaintiffs and defendants cannot be changed. 24. It has been further argued that the said agreement to sale has never been acted upon by the defendant himself as he has taken no steps for executing the sale deed further defendants was never ready to execute the contract and on that point, he cannot take benefit. It is well settled law that no one can take benefit of its own wrong. 25. Defendants even if holder of agreement for sale of the suit premises has not taken any steps and fault lies with the defendants themselves and as such they cannot take benefit of said agreement to sale. 26. It is well settled law that no one can take benefit of its own wrong. 25. Defendants even if holder of agreement for sale of the suit premises has not taken any steps and fault lies with the defendants themselves and as such they cannot take benefit of said agreement to sale. 26. It has been further argued that mere entering into an agreement with one of the sister, while the property in question is in joint possession of both the sisters, namely, Pabitri Devi and Chandrawati Devi and in the absence of partition, the particular portion of the joint property cannot be sold out. She can only enter into agreement for sale of her share as no partition has taken place. 27. It has been submitted by learned senior counsel for the respondents that as the agreement was not enforceable, the defendant has not taken steps for execution of the same and as such defendant cannot take benefit of the said agreement. 28. As per the agreement no time limit has been prescribed and it was left open for the defendant to take action for execution of the sale deed but for reason best known to the defendant, no steps has been taken for execution of the sale deed. 29. From the above argument and factual aspect of the case, it is clear that the relationship of landlord and tenant between the parties is admitted and also there is concurrent finding of both the courts below. There was default in making payment of rent. 30. The only issue raised as a substantial question of law in the present appeal that whether the status of defendants gets changed from the tenant to purchaser on the strength of agreement to sale dated 19.08.1993 i.e. Ext-E and C. 31. From perusal of Ext-E and C, it is admitted position of the defendants himself that the suit premises was originally belongs to Kewala Devi. Kewala Devi has two daughters, namely, Pabitri Devi and Chandrawati Devi. It is the case of the defendants that both are joint owner of the property in question, which has been admitted by defendants themselves. 32. In spite of above admission, agreement has been entered into between the defendants and Chandrawati Devi only. Kewala Devi has two daughters, namely, Pabitri Devi and Chandrawati Devi. It is the case of the defendants that both are joint owner of the property in question, which has been admitted by defendants themselves. 32. In spite of above admission, agreement has been entered into between the defendants and Chandrawati Devi only. If joint property was not divided, making an agreement to sale of undivided portion of the property is not enforceable; rather it gives rise to file a suit for partition for purchased share. Defendants thus entered into an agreement which was not enforceable in law and knowing this defects he has taken no steps whatsoever for execution of the sale deed. On the strength of such agreement to sale, status of defendants will not change from tenant to purchaser of the suit land. 33. Point raised in substantial question No. 2 referring different Exhibits that plaintiff has lost the status of landlord, this Court perused the above exhibits and it appears that these are mere rent receipts, which was paid to the daughters of Kewala Devi unilaterally by the defendant without the consent of the plaintiff. The status of landlord/tenant cannot be changed by the tenant unilaterally by giving rent to somebody else, who may be real owner of the property. It is also relevant to note that the said deposition of rent before the court of S.D.O. has been released in favour of plaintiff and this fact also suggest that the plaintiff has been accepted as landlord and this order has attained finality. 34. In view of the above facts, the points of law framed in present case answered in favour of respondents i.e. plaintiffs. It is hereby held that the appellants remain in the status of tenant especially in view of the fact that being the landlord of the suit property plaintiff was collecting rent. In view of the above discussion, this Court finds no merit in the present case, accordingly the same is hereby dismissed. Appeal dismissed.