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2019 DIGILAW 1827 (JHR)

Ranjit Singh Matharu v. Anna Purty

2019-11-06

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT : 1. Heard Mr. Rajeeva Sharma, learned Senior counsel appearing for the appellants and Mr. Vibhor Mayank, learned counsel appearing for the respondents. 2. The appellant has filed this Second Appeal against the judgment and decree dated 13.01.2003 (decree signed on 31.01.2003) passed by 3rd Additional District Judge at Jamshedpur in Eviction Appeal No. 32 of 1990, whereby, the judgment and decree dated 08.08.1990 (decree signed on 24.08.1990) passed by Munsif at Jamshedpur in Eviction Suit No. 93 of 1986 has been confirmed by the appellate court. 3. The appellant/plaintiff instituted Eviction Suit No. 93 of 1986 with the pleading that the house premises standing on plot No. 833 (New) corresponding to R.S. Plot No. 272, Mouja Kalimati previously belonged to Sardar Narayan Singh who took settlement of the land from the ex-proprietor of Dhalbhum Estate in or about the year 1939 and constructed houses thereon. Sardar Narayan Singh died leaving behind his widow Ratan Kaur who inherited the said property. Ratan Kaur inducted the defendant as monthly tenant with respect of one room on a monthly rent of Rs.25/-payable according to English Calendar month. Ratan Kaur by means of registered deed of sale dated 16.07.1984 sold the house including the suit premises and since the appellant/plaintiff became the owner of the suit house property, the respondent/defendant was accordingly informed by the plaintiff regarding transfer by Ratan Kaur and requested to pay rent to the plaintiff. The appellant/plaintiff having purchased the property from its previous owner by the sale deed has acquired perfect title and interest thereof and as such in the event if the relationship of landlord and tenant between the appellant/plaintiff and the respondent/defendant is not established in that case the plaintiff shall be entitled to a decree for recovery of possession on the basis of her title over the suit property. In spite of repeated demands, the defendant has not paid rent. The defendant since 16.07.1984 not having paid or validly remitted rent for more than two months and made himself a defaulter and is liable to be evicted from the suit premises. The cause of action arose on and from November 1984. 4. The suit was contested by the defendants and on appearance they had filed written statement. The defendants made out case in the court below that the suit is not maintainable and the appellant/plaintiff has no locusstandi. The cause of action arose on and from November 1984. 4. The suit was contested by the defendants and on appearance they had filed written statement. The defendants made out case in the court below that the suit is not maintainable and the appellant/plaintiff has no locusstandi. The suit is barred under the principle of limitation, estoppel, waiver and acquiescence. The suit it also bad for mis-joinder and non-joinder of the parties. Sardar Narayan Singh never took settlement of the land from its proprietor. The land in question is recorded in the name of Bihar Sarkar with Balat Dakhal of Narayan Singh, son of Janam Singh, who never remained or constructed any house over the said plot at any time. The defendant, being an aboriginal Adivasi of the locality himself acquired the portion of plot no. 833 and plot no. 834 and constructed his khapraposh house in or about 8 decimals in the year 1955 and living therein with his family. None was objected to the defendant at the time of taking his possession. The plaintiff's husband took attempt for taking possession in 1985 on false plea. A proceeding under Section 145 Cr.P.C. against the plaintiff has been drawn which stands pending in the Revision. The defendant never seen Narayan Singh. Ratan Kaur never inducted the defendant on monthly rent. There is no relationship of landlord and tenant between Ratan Kaur and defendant. Ratan Kaur has no valid right, title and interest as such she can not transfer the valid right, title and interest to the plaintiff. Bihar Sarkar is only competent to do so and the Government initiated the proceeding under Bihar Land Encroachment Act which was dropped and the Circle Office passed an order for settlement of the same in favour of the respondent/defendant. The plaintiff or Ratan Kaur never informed the defendant about transfer. The so-called sale deed as claimed to have obtained by the plaintiff is also a fraud as no such deed was executed or registered in Sub-Registry Office at Jamshedpur on 16.07.1984. The respondent/defendant was not a tenant of the plaintiff or Ratan Kaur. In order to avoid the burden of proving the title, the plaintiff has brought false suit under the Bihar Building (Lease, Rent & Eviction) Control Act. 5. On the above pleadings of the appellant/plaintiff and respondent/ defendant, the trial court proceeded to decide the suit and framed issues. The respondent/defendant was not a tenant of the plaintiff or Ratan Kaur. In order to avoid the burden of proving the title, the plaintiff has brought false suit under the Bihar Building (Lease, Rent & Eviction) Control Act. 5. On the above pleadings of the appellant/plaintiff and respondent/ defendant, the trial court proceeded to decide the suit and framed issues. While deciding issue no. 4 with regard to right to execute of the deed by Ratan Kaur, the trial court considered evidences of P.W.5 and other P.Ws. It transpires that P.W.1, P.W.2 and P.W.4 are formal witnesses. Ext.-A is the notice to the respondent/defendant in BPLE Case No. 39 of 1986-87 regarding portion of khata No. 372, plot nos. 833 and 834 and Ext.-B is the order sheet in the said BPLE Case No. 39 of 1986-87, in which, the Circle Officer had ordered to settle this land in the name of the respondent/defendant. Considering the exhibits and the evidences of P.Ws. and D.Ws. as well, the trial court came to the finding that the suit is not maintainable and the plaintiff is not entitled for any relief, as claimed. Aggrieved with this judgment, the appellant/plaintiff filed Eviction Appeal No. 32 of 1990, which was dismissed by 3rd Additional District Judge, Jamshedpur vide judgment dated 13.01.2003, by which, the judgment passed in Eviction Suit No. 93 of 1986 by the Munsif, Jamshedpur dated 08.08.1990 was confirmed. Aggrieved with this judgment, the appellant has filed this Second Appeal before this Court. 6. Mr. Rajeeva Sharma, learned Senior counsel appearing for the appellant submits that during the pendency of the appeal before the appellate court, a petition for amendment of the plaint was filed, which was allowed and ad valorem court fee was also paid and in spite of that, the appellate court has not decided the appeal in terms of the amended plaint at the appellate stage. He further submits that when advalorem-court fee was paid by the appellant before the court below, the suit was required to be decided in terms of the amended plaint. He also submits that this is the substantial question of law for admission of this Second Appeal. 7. Having heard learned counsel for the parties, this Court finds that the appellant/plaintiff has examined 5 witnesses. So far as P.Ws. 1, 2 and 4 are concerned, they are formal witnesses. He also submits that this is the substantial question of law for admission of this Second Appeal. 7. Having heard learned counsel for the parties, this Court finds that the appellant/plaintiff has examined 5 witnesses. So far as P.Ws. 1, 2 and 4 are concerned, they are formal witnesses. The defendant has examined 3 witnesses as D.Ws. This Court further finds that the appellant/plaintiff had not been examined, but her husband (P.W.5) had been examined on behalf of the plaintiff. P.W.5 has not stated that his wife paid consideration amount either to Ratan Kaur, wife of Narayan Singh or to himself. No other witness either of sale deed or power of attorney was examined. P.W.5 has admitted that the sale deed was executed at Calcutta. The appellant/plaintiff has failed to examine Ratan Kaur and even produce her in the court below. The amount of cost for producing Ratan Kaur in the court below was deposited by the respondent/defendant. No any document filed in respect of the fact that Ratan Kaur was landlord and the defendant was her tenant and after the transfer by the sale deed (Ext.-2), the plaintiff is the landlord and the defendant is the tenant. The question of title of landlord cannot be decided finally in eviction proceedings. Reference in this regard may be made to the case of Keshar Bai v. Chhunulal, reported in (2014) 11 SCC 438 . Paragraph 15 of the said judgment is quoted herein below: “15. The High Court has expressed that the respondent was justified in asking the appellant to produce the documents. Implicit in this observation is High Court's view that the respondent could have in an eviction suit got the title of the appellant finally adjudicated upon. There is a fallacy in this reasoning. In eviction proceedings, the question of title to the properties in question may be incidentally gone into, but cannot be decided finally.” 8. The appellate court has also considered Order VII Rule 7 of C.P.C. and came to the finding that no relief has been prayed for declaration of title and recovery of possession by the appellant/plaintiff and in view of Order VII Rule 7 of C.P.C., the same cannot be granted in the suit. However, the appellate court has given liberty to the appellant/plaintiff for filing suit for declaration of the title and for recovery of possession of the premises against the respondent/defendant. However, the appellate court has given liberty to the appellant/plaintiff for filing suit for declaration of the title and for recovery of possession of the premises against the respondent/defendant. Thus, this Court finds that there is no substantial question of law involved in this Second Appeal and both the courts below have come to a concurrent finding after discussing the exhibits as well as the evidence of witnesses minutely and on threadbare basis. Accordingly, this Second Appeal stands dismissed.