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2019 DIGILAW 490 (JHR)

Sita Debi Khirwal v. Mandanlal Agarwal

2019-02-18

S.N.PATHAK

body2019
JUDGMENT : 1. Heard the parties. 2. This appeal has been preferred against the judgment dated 29.06.2015 and decree dated 06.07.2015, passed by learned District Judge-I, West Singhbhum at Chaibasa in Civil Appeal No. 4 of 2009, whereby the learned District Judge has allowed the appeal preferred by the plaintiffs/appellant/ respondents and set aside the judgment dated 28.05.2009 and decree dated 08.06.2009, passed in Eviction Suit No. 14 of 2005, passed by learned Munsif, West Singhbhum at Chaibasa. 3. The case of the plaintiffs/appellants before the Court below was that late Shaligram Khirwal, who was the husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 5, was the owner of the suit premises situated under Khata No. 5, Plot No. 541, P.O. Barajamada, district West Singhbhum. Defendant No. 1/ Respondent No. 1, Madan Lal Agarwal was the tenant of the said suit premises and was paying monthly rent @ Rs.80/- per month. It is the specific case of the plaintiffs that the Madan Lal Agarwal was a habitual defaulter and did not pay the rent to Shaligram Khirwal from the month of July, 2000 to October, 2000 and further, he had sub-let the suit property to one Chaitan Agarwal, defendant No. 2/ respondent No. 2 and shifted to Chaibasa. It is the further case of the appellants that Shaligram Khirwal was in personal need of the said suit property for establishing the business of his son Kishan Kumar Khirwal and therefore, he had instituted the K.T.S. No. 32 of 2000 before the learned Deputy Commissioner for eviction of tenant from the suit premises as well as for payment of arrears of rent and the said case was transferred to A.D.C. However, during the pendency of the suit, Shaligram Khirwal came to know that Hon’ble High Court of Patna, Ranchi Bench has held that suit under BBRC Act is not maintainable before authority under Wilkinson’s Rule and therefore, he filed a petition to return the plaint for filing the same before the appropriate forum, which was allowed. In the meantime, on 19.06.2005, Shaligram Khirwal died and the present plaintiffs/ appellants being the legal heirs and successors of late Shaligram Khirwal, inherited the suit property and have instituted a fresh suit. In the meantime, on 19.06.2005, Shaligram Khirwal died and the present plaintiffs/ appellants being the legal heirs and successors of late Shaligram Khirwal, inherited the suit property and have instituted a fresh suit. The further case of the plaintiffs/ appellants is that the Madanlal Agarwal, Respondent No. 1, had not paid rent from July, 2000 upto filing of the suit and therefore, he became defaulter. Further, the said Madanlal Agarwal had sub-let the suit property to one Chaitan Agarwal, Respondent No. 2, without taking consent or without any knowledge to the plaintiffs. It is the specific case of the plaintiffs that the Madanlal Agarwal was inducted in the suit premises with an expressed condition that the same shall be used by him for residential purposes but inspite of the said terms, he along with his family member shifted to Chaibasa and sub-let the suit property to Chaitan Agarwal, respondent No. 2, thereby had violated the terms of tenancy. 4. On the other hand, upon notice defendant No. 1/ respondent No. 1 appeared before the Trial Court and contested the case on the ground that the suit was not maintainable on the ground of no cause of action had ever arisen to the plaintiffs and as such, the suit is barred by principle of estoppel, acquiescence and waiver. Further ground of contest was that the tenancy commenced from April, 1975 and late Shaligram Agarwal, being the landlord of the suit property, was realizing rent @ Rs.80/- per month from 1.4.1975 to 30.4.1976 and also for the period from 1.5.1976 to 30.11.1976 and thereafter, he informed the defendant No. 1 to pay monthly rent to Shyamal Kumar Khirwal, as he became landlord of the suit property, in view of an internal settlement between Shaligram Khirwal and Shyamal Kumar Khirwal and thereafter, Shyamal Kumar Khirwal used to issue rent receipt against the rent paid. It is the further case of the defendant that since the said Shyamal Kumar Khirwal was acted as a landlord in his individual capacity, so after the death of Shaligram Khirwal, his purported successors have no legal right to demand any rent from the defendant and further, Shyamal Kumar Khirwal never informed the defendant that there was any re-arrangement between him and late Shaligram Khirwal. It had further been informed that he used to pay the rent in lumpsum and in interval of several months and the same was a long standing practice between the parties. It was further pleaded that defendant No. 2/ respondent No. 2, Chaitan Agarwal is not a sub-lessee of the defendant. Rather, he was an employee of the defendant No. 1 and looking after the business of defendant No. 1. 5. The parties appeared before the Trial Court and were heard. On the basis of the pleadings of the parties, the learned Trial Court had framed the following issues:- (I) Is the suit maintainable in its present form and for the reliefs claimed? (II) Have the plaints got any cause of action or right to sue the defendants? (III) Is the suit bad for non-joinder of necessary party? (IV) Is there a relationship of landlord and tenant between the plaintiff and defendant No. 1? (V) Has the defendant No. 1 sublet the suit premises to defendant No. 2? (VI) Is the defendant No. 1 has not paid monthly rent since the month of July, 2000? (VII) Is the defendant became defaulter in payment of rent? (VIII) Is the suit property required by the plaintiffs for their personal and bonafide need? (IX) Are the defendants liable to be evicted from the suit property? (X) Can the need of plaintiffs be fulfilled by the partial eviction of the defendants? (XI) Has the suit been properly valued? (XII) Are the plaintiffs entitled to get the relief claimed or any other relief, if yes, then its effect? 6. To support their claims, the parties have adduced evidences both oral and documentary. 7. The learned Trial Court while deciding the issue No. (iv) came to a finding that under Section-116 of the Indian Evidence Act, a tenant cannot challenge the title of landlord during continuation of tenancy. The own admission of defendant clearly established that defendant was inducted as a tenant by the father of the plaintiff and in such situation, the doctrine of tenant estoppel come in to play and defendant Madanlal Agarwal is estopped from questioning the title of Shaligram Khirwal. The own admission of defendant clearly established that defendant was inducted as a tenant by the father of the plaintiff and in such situation, the doctrine of tenant estoppel come in to play and defendant Madanlal Agarwal is estopped from questioning the title of Shaligram Khirwal. Upon perusal of the evidences brought on record, the learned Trial Court had held that the relationship of landlord and tenant exist between the plaintiffs and the defendant No. 1 for the purpose of Section 11(i)(c) as well as other provisions of Section-11 of the BBRC Act. Further, while deciding issue No. (vi), the learned Trial Court held that the defendant No. 1 has failed to discharge his onus that he has paid rent from the month of July, 2000 onwards, therefore, he has become a defaulter within the meaning of BBRC Act and on this ground, he is liable to evict the suit property. Issue No. (v) relates to the question as to whether the defendant No. 1 has sub-let the suit property to defendant No. 2 ? After discussing the said issue in details, the learned Trial Court has held that from the oral testimony of defendant No. 1 it is apparent that Chaitan Prakash Agarwal is not paid salary for the work done regarding looking after the business of defendant No. 1, inasmuch as, Chaitan Agarwal himself had admitted that no salary is paid to him for looking after the business of defendant No. 1. Thus, on the basis of detailed discussion made by the learned Trial Court on this issue, it came to a finding that defendant No. 1, Madanlal Agarwal had sub-let the suit property to defendant No. 2, Chaitan Prakash Agarwal, without getting consent from the landlord and as such, he is liable to evict the suit property. Issue Nos. (i) relates to maintainability of the suit, which had been answered by the learned Trial Court in affirmative, holding therein that since the relationship of landlord and tenant exist between the plaintiff and the defendant and since the defendant had defaulted in payment of rent thereby committing breach of tenancy, the suit is maintainable in its present form and for the reliefs claimed. 8. 8. The learned Trial Court, after discussing all the issues in details, vide its judgment dated 28.05.2009, decreed the suit on contest with cost against the defendant No. 1 and under Order 8 Rule 10 of the C.P.C. against the defendant No. 2. Defendants were directed to handover the vacant possession of the suit premises to the plaintiffs within a period of two months from the date of order passed by the learned Trial Court. The defendant No. 1 was further directed to pay the arrears of rent to the plaintiffs within two months from the date of the order passed by the learned Trial Court, failing which the plaintiffs may get vacant possession of the suit property as well as arrears of rent through the process of Court. 9. Being aggrieved by the order passed by the learned Trial Court, defendants preferred Civil Appeal No. 4 of 2009 before the District Judge-I, West Singhbhum at Chaibasa. The Appellate Court after hearing the parties, vide its judgment dated 29.06.2015, quashed and set aside the order passed by learned Trial Court. In para-11 of its judgment, the lower Appellate Court has held that since the lease of the scheduled premises stands in the name of Shyamal Kumar Khirwal and the father/ husband of the plaintiffs is not the lease holder and therefore, there is no relationship of landlord and tenant between the parties. The learned lower Appellate Court concluded that the appellants are not the landlord within the meaning of Section 2(f) of Bihar Building (Lease, Rent and Eviction) Control Act by relying upon the observations made in the judgment of Hon’ble Supreme Court in case of M.M. Quasim Vs. Manohar Lal Sharma, reported in AIR 1981 SC 1113 and the judgment passed in case of Ram Avatar Singh Vs. Santosh Kumar Gupta, reported in 2014 (4) JBCJ 3 (HC). 10. Being aggrieved and dissatisfied with the judgment dated 29.06.2015 and decree dated 06.07.2015, passed by learned District Judge-I, West Singhbhum at Chaibasa in Civil Appeal No. 4 of 2009, whereby the learned District Judge has allowed the appeal preferred by the plaintiffs/appellant/ respondents and set aside the judgment dated 28.05.2009 and decree dated 08.06.2009, passed in Eviction Suit No. 14 of 2005, passed by learned Munsif, West Singhbhum at Chaibasa, the present appellants have preferred the instant Second Appeal. 11. 11. On being satisfied with the substantial questions of law formulated by the appellants, the present second appeal was admitted for hearing on the following substantial questions of law:- (I) Whether the learned Lower Appellate Court has committed manifest error in law by entering into the question of title in eviction suit ignoring the admission made by the defendant, Sri Madanlal Agarwal in his written statement and defence witnesses regarding factum of tenancy? (II) Whether the learned Lower Appellate Court failed to appreciate that once the defendants had admitted in their written statement vide para no. 4 that they were inducted as monthly tenant by the father of the plaintiffs, they are precluded from raising the dispute of the title with their landlord? (III) Whether the learned Lower Appellate Court has committed illegality in holding that the plaintiffs cannot be said to be landlord in terms of Section-2F of Jharkhand Building (Lease, Rent and Eviction) Control Act? 12. Mr. Indrajit Sinha assisted by Mr. Bibhash Sinha, learned counsel appearing for the appellants argues that it is the admitted case of the respondents/ defendants that he was inducted as a tenant by the father/ husband of the plaintiffs in April, 1975 and in view of the aforesaid pleading considering the scope of Section 58 of the Evidence Act, the tenancy is admitted and stands proved. Learned counsel further argues that by admission in the pleading as well as in the evidence i.e. D.W. 4 and D.W. 3, there is a clear-cut relationship of landlord and tenant between the parties. The defendant himself has exhibited Ext. 1 and 1/1 i.e. the rent receipts issued by the father of the plaintiffs showing payment of rent upto 30.06.2000. There is also clear-cut finding of the learned Trial Court that the defendant is defaulter. This finding is based on the admission of D.W. 4 and D.W. 3 i.e. defendant and his son. They have said that they have not paid rent since August, 2002. Learned counsel also argues that the defendant had created sub-tenancy with defendant No. 2 on account of admission by D.W. 3, son of the defendant. It has also been argued that the scope of partial eviction was also considered and in view of statement of D.W. 4, defendant himself stated that partial eviction will not suffice the purpose of either parties. It has also been argued that the scope of partial eviction was also considered and in view of statement of D.W. 4, defendant himself stated that partial eviction will not suffice the purpose of either parties. Learned counsel emphatically argued that the learned lower Appellate Court had grossly misconstrued the definition of “Landlord” as given under Section 2(f) of the Jharkhand Building (Lease, Rent and Eviction) Control Act and has erred in giving finding that since the lease of the property does not stand in the name of the father/ husband of the plaintiffs, therefore, he is not the owner and thus, is not the landlord under the provisions of Bihar Building (Lease, Rent & Eviction) Control Act. Further, on two occasions the defendants have approached this Hon’ble Court raising issue of title of the father/ husband of the plaintiffs in W.P.(C). Nos. 2981 of 2008 and 397 of 2011 and on both occasions, the writ petitions of the defendant was dismissed and the Hon’ble Court has clearly said that the title of appellants/ plaintiffs is not an issue in the suit for eviction and the suit of eviction is required to be decided on the basis of landlord and tenant relationship. The Hon’ble Court has also observed that the defendant is trying to convert the eviction suit into title suit and the same is a delaying tactics. 13. To buttress his arguments, learned counsel places heavy reliance on the following judgments:- (I) Vashu Deo Vs. Balkishan [ (2002) 2 SCC 50 ] (II) Ambika Savaria & ors. Vs. Sanjay Sharma & Ors. [ (2016) 15 SCC 185 ]. (III) Hope Plantations Ltd. Vs. Taluk Land Board, Peermade & Anr. [ (1999) 5 SCC 590 ]. 14. Mr. Rahul Gupta assisted by Mr. Akash Bhushan, learned counsel appearing for the respondents/ defendants submits that there is no illegality in the order of the 1st Appellate Court and the case has rightly been decided. Mr. Gupta places reliance on the findings of the Appellate Court regarding Section 2(f) of Jharkhand Building (Lease, Rent and Eviction) Control Act and submits that in view of the fact, it cannot be said that there was any relationship of landlord and tenant between the parties and as such, the 1st Appellate Court has rightly reversed the order of the Trial Court. From perusal of the records and the findings derived by the Trial Court, it appears that Ext. B & C proves that Shaligram Khirwal inducted Madan Lal Agarwal as tenant in the tenanted premises with a stipulation to pay rent to him. Ext. C proves that for the first time rent was paid to him. Ext. 1 and 1/1 proves that last time rent was paid to Shaligram Kumar Khirwal in the year 2000. Further, once the defendant has admitted himself to be a tenant of Shaligram Khirwal and even paid rent till 2000, contrary to his pleadings and his evidence that after the year 1978, Shyamal Kumar Khirwal became the landlord, thereby the defendant, Madan Lal Agrawal had submitted himself to be a tenant of Shaligram Khirwal. Thus, the Trial Court rightly came to a finding that there is a relationship of landlord and tenant between Shaligram Khirwal and Madan Lal Khirwal with regard to tenanted premises. It is settled principles of law and Section 116 of the Indian Evidence Act mandates that a tenant cannot challenge the title of landlord during continuance of tenancy. 15. For better appreciation, it would be desirable to quote Section 2(f) of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000:- “2(f). ‘Landlord’ includes the 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 on account or on behalf of for the benefit to himself and others or as an agent, trustee, executor, administrator, receiver, guardian or who would so receive the rent, to be entitled to receive the rent, if the building were let to a tenant.” 16. Issue No. (iv) framed by the learned Trial Court regarding landlord and tenant relationship which has been discussed in para-10 of the Trial Court’s judgment, which clearly speaks that there is admission of tenant in the written statement. It is held that there is landlord and tenant relationship. The Trial Court has also referred evidence of DW-4, wherein the defendant himself exhibited rent receipts Ext. 1 and 1/1 which are rent receipts dated 07.10.1998 and 25.06.2000 by father of the plaintiff in favour of the Madan Lal Agarwal. While discussing Issue No. (vii), it has been held that the defendant is a defaulter. The Trial Court has also referred evidence of DW-4, wherein the defendant himself exhibited rent receipts Ext. 1 and 1/1 which are rent receipts dated 07.10.1998 and 25.06.2000 by father of the plaintiff in favour of the Madan Lal Agarwal. While discussing Issue No. (vii), it has been held that the defendant is a defaulter. It has also been held while discussing issue No. (v) that the defendant has created a sub-tenancy of defendant No. 2 and further it was held that partial eviction will not suffice the purpose as stated by DW-4. It was held by the learned Appellate Court that since lease of the schedule premises stands in the name of Shyamal Kumar Khirwal and the father/ husband of the plaintiffs is not the lease holder, therefore, there is no relationship of landlord and tenant between the parties and appellants are not the landlord within the meaning of Section 2(f) of BBRC Act. The finding of the Appellate Court is based on the judgment in case of Mohan Laxman Hede Vs. Noormohamed Adam Shaikh, reported in AIR 1988 SC 1111 and judgment of this Hon’ble Court in case of Ram Awtar Singh Vs. Santosh Kumar Gupta, reported in (2014) 4 JBCJ 3 (HC). 17. It has been clearly held by this Court in the writ petition filed by the defendants that title of the appellants is not an issue in the suit for eviction. The suit for eviction is required to be decided on the basis of landlord and tenant relationship. The only question to be decided is whether there is relationship of landlord and tenant between the parties. The learned 1st Appellate Court misconstrued the definition of Section 2(f) of BBRC Act regarding landlord and finding derived that the lease of the property does not stands in the name of the father/ husband of the plaintiffs and as such, he is not the Owner and thus, he is not the landlord, is completely erroneous. The Hon’ble Supreme Court in case of Sri Ram Parischa Vs. Jagannath, reported in (1976) 4 SCC 184 has also revealed that in a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116 of the Act. The Judicial Committee in Kumar Krishna Raj Prasad Lal Singha Deo Vs. The Hon’ble Supreme Court in case of Sri Ram Parischa Vs. Jagannath, reported in (1976) 4 SCC 184 has also revealed that in a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116 of the Act. The Judicial Committee in Kumar Krishna Raj Prasad Lal Singha Deo Vs. Baraboni Coal Concern Ltd., reported in AIR 1937 PC 251 , when had occasion to examine the contention based on the words “at the beginning of the tenancy in Section 116 of the Evidence Act, pronounced that they do not give a ground for a person already in possession of land becoming tenant of another, to contend that there is no estoppel against his denying his subsequent lessor’s title. Ever since, the accepted position is that Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by adornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter’s title, even when he is sought to be evicted by the latter on a permitted ground. 18. From the judgment aforesaid and from perusal of the Lower Court’s Records, the written statements and the findings of the Trial Court, it is crystal clear that the relationship of landlord and tenant is established and there is clear-cut evidence that there is default in payment of rent by the defendants and sub-letting the tenanted premises has been sub-let by defendant No. 1 to defendant No. 2. 19. Consequently, the order of the learned Trial Court is hereby affirmed and order of reversal cannot be sustained as it has erroneously been decided that appellants are not the landlord, within the meaning of Section 2(f) of BBRC Act. The judgments relied upon by the defendants are not at all applicable in the instant case. 20. Resultantly, the instant Second Appeal is allowed. 21. As a sequel to the disposal of the instant Second Appeal, pending I.As., if any, also stand disposed of. 22. Let the LCR be sent back to the Court concerned.