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2023 DIGILAW 106 (JHR)

Bhoodeo Mandal v. Mazhar Imam

2023-02-02

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : [Sanjay Kumar Dwivedi, J.] 1. Heard Mr. Ayush Aditya, the learned counsel appearing on behalf of the appellant and Mr. Ashish Kumar Thakur, the learned counsel appearing on behalf of the respondents. 2. This second appeal has been filed against the judgment dated 12.06.2012 and the decree following thereupon signed on 22.06.2012 passed in Eviction Appeal No. 05 of 2007 dismissing the appeal and confirming the judgment dated 31.07.2007 and decree following thereupon signed on 13.08.2007 passed by learned Munsif, Giridih, in Eviction Suit No. 05 of 1999. 3. The suit was instituted by the respondents/plaintiffs to handover the vacant possession of the schedule-A to the respondents/plaintiffs within a period fixed by the Court. The suit was decreed by the judgment dated 31.07.2007. 4. Being aggrieved with that, the appellant/defendant has filed the Title Appeal No. 05 of 2007 which was decided by the judgment dated 12.06.2012 by the learned Principal District Judge, Giridih, whereby the appeal was dismissed and the judgment of the learned trial court was affirmed. 5. Aggrieved with that, the present second appeal has been filed. 6. The suit was instituted before the learned trial court alleging therein that respondents/plaintiffs instituted the aforesaid eviction suit against the appellant/defendant stating interalia that Suit premises described in Schedule A to the plaint was exclusive property of one Karim Bux, who died leaving behind him sole daughter Bibi Rafikan. As such, Bibi Rafikan inherited the said property and came into actual physical possession thereof. Since, Bibi Rafikan was a pardanasheen lady hence she appointed Abdul Razzak s/o Late Nawab Ali as Rakhwalikar for looking after the cultivation work and other properties and collect from time to time the usufructs of the cultivation as well as the rent from the tenants. Abdul Razzak used to realize the house rent from the tenants on behalf of Bibi Rafikan and make over the same to her. This provision was acknowledged by Abdul Razzak in several letter written by him. After death of Abdul Razzak his son Riazuddin also started to work as Rakhwalikar of Bibi Rafikan. It is further stated that on 16.12.1961 Bibi Rafikan executed the registered deed of gift in respect of lands of mauja-Sewri in favour of her daughter Noor Jannat and another gift deed dt.20.01.1969 in favour of Bibi Noor Jannat and her husband Atiullah and put them in actual physical possession over the same. It is further stated that on 16.12.1961 Bibi Rafikan executed the registered deed of gift in respect of lands of mauja-Sewri in favour of her daughter Noor Jannat and another gift deed dt.20.01.1969 in favour of Bibi Noor Jannat and her husband Atiullah and put them in actual physical possession over the same. After death of Bibi Rafikan her daughters namely Bibi Jaitun and Bibi Noor Jannat inherited the properties of Bibi Rafikan and came into possession. Bibi Jaitun also died issueless in the year 1978-1979 and her interests in the properties of Karim Bux devolved upon Bibi Noor Jannat and her husband, who became absolute owners of the entire property by virtue of inheritance and gift. It is further stated that Md. Riazuddin s/o Abdul Razzak filed a Title Suit no. 101/85 against Bibi Noor Jannat and one Md. Khalil Khan in the Court of Munsif, Giridih claiming entire lands of Karim Bux by virtue of oral gift dr.21.03.1935 and also challenged the sale deed executed by Bibi Noor Jannat in favour of Khalil Khan dt.7.01.1985 to be illegal, void, collusive and without any right or authority, which was not binding upon him and also prayed for confirmation of his possession but the said suit was dismissed vide judgment and decree dt.29.07.86 passed by 2nd Addl. Munsif, Giridih. Against the said judgment and decree an appeal was preferred by Md. Riazuddin, which was also dismissed on contest with costs vide judgment dt.30.06.94 passed by 2nd Addl. District Judge, Giridih. A Second Appeal was also preferred by Md. Riazuddin before the Hon'ble High Court of Patna, Ranchi Bench bearing S.A no. 69 of 1994 (R), which was also dismissed on 21.11.1996. L.P.A no. 45 of 1996 (R) was also filed, which was also dismissed on 2.08.96. Again M.J.C no. 639 of 1996 (R) was filed, which was also dismissed vide order dated 18.02.97. It is further alleged that defendant was inducted as a tenant over the suit premises by Bibi Rafikan @ Rs. 100 per month, who was paying rent to her through Abdul Razzak. Thereafter, his son Md. Riazuddin as Rakhwalikar/Agent issued him rent receipts on her behalf. Subsequently rent was raised to Rs. 125 per month. It is further alleged that defendant was inducted as a tenant over the suit premises by Bibi Rafikan @ Rs. 100 per month, who was paying rent to her through Abdul Razzak. Thereafter, his son Md. Riazuddin as Rakhwalikar/Agent issued him rent receipts on her behalf. Subsequently rent was raised to Rs. 125 per month. The plaintiffs are the legal heirs and successors of the suit premises and entitled to receive rent from the defendant but the defendant on repeated demands started avoiding the payment of rents and its arrears on different pleas then an Advocate notice was issued by plaintiff no. 1 against defendant to vacate the suit premises and also to pay arrears of rent through her Advocate Sri Jogeshwar Ram through registered letter with A/D cover, which was refused by the defendant to receive on 23.09.86. Again lawyer's notice through Advocate Sri Ram Mohan Prasad dt.27.01.97 was issued, which was received by the defendant, who sent reply through Sri Govind Prasad no. 1, Advocate dt.18.02.97. It is further alleged that defendant has not been paying rent and arrears of rent on several demands and request in the month of January 1997 and it was also requested to vacate the suit premises and hand over possession in the month of March 1997 but he avoided the matter. Lastly the plaintiff renewed his demand in the month of January 1999 which was refused by the defendant. It is further pleaded that the plaintiffs require the suit premises reasonably and in good faith for their own occupation as their elder son Mazhar Imam is unemployed since long and wants to start Hardware business in the suit premises to maintain the family members and plaintiffs. The defendant has also constructed his own house. Partial eviction from the suit premises will not satisfy the necessity of the plaintiff hence this suit with following reliefs: 7. In view of above prayer was made that a decree of eviction be passed in favour of plaintiffs directing the defendant to give vacant possession of Schedule A premises to the plaintiffs within a period fixed by the Court, failing which khas possession be provided through process of Court along with cost of suit and other reliefs as deemed fit by the Court. 8. The case of the defendant/appellant is that upon summons defendants appeared and filed his written statement. 8. The case of the defendant/appellant is that upon summons defendants appeared and filed his written statement. It is pleaded that the suit is bad and not maintainable in absence of necessary party Md. Riazuddin. It is pleaded that there is no relationship of landlord and tenant between the parties. It is further admitted that notice was served upon the defendant by the plaintiffs through their lawyer Sri Ram Mohan Prasad on 27.01.97 requesting the defendant to attorn himself to be a tenant under the plaintiffs and the defendant replied through Sri Govind Prasad no. 1, Adv stating therein clear words that the plaintiffs were never the owner of the suit holding nor they were the landlord of the defendant nor the defendant could attorn the plaintiffs to be his landlord. The plaintiffs have filed the present suit to establish their title and recovery of possession for which only regular title suit is maintainable under the law and for which the plaintiffs are bound to pay ad volrem court fee on the plaint on the actual market value of the suit premises, which cannot be less than Rs. 50,000/- and the suit is beyond the pecuniary jurisdiction of this learned court as well. It is further alleged that the land property comprised in Municipal Holding no. 884 of Ward no. IV (Old) was owned and possessed by Hazi Abdul Razzak of Pachamba and he used to deal with this property as its absolute owner. The plaintiffs never came in possession of the said property and also other properties held by Hazi Abdul Razzak at Pachamba. This defendant has never seen Karim Bux or his alleged daughter Bibi Rafikan and she never came in possession of any property at Pachamba. The allegations are quite vague in as much as there is no mention as to from where Bibi Rafikan used to come and visit Pachamba and also as to when and how she appointed Md. Razzak her Rakhwala. The defendant has emphatically denied the said allegation and also the allegation that Bibi Rafikan used to collect rent through Abdul Razzak. The defendant denies that Abdul Razzak had ever written letter to Bibi Rafikan acknowledging her to be the owner of the property. It is also denied that after death of Abdul Razzak his son Riazuddin has been doing the same work. The defendant denies that Abdul Razzak had ever written letter to Bibi Rafikan acknowledging her to be the owner of the property. It is also denied that after death of Abdul Razzak his son Riazuddin has been doing the same work. This defendant has also denied that Bibi Jaitun or Bibi Noor Jannat acquired any property by virtue of any inheritance or gift whatsoever. It is further pleaded that this defendant was never a party in no. 101/85 and to the appeals arising out of the same and the said suit never related to holding in question and the learned court has not decided right, title, interest of the parties in and over the present suit holding. It is also denied that this defendant was ever inducted as tenant by Bibi Rafikan in the suit premises at the rent of Rs. 100 per month. It is also incorrect to say that Md. Razzak and his son Riazuddin had been realizing rent from the defendant on her behalf as her agent or Rakhwala. It is pleaded by the defendant that in the year 1971 he was inducted as monthly tenant by Abdul Razzak at the rate of Rs. 23 per month only and thereafter, it was raised several times and at present the rate is Rs. 125 per month. After death of Abdul Razzak his son Riazuddin has been realizing monthly rent from the defendant as absolute owner of the property and they have been granting due rent receipt stating themselves to be the owner of the suit holding. The plaintiffs are putting illegal pressure on the defendant to pay rent to them, which the defendant could not do unless the dispute between Md. Riazuddin and the plaintiffs is finally decided by a competent court. It is also pleaded that alleged need of the plaintiff is imaginary, manufactured and invented to make some ground for eviction. As such, this suit is fit to be dismissed with exemplary costs. 9. Mr. Ayush Aditya, the learned counsel appearing on behalf of the appellant submits that the learned court while deciding the relationship of land-lord and tenant, has directed to vacate the appellant which is against the mandate of law. He further submits that only on the basis of Ext.4 to Ext.8, which are the judgment of earlier suit, the learned courts directed the appellant to vacate, which is perverse in law. He further submits that only on the basis of Ext.4 to Ext.8, which are the judgment of earlier suit, the learned courts directed the appellant to vacate, which is perverse in law. He submits that in absence of any chit of paper, if that relationship has been done and the irrelevant consideration has come in the judgment that is the law point and on that basis this second appeal can be admitted and to buttress his argument, he relied in the case of “Abdul Raheem v. Karnataka Electricity Board” reported in (2007) 14 SCC 138 . Paragraph no. 12 of the said judgment is quoted herein below: “12. However, there cannot be any doubt whatsoever that consideration of irrelevant fact and non-consideration of relevant fact would give rise to a substantial question of law. Reversal of a finding of fact arrived at by the first appellate court ignoring vital documents may also lead to a substantial question of law. In Vidhyadhar v. Manikrao [ (1999) 3 SCC 573 ] this Court held : (SCC p. 586, para 23) “23. The findings of fact concurrently recorded by the trial court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion.” 10. On these grounds, he submits that this second appeal may kindly be admitted. 11. On the other hand, Mr. Ashish Kumar Thakur, the learned counsel appearing on behalf of the respondents/plaintiffs submits that the learned trial court as well as the learned appellate court has considered the Ext.4 C.C. of the judgment dated 19.07.1986 passed by the 2nd Additional Munsif, in Title Suit No. 101 of 1985/153 of 85, Ext.4/a judgment dated 30.06.1994 passed by learned 2nd Addl. Ashish Kumar Thakur, the learned counsel appearing on behalf of the respondents/plaintiffs submits that the learned trial court as well as the learned appellate court has considered the Ext.4 C.C. of the judgment dated 19.07.1986 passed by the 2nd Additional Munsif, in Title Suit No. 101 of 1985/153 of 85, Ext.4/a judgment dated 30.06.1994 passed by learned 2nd Addl. District Judge, Giridih in Title Appeal No. 67/86 arising out of T.S. No. 101 of 85/153 of 85, Ext.5-C.C. of decree passed in above appeal, Ext.6-C.C. of order passed in Second Appeal No. 69/1994(R) by the Hon'ble High Court of Judicature at Patna, Ranchi Bench dated 21.11.1995, Ext.7-C.C. of order passed in L.P.A./No. 45 of 1996(R) dated 30.07.1996 by Hon'ble High Court of Patna, Ranch Bench, Ext.8-C.C. of order passed in M.J.C. No. 639/96(R) dated 18.02.1997 passed by Hon'ble High Court of Patna, Ranchi Bench and considering all these aspects, the learned trial court as well as the learned appellate court have passed the judgment and there is no illegality in the judgments of the learned trial court as well as the learned appellate court. There is no substantial question of law involved and this Court while sitting under section 100 of the C.P.C may not admit the second appeal. 12. In view of the above submission of the learned counsel appearing on behalf of the parties, the Court has gone through the judgments of the learned trial court as well as the learned appellate court and finds that the learned trial court has framed nine issues to decide the suit. While deciding the issue with regard to land-lord and tenant relationship, the learned trial court has considered the exhibits as well as the evidence adduced on behalf of the parties and thereafter has held that the land lord and tenant relationship is established in view of the exhibits with regard to the earlier proceedings and considering that, the suit was dismissed. The learned appellate court has formulated three points to decide the appeal. Considering that in course of time, Riazuddin and Abdul Razak with ulterior motive has lodged the case challenging the very ownership of the title Bibi Rafikan which he lost upto the High Court and considering that the court held that there is nothing to institute a separate title suit against Riazuddin the alleged land lord of the defendant. Considering that in course of time, Riazuddin and Abdul Razak with ulterior motive has lodged the case challenging the very ownership of the title Bibi Rafikan which he lost upto the High Court and considering that the court held that there is nothing to institute a separate title suit against Riazuddin the alleged land lord of the defendant. The court relying on Ext.4 and Ext.8 came to the conclusion that the appellant lost the title of battle with the present plaintiffs ancestor and considering that, held that the plaintiffs to receive the rent of the suit premises without going into the question of title. The plaintiffs have been able to prove on oath that Md. Riazuddin was working in the capacity of Rakhwalikar/agent to receive the rent on behalf of the plaintiffs and that has not been repudiated by the defendant through oral and documentary evidence, rather it has been admitted by the defendant himself that he never seen the document of title of Riazuddin over the suit premises nor any tenancy agreement was executed and considering that definition 2(f) of Bihar Building (Lease, Rent and Eviction) Control Act, the learned appellate court has held that Riazuddin also carrying the capacity of land lord and in that view of the matter the relationship of land lord and tenant between the plaintiff and defendant has been answered by the learned appellate court. So far necessity of premises in question is concerned, the learned appellate court has stated that he required the suit premises reasonably and in good faith for their own occupation as his elder son Mazhar Imam who is unemployed since long time and wants to start hardware business in the suit premises to maintain the family members and plaintiffs. It is well settled that the tenant can be asked to vacate the house if the owner wants to start its own business and that ground was taken which has not been repudiated by the defendant by any cogent evidence and that is why it has been held that bonafide of vacation is there. So far as the judgment relied by Mr. So far as the judgment relied by Mr. Ayush Aditya, the learned counsel for the appellant is concerned, that is not in dispute and if it is held that irrelevant factors have been considered by the learned trial court and the appellate court that can be a good point to admit the second appeal however in the case in hand the learned courts have considered Ext.4 to Ext.8 as discussed hereinabove which establish that landlord and tenant relationship and that is affirmed in earlier round of litigation upto the High Court in second appeal as well as further in the writ petition as well as the L.P.A. There is concurrent finding of both the courts. No perversity has been found by the courts and there is no perversity and no substantial question of law is found by the Court. There is no necessity to admit the second appeal sitting under section 100 of the CPC in absence of any substantial question of law. 13. Accordingly, Second Appeal No. 85 of 2012 is dismissed. 14. Pending petition, if any, also stands dismissed.