Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.249 of 1995 Against the Judgment and Decree dated 07.07.1995 passed by the learned Addl. District Judge, IX, Patna in title appeal No.100 of 1991 dismissing the appeal and confirming the Judgment and Decree dated 18th July, 1991 passed by learned Addl. Munsif Ist, Patna City in title suit No.18A of 1985. ================================================== Sri Took Lal ...............Appellant/s Sri Thakur Pd. Dhar & Ors Versus ...................Respondent/s ================================================== Appearance : For the Appellant/s : Mr. Ramesh Kumar Chaudhary, Advocate For the Respondent/s : Mr. Ajay Kumar, Advocate ================================================== Dated : 26th day of June, 2013 P R E S E N T CORAM : THE HON’BLE MR. JUSTICE MUNGESHWAR SAHOO O R A L J U D G M E N T 1. The defendant appellant appellant have filed this second appeal against the Judgment and Decree dated 07.07.1995 passed by the learned Addl. District Judge IXth, Patna in Title appeal No.100 of 1991 whereby the learned lower appellate Court dismissed the appeal and thereby
Legal Reasoning
confirmed the Judgment and Decree of the trial Court dated 18.7.1991 passed by the learned Addl. Munsif Ist, Patna City in title suit No.18A of 1985. 2 Patna High Court SA No.249 of 1995 dt.26-06-2013 2 / 7 2. The plaintiff respondent filed the aforesaid suit for declaration that the defendants are in possession of the suit property as licensee and, therefore, prayed for eviction of the defendants. The plaintiff’s case in short is that the suit land over which a residential house has been constructed by the plaintiff was initially allotted in the name of father, Tooklal by Ganga Bridge Project. When the father did not deposit the amount required by the Ganga Bridge Project, the allotment was cancelled and subsequently, the land was allotted in the name of the plaintiff. The plaintiff was required to deposit the amount of Rs.4364 and odd. When the plaintiff deposited the said amount, the land was allotted in favour of the plaintiff by terms of allotment letter dated 14.10.1975 by the Ganga Bridge Project. After allotment, the plaintiff came in possession and constructed the house and 3 rooms. The plaintiff allowed the defendants who are father and brothers to live as there was fiduciary relationship between them. The defendant No.1 is father and the defendant No.2 and 3 are the brothers. 3. The defendant No.1, i.e., father Tooklal filed contesting written statement alleging that his self acquired property was acquired by Ganga Bridge Project and originally land was allotted in his name. Therefore, the defendants are residing in the suit premises not a licensee but as owner. 4. The trial Court recorded the finding that the defendants are licensee. The learned trial Court also recorded the finding that the suit house has been constructed by the plaintiff. Accordingly, decreed the suit in favour of the plaintiff. 3 Patna High Court SA No.249 of 1995 dt.26-06-2013 3 / 7 5. The defendants then filed appeal before the lower appellate Court. The lower appellate Court recording the same finding dismissed the appeal. 6. On 17.12.1997, the following substantial question of law was formulated when the second appeal was admitted :- “Whether the impugned Judgments and Decrees are vitiated on account of non-compliance of the provisions contained in Section 106 of the Transfer of property Act in view of the finding recorded by the two Courts below that the appellant is the licensee to whom the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 does not apply”. 7.
Legal Reasoning
The learned counsel, Mr. Chaudhary appearing on behalf of the appellant at the very outset in addition to the substantial question of law formulated, raised 2 other substantial question of law. Firstly, that the plaintiff has not properly valued the suit property at its market value and no advelorum Court fee paid by him but the Courts below without deciding this question have decreed the plaintiff’s suit for recovery of possession of the suit property. Secondly, that the suit itself was bad for non-joinder of necessary party, i.e., Ganga Bridge Project but the Courts below have not decided this question also, therefore, the Judgment of both the Courts below are vitiated. 8. So far the substantial question of law formulated is concerned, the learned counsel submitted that notice was necessary to be issued but no notice was served, therefore, the Judgments are vitiated. On these grounds, the learned counsel, submitted that the impugned Judgment and Decrees are liable to be set aside. 4 Patna High Court SA No.249 of 1995 dt.26-06-2013 4 / 7 9. On the other hand, the learned counsel, Mr. Kumar appearing on behalf of the respondent submitted that none of the questions raised by the learned counsel for the appellant are substantial question of law. So far the substantial question of law formulated also is not involved for decision in this second appeal because Section 106 of Transfer of Property Act is not applicable in the present case. On these grounds, the learned counsel submitted that the second appeal is liable to be dismissed. 10. It may be mentioned here that the original defendant No.1, Tooklal was the original appellant in the second appeal. On his death, his two sons have been transposed as the appellant. Prayer was made for eviction of all the 3 defendants by the sole plaintiff respondent No.1. The father has died and the two sons are fighting against the elder brother. Admittedly, both the Courts below after appreciation of the evidences oral as well as documentary recorded concurrently that the defendants are the licensee as claimed by the plaintiff. It is also admitted fact that property was allotted by Ganga Bridge Project in the year 1975 by ext.4D exclusively in the name of the plaintiff. It is also admitted fact that originally the allotment letter was issued in favour of the defendant No.1 but subsequently, it was cancelled. According to the defendant No.1, the plaintiff was residing separately. Now, therefore in view of the finding that the defendants are licensee whether the impugned Judgment and Decree are to be vitiated for non-compliance of issuance of notice under Section 106 of the Transfer of Property Act. 11. Section 106 of the Transfer of Property Act reads as follows : 106. Duration of certain leases in absence of written contract or localusage 5 Patna High Court SA No.249 of 1995 dt.26-06-2013 5 / 7 (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the period giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous pat of the property. 12.
Decision
In view of the above provision, it is clear that notice is required in case of lease of immovable property for agricultural or manufacturing purposes and not in other cases. Admittedly, in the present case, it is not the case of either party that lease was granted by the plaintiff to the defendant either for agricultural purposes or for manufacturing purpose. Therefore, in my opinion, Section 106 of Transfer of Property Act is not applicable at all and therefore, notice is necessary. The substantial question formulated, therefore, does not arise in this second appeal for consideration. Thus, it is answered against the appellant and in favour of the respondent. 13. So far the point raised by the appellant that the plaintiff has not valued the suit at it market value and has not paid the advelorum Court 6 Patna High Court SA No.249 of 1995 dt.26-06-2013 6 / 7 fee is concerned in the case of Sri Rathnavarmaraja Vs. Smt. Vimla A.I.R. 1961 SC 1299, the Hon’ble Supreme Court has held as follows : “We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint. Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the state. How by an order relating to the adequacy of the court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again the jurisdiction in revision exercise by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the Court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint.” 14. This decision of the Hon’ble Supreme Court has been followed by a Full Bench decision of this High Court in the case of Anil Kumar Vs. Ram Pravesh Dubey 1987 P.L.J.R. 370 paragraph 30. In my opinion, therefore, in view of the settled proposition of law, the point raised by the appellant is not a substantial question of law for decision in this second appeal and it does not affect the right of the appellant. 15. The second point raised by the appellant that Ganga Bridge Project should have been made party in the present case is concerned, it may be mentioned here that Ganga Bridge Project is not claiming title to the property. The only case of the party is that the property was allotted by Ganga Bridge Project in favour of the plaintiff respondent. This fact is not disputed by the defendant. The dispute between the plaintiff and the defendant is that according to the plaintiff, the defendant is licensee whereas according to the defendants, they are living there as owner 7 Patna High Court SA No.249 of 1995 dt.26-06-2013 7 / 7 thereof. For deciding this controversy between the plaintiff and the defendant, it is not necessary to hear the Ganga Bridge Project. 16. In the case of Mumbai International Airport Vs. Regency Convention Centre 2010 (7) S.C.C. 417, the Hon’ble Supreme Court considering order 1 Rule 10 C.P.C. held that a necessary party is a person who ought to have been joined as a party and in whose absence, no effective decree could be passed at all by the Court. It cannot be said that here in the instant case in absence of Ganga Bridge Project, no effective decree could have been passed and non-joinder of Ganga Bridge Project the Judgments are vitiated. In my opinion, therefore this point raised by the learned counsel for the appellant is also not a substantial question of law. 17. From perusal of the records, it appears that in spite of the finding of the Courts below that the defendants are licensee, the defendants are residing there since after the decree also. 18. In view of my above discussion, I find that no substantial question of law is involved and the substantial question of law formulated does not arise for consideration in this second appeal as stated above. 19. In the result, this second appeal is dismissed with cost of Rs.10,000/- to be paid by the appellants to the respondent plaintiff within 2 months from today failing which the plaintiff respondent No.1 is at liberty to realise the same through the process of the Court. (Mungeshwar Sahoo, J.) Sanjeev/