Md. Jamir v. Rajesh Kumar

3. The appellant herein was the defendant before the trial Court. The suit was filed by the respondents seeking a decree for eviction against the appellant in respect of a shop, detailed in the Scheduled attached to the plaint. He also sought for relief of delivery of vacant possession of the shop to the plaintiff and payment of arrears of rent of Rs. 3,000/- and other consequential reliefs including payment of future monthly rent etc. For the sake of convenience, the points have been described in the present order as per their partition before the trial Court.

4. As per the plaintiff’s case before the trial Court, father of the plaintiff Late Suba Ram Sah had purchased the suit property through a registered sale deed dated

18.12.1937 in the name of Most. Shahodra Kuer ( deceased), mother of the plaintiff. After the said purchase there was a Kiryanama( rent agreement) executed in June, 1939 between maternal grandfather of the defendant Ghulam Hussain and late Shahodra Kuer. Monthly rent initially fixed at Rs.

3.50/- per month was subsequently enhanced to Rs. 6.50/- 3 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013 per month by another Kiryanama on 3.6.1946. The monthly rent was increased up to Rs. 200/- per month. Initially two rooms of the suit property were in occupation of Ghulam Hussain. Subsequently he vacated one room and maintained his occupation as regards the other rooms. The rental was, accordingly, reduced to Rs. 150/- from Rs.200/- with effect from January, 1985. The suit property is a shop in which the original tenant was running business of Bidi- Pan( Betel shop). After the death of said Ghulam Hussain the appellant came in occupation of the said shop on monthly rental of Rs.150/-,

5. The claim of the plaintiff before the trial Court was that the appellant Md. Jamir and Late Ghulam Hussain had defaulted the payment of monthly rent of Rs.150/- from January, 1985 and the defendant was, therefore, liable to pay the arrears of rent as well as was liable for eviction. The plaintiff further made out a case that he was a businessman and required the shop in question to run his trade through the disputed shop as he did not have any suitable shop for that purpose. He claimed that he had bonafide requirement 4 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013 of the suit premises for his own occupation. He claimed before the trial Court that he asked the tenant i.e. the appellant to vacate the suit premises but he did not pay any heed to it nor did he pay the arrears of rent.

6. The defendant, who is appellant herein, filed his written statement disputing the very relationship of the landlord and tenant between the plaintiff and the defendant. On the contrary he claimed that he was tenant of one Syed Anwarul Hasan son of late Nurul Husan and that he had been paying rent to Syed Anwarul Haque at the rate of Rs. 12/- per month after deducting expenses of taxes and repair cost of shop from time to time. The defendant, thus, denied that he ever defaulted payment of rent to the plaintiff as there was no question of such payment to him, there being no relationship of landlord and tenant between them.

7. On the basis of these pleadings of the contesting parties, learned trial Court framed altogether 10 issues including issue Nos. 5, 8, 9 and 10 which reads thus:- “5. Is there any relation of landlord and tenant between plaintiff and defendant?

8. Is defendant defaulter of the rent? 5 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013

9. Are the plaintiffs in the personal necessities of the disputed shop?

10. Is the suit of the plaintiff is pure title suit in garb of eviction suit?”

8. After framing of the issues the parties adduced evidence, accordingly, both oral and documentary. Learned trial Court took up the issue Nos. 5, 8 and 10 together and after considering the evidence, both oral and documentary on record came to the finding that there could be no dispute over the fact that the plaintiff had right title and interest over the suit property and the defendant was certainly the tenant of the plaintiff which was apparent from the documentary as well as oral evidence. Learned trial Court came to the finding that there was no dispute of such relationship till maternal grandfather of the defendant, Ghulam Hussain was alive. Learned trial Court came to the specific finding that the defendant was a tenant of the disputed shop. That being the finding, learned trial Court held that Ghulam Hussain always paid rent to the plaintiff’s mother or the plaintiff himself and in such view, as per his own admission of the defendant, he defaulted in making 6 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013 payment of rent to the plaintiff and, accordingly, was liable to pay the arrears.

9. So far as the claim of the plaintiff that he was in personal necessity of the suit property for running his own business, learned trial Court disbelieved the same and decided the issue against the plaintiff on the basis of appraisal of evidence made available in course of trial. Learned trial Court, accordingly, decreed the suit with a direction to the defendant to vacate the suit premises and hand over the physical possession to the plaintiff and further that if the defendant failed then the plaintiff would be entitled to get it vacated through Court on cost. The learned trial Court also decreed that the plaintiff would be entitled to arrears of rent to the tune of Rs. 12,800/- from November, 1985 till delivery of judgment and future rent at the rate of Rs. 200/- per month.

10. The defendant/appellant preferred appeal against the said judgment and decree passed by learned trial Court vide T. A. No. 32 of 1991 which was heard by the Court of learned Additional District Judge ( FTC-No.1), 7 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013 Rohtas at Sasaram. Learned first appellate Court on the basis of the rival pleadings and the evidence available on record formulated three points including following two for consideration in the first appeal:- “i. Whether there is relationship of landlord and tenant in between the plaintiff and defendant? ii. Whether the defendant is defaulter of paying rent and liable to pay arrear rent as claimed?”

11. This is to be noted that the defendant while denying the relationship of landlord and tenant between the plaintiff and defendant had taken a plea that the registered sale deed dated 18.12.1937 executed by Nurul Hasan in favour of Sahodara Kuer was itself not a valid document as Nurul Hasan was not competent to transfer the land through the said registered sale deed. In such circumstance, according to the defendant,son of Nurul Hasan, namely, Anwarul Hasan succeeded the suit property after the death of Nurul Hasan and that being the position he had been paying rent to the Anwarul Hasan.

12. Learned first appellate Court took into account 8 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013 the fact that there was no agreement between Anwarul Hasan and the defendant of any tenancy. Learned first appellate Court also concurred with the finding of the trial Court holding that the relationship of landlord and tenant between Shodra Kuer and Ghulam Hussain was established in view of the stand of defendant himself that he had taken the disputed shop from his maternal grandfather, namely, Ghulam Hussain, therefore, the defendant became the tenant of Most. Sahodra Kuer, mother of the plaintiff. Having held thus, the learned first appellate Court dismissed the appeal and affirmed the findings of the trial Court vide judgment and decree dated 26.3.2011 and

8.4.2011 respectively.

13. Learned counsel appearing on behalf of the appellant has vehemently submitted that the Courts below did not go into the question of the validity of the registered sale deed dated 18.12.1937 under which the plaintiff’s mother Sahodra Kuer is said to have purchased the suit property from Nurul Hasan which was at the root of the dispute and in the absence of such adjudication the findings 9 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013 of the Courts below cannot be sustained and are liable to be set aside.

14. He has further submitted that the courts below did not take into consideration the effect of pendency of an independent suit filed by the Anawarul Hussain in 1986 Vide T. S. No. 11 of 1986 which is still pending before the trial Court.

15. In my opinion, the submission made on behalf of the appellant cannot be accepted. In a suit for eviction, the Courts are required to adjudicate upon the relationship of landlord and tenant between the contesting parties. As has been noted above, learned Courts below after considering all the evidence and material in detail came to the finding that relationship of landlord and tenant stood established. Further, it being the admitted position by the parties that the maternal grandfather of the defendant had been paying rent to the plaintiff and his mother from the very beginning, the defendant was estopped questioning the title of the plaintiff over the suit property by operation of Section 116 of the Evidence Act, 1872. The said 10 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013 provision is being quoted hereinbelow for ready reference:- “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, he permitted to deny that the landlord of 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.”

16. In the present case, the defendant did not dispute that there was relationship of landlord and tenant between mother of plaintiff and maternal grandfather of the defendant. The defendant also admitted that he came into occupation of the suit property after the death of his maternal grandfather Syed Ghulam Hussain. He could not be permitted to deny that the plaintiff, had, at the beginning of such tenancy of title to the suit property. Section 116 of the Indian Evidence Act, 1872 prohibits a person who came upon any immovable property by the licence of the person in possession thereof to deny that such person had a title to such possession at the time when such licence was given. The Privy Council in case of Bilas Kunwar Vs. Desraj Ranjit 11 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013 Singh reported in AIR 1915 PC 96 held in most unequivocal terms as follows:- “…….. A tenant who has been possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord.” This view has been recognized by the Supreme Court in case of Atyam Veerja Vs. Pechetti Venkenna reported in AIR 1966 SC 629 ( para 13). Again, in case of Tej Bhan Madan Vs. II ADJ reported in ( 1988) 3 SCC 137, the Supreme Court took the similar view and held that the principle, in its basic foundation meant no more than that under certain circumstances, law considered it unjust to allow or person to approbate and reprobate. In case of Bhgadi Kannababu and others vs. Vuggina Pydamma reported in ( 2006) 5 SCC 533 the Apex Court reiterated the same view applying the doctrine of Estoppel of tenant as contained in Section 116 of the Indian Evidence Act, 1872. (Para 17, supra).

17. In view of the above, in my opinion, the case as advanced by the defendant/appellant before the Courts 12 Patna High Court SA No.295 of 2011 (12) dt.08-03-2013 below as well as before this Court is squarely covered by the doctrine of estoppel of tenant as enunciated by Section 116 of the Indian Evidence Act, 1872. Applying the ratio laid down in case of Tej Bhan Madan Vs. II ADJ (Supra), I am of the view that the defendant in the present case cannot be allowed to approbate and reprobate at the same time.

18. In view of the above, I do not find any merit in this appeal and the appeal is, accordingly dismissed.

19. This Court takes note of the fact that the eviction suit was filed in the year 1986 and the suit was decreed in

1991. It has been pointed out that till date the decree has not been executed as the execution case is still pending. In such view of the matter, it is directed that the Execution case No. 5 of 2011 pending in the of Additional Munsif, First, Sasaram be expedited and the same be disposed of within a period six months communication/production of a copy of this order before the executing Court. Arun Kumar/- (Chakradhari Sharan Singh, J)