Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.544 of 2011 ====================================================== Rama Kant Khan son of late Hem Narayan Khan, resident of mouza Belni Mehat P.O. Mehat P.S. Bhairav Asthan Dist. Madhubani. .... .... Appellant/s Versus Digambar Mishra son of Pitambar Mishra resident of Mauza Rayam Tole Patti Tole P.O. Kolhiya P.S. Bhairava Ashan Dist. Madhubani. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Amis Kumar & Mr. Shankar Kumar Choudhary ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH C.A.V.ORDER 10 26-06-2013 This is an appeal under Section 100 of the Code of Civil Procedure directed against the judgment and decree dated 28.7.2011 and 10.8.2011 respectively passed in Eviction Appeal No. 4 of 2008 by learned Additional District & Sessions Judge, FTC-II, Madhubani, whereby and whereunder he has affirmed the judgment and decree dated 27.9.2008 and 18.10.2008 respectivelypassed by learned Munsif, Jhanjharpur in Eviction Suit No. 3 of 1998. Learned Munsif, Jhanjharpur vide his judgment dated 27.9.2008 came to a specific finding, on the basis of oral and documentary evidence, that the plaintiff, who is the appellant herein, failed to prove that there was relationship of landlord and tenant between the appellant and the
Legal Reasoning
respondent and thus, dismissed the eviction suit. Learned first appellate Court also concurred with the findings arrived at by the learned trial Court and dismissed the first appeal. Hence the present second appeal. 2. As per the appellant’s case, in a suit for eviction, as made out in the plaint, he was the karta and representative of his family. His father, namely, Hem Narayan Khan and one Musai Mishra jointly purchased plot 2 Patna High Court SA No.544 of 2011 2 / 8 No. 7318 under Khata no. 785 measuring 1 Katha 5 ½ dhur of Mouza Raiyam, P.S. Bhairab Asthan and other lands vide sale deed dated 22.1.1972 and got possession over it. The said Hem Narayan Khan and Musai Mishra jointly constructed a building in the said plot in the year 1994 having six rooms from east to west. The rooms were covered by Tin sheds over the roof. Five rooms contiguous west, facing south having Sahan and six rooms from east facing facing east were also constructed. The eastern room was sub divided in to two rooms, both facing east. As per the plaintiff’s case, both the above co-sharers were in possession over the said rooms separately but each of them felt inconvenience in possession and utilization and, therefore, there was a final partition of rooms between them, according to which, western three rooms fell in the share of Musai Mishra and eastern four rooms including two sub divided small rooms fell in the share of the family of the plaintiff. It was further case of the plaintiff that late Hem Narayan Khan died leaving behind his only son being the appellant and he thus, entered into the shoes of his father. The appellant let out two rooms to the defendant on a monthly rental of Rs.300/- for eleven months from January, 1997 to November, 1997 but stopped payment of rent from November, 1997. It was further case that tenancy of the said two rooms expired in the month of December, 1997. One room facing east was let out for Rs. 100/- per month, whereas another room facing south was let out for Rs. 200/- per month, according to their size and dimension to the respondents. After expiry of the period of tenancy the appellant is said to have requested the respondent to vacate the suit premise as he required the same for personal use, the respondent refused and did not pay even the arrears of rent which compelled the appellant to file the eviction suit. 3 Patna High Court SA No.544 of 2011 3 / 8 3. Defendant who is respondent in the present second appeal contested the suit and filed his written statement. The respondent denied the story set up by the plaintiff regarding purchase of any land of Khata no. 785, S.P. no. 7318 of Mauza Raiyam P.S. Bhairabasthan and asserted that if any such sale deed dated 11.1.1972 was brought into existence; it was forged, fabricated and inoperative. He contended that the appellant/plaintiff or any other person never came in possession over any portion of the land by virtue of alleged sale deed. He denied that Hem Narayan Khan, the father of the plaintiff and Musai Mishra ever constructed any building over the property in question. Strongly denying the relationship of landlord and tenant between the appellant and the respondent, respondent took a plea that there was no question of paying any rent to the appellant/plaintiff at any point of time or stopping such payment. He claimed that the suit premise belonged to him. 4. The respondent asserted that as a matter of fact, the appellant filed the suit for declaration of title and confirmation of possession in the garb of eviction Suit under Bihar Buildings (Lease, Rent and Eviction) Control, Act. According to him in Mauza Raiyam the land appertaining to Khata no. 785 S.P. No. 7318 admeasuring 7 katha and 7 dhurs were recorded in C.S. Khatiyan as partikadin under the ex-proprietor Raj Darbhanga. The ex-landlord did not transfer any part of land of Khata No. 785 S.P. No. 7318 in the name of Ram Adhin Thakur. The grand father of the respondent has encroached upon 1 katha of land from eastern side of the plot in question as detailed in Schedule I of the written statement about 80 years back and the same was being utilized for stocking fuel, paddy stalks by him. After the death of his grand father, father of the appellant and the 4 Patna High Court SA No.544 of 2011 4 / 8 appellant himself had been utilizing the property for the same purpose. It was further pleaded by the respondent that his co-brother Bishwambhar Mishra had constructed a phoosh house, being an unemployed person and had started a shop of readymade garments in the year 1984. The house was along with the room and garments of the shop were damaged and washed away in the year 1987 floods and it was compensated by the Bank as the business was supported by the bank loan. Thereafter the respondent along with his co-brother started construction of house consisting of two rooms one facing east and another facing south over the said land. He further pleaded that Musai Mishra requested the respondent to make adjustment as he was also desirous to construct a brick built house adjoining west of the plinth of the respondent house. The respondent and his co-brother allowed the said Bishwambhar Mishra to construct the house and accordingly the house was constructed. The respondent denied the title of the plaintiff and specifically denied of having ever entered into any tenancy agreement with the appellant. 5. On the basis of the pleadings of the parties, learned trial Court framed nine issues. Issue no. VI being most crucial is being quoted hereinbelow:- “VI. Whether there is any relationship of landlord and tenant in between the plaintiff and the defendant? 6. It appears that on behalf of the appellant/plaintiff altogether 12 witnesses were examined and documents were exhibited. The respondent/defendant also got examined 9 witnesses on his behalf and got exhibited certain documents as evidence. On the basis of appraisal, analysis and scrutiny of both oral and documentary evidence, learned trial Court 5 Patna High Court SA No.544 of 2011 5 / 8 came to a finding that there existed no relationship of landlord and tenant between the appellant and the respondent. 7. From the reading of the judgment of the trial Court it appears that he took into consideration the evidence of all plaintiff witness as well as the defendant witnesses as well as documentary evidence on record before reaching to his finding. 8. Learned trial Court took into account the fact that there were material contradiction in the statement of the plaintiff as P.W. 8 and other plaintiff’s witnesses like P.W. 1 and 3. P.W. 8 the plaintiff/appellant is said to have stated that the respondent went to his house seeking suit premises on rent basis, when other witnesses namely, Phul Mishra, Rajendra Mishra, Shubh Kant Mishra, Lalan Mishra and Phekan Mishra were present. Phekan Mishra ( PW 1) is said to have stated that negotiation took place in front of the house on the road. Learned trial Court did not rely upon the statement of P.W.2 Phul Mishra as he was in inimical terms with the respondent since he admitted that he had earlier deposed against the respondent in a complaint petition filed by the appellant/plaintiff. Learned trial Court also considered the aspect that the plaintiff had also claimed that land over which suit house was situated was jointly purchased by his father and one Musai Mishra, where as Exhibit-c, the certified copy of the plaint of partition Suit No. 89 of 2000 showed that the appellant filed the said partition suit against Musai Mishra in which plot no. 7318 under Khata no. 785 area 1 katha 5 ½ dhurs over which the suit house is situated, was also shown as a suit property against which he claimed partition. He thus, disbelieved the plaintiff’s claim that he got four rooms including two rooms, which is the subject matter of the eviction suit. 6 Patna High Court SA No.544 of 2011 6 / 8 9. Learned trial Court also came to a finding that there was no evidence of monthly rent. In view of the above learned trial Court came to a finding that plaintiff/appellant failed to establish the relationship of landlord and tenant between the appellant and the respondent vide his judgment dated 27.9.2008 and accordingly, dismissed the suit. 10. The appellant herein aggrieved by the judgment and decree of the learned trial Court preferred appeal under Section 96 of the Code of Civil Procedure which was sent to the file of learned Additional District & Sessions Judge, FTC-II, Madhubani. Learned first Appellate Court on the basis of material available on record formulated five points for consideration including point nos. B and C which are being quoted hereinbelow:- “B. Is there relationship of landlord and tenant between plaintiff and defendant in respect of suit premises? C. Whether the plaintiff requires the suit premises as described in the plaint bonafidely for the personal use?” 11. Learned First Appellate Court also examined in detail the evidence available on record, both oral and documentary. Learned first appellate Court also, considering such evidence came to a finding that there existed a bonafide land dispute between the appellant and the respondent in respect of the suit premises and ownership of the plaintiff or the defendant over the suit property could not be decided in eviction suit. Learned first appellate Court held that plaintiff failed to prove that there was any relationship of landlord and tenant between the plaintiff and the defendant in respect of the suit premises. He, accordingly, dismissed the appeal concurring with the finding arrived at by the learned trial Court. 12. Learned Counsel appearing on behalf of the appellant has vehemently submitted that the Courts below wrongly held that there was no 7 Patna High Court SA No.544 of 2011 7 / 8 relationship of landlord and tenant between the appellant and the respondent though there was sufficient material on record in this behalf. He contended that the evidence recorded by the appellate Court was perverse and illegal and against the evidence on record. He further submitted that the appellate Court could not appreciate the entire facts and connected evidence on record which proved the fact that the appellant was a landlord of the suit house and that learned first appellant Court wrongly held that there existed bonafide dispute between the parties which could not be decided in limited scope of Section 4 of the Bihar Buildings ( Lease, Rent and Eviction) Control Act. 13. After going through two judgments of the Courts below, it appears that the Courts below came to a concurrent finding that there did not exist any relationship of landlord and tenant as there was no sufficient evidence to prove this fact. While coming to this conclusion the Courts below have considered not only the oral but also documentary evidence on record and after having appraised them and analyzed them recorded their respective findings which are under challenge in the present second appeal.
Legal Reasoning
Though learned counsel for the appellant has vehemently submitted that the findings of the Courts below are perverse but on perusal of the judgment it appears that findings cannot be said to be without any evidence or contrary to the evidence brought on record in course of trial. 14. Learned counsel for the appellant has placed reliance on a judgment reported in AIR 2002 SC 136( Rajendra Tiwary Vs. Basudeo Prasad). The Supreme Court held in this case that scope of inquiry before Court exercising power under Bihar Buildings ( Lease, Rent and Eviction ) Control Act was limited to the question as to whether the ground of eviction of defendant had been made out under the Act. The question of title of the 8 Patna High Court SA No.544 of 2011 8 / 8 parties to the suit premise is not relevant, as per the said judgment of the Supreme Court, having regard to the width of the definition of the word “landlord” and “tenant” occurring in Clause (f) and (h) respectively of Section 2 of the Act. Jurisdiction of this Court in exercise of power under Section 100 of the Code of Civil Procedure while considering the concurrent findings of the Courts below are very limited. The High Court cannot disturb the concurrent finding of fact unless finding are shown to be perverse, without evidence or contrary to evidence on record.
Decision
15. In view of the above, this appeal is dismissed without cost. (Chakradhari Sharan Singh, J) Arun Kumar/-