Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.284 of 2011 ====================================================== 1. Smt. Kanti Devi, Wife of Late Chandrika Singh. 2. Deepak Kumar Singh, Son of Late Chandrika Singh Both Residents of Jai Ram Das Marwari Lane, P.O.-Khalifabagh, P.S.- Kotwali, District-Bhagalpur---Defendants/Appellants/Appellants. Versus 1. Narain Khawas, Son of Late Badrai Prasad Khawas, Resident of Mohalla-Chandan Nagar, P.S.-Chandan Nagar,District-Hoogly(West Bengal). 2. Shavitri Devi, Wife of Late Gopi Krishna Neyogi. 3. Anuradha Parihar. 4. Sujata Kumari. Both Daughter of Late Gopi Krishna Neyogi. 5. Vijay Kumar, Son of Late Gopi Krishna Neyogi. All respondent no.2 to 5 are residents of Jai Ram Das Marwari Lane, P.O.-Khalifabagh, P.S.-Kotwali, District-Bhagalpur. -------Plaintiffs/Respondents/Respondent 1st set. 6. Rajendra Singh. 7. Surendra Singh. 8. Arun Kumar Singh. All Sons of Late Chandrika Singh. All are residents of Jai Ram Das Marwari Lane, P.O.-Khalifabagh, P.S.- Kotwali, District-Bhagalpur-Defendants-Appellants-Respondent 2nd set. ====================================================== Appearance : For the Appellant/s : Mr. Sanjay Kumar Ghosarvey, Adv. For the Respondent/s : Mr. Bimlendu Mishra, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE V NATH ORAL ORDER 11 24-04-2013 Heard Mr. Sanjay Kumar Ghosarvey, the learned
Legal Reasoning
counsel appearing on behalf of the appellants and Mr. Bimlendu Mishra, the learned counsel appearing on behalf of the respondents. 2. The defendants in the suit for eviction are the appellants in this appeal against the judgment and decree of affirmance by the appellate court below upholding the decree of eviction against the defendants. 2 Patna High Court SA No.284 of 2011 (11) dt.24-04-2013 2 / 6 3. The suit was filed for eviction of the defendants from the suit premises on the ground of default in payment of rent and personal necessity. The facts of the case would unveil that the suit premises originally belonged to Rameshwar Lal Nai who executed two gift deeds for the two different portions in favour of his two daughter-in-laws namely Anaro Debi and Dulo Debi. The dispute in the present suit for eviction is with regard to the property gifted to Anaro Debi wife of Nathmal Nai. It is the case of the plaintiff that the defendants were tenants in the suit premises under Nathmal Nai as their landlord. However, Nathmal Nai by sale deed dated 27.07.69 sold the premises to Dhanna Lal Sharma who later on sold the same to original plaintiff (since deceased through L.R.) namely Gopi Krishna Neyogi. The present suit for eviction was filed by Gopi Krishna Neyogi alongwith Rukmani Devi as plaintiffs on the ground of personal necessity as well as default in payment of rent by the defendants. 4. The defendants on the other hand denied the relationship of landlord and tenant and set up their own title over the suit premises on the basis of their case that Nathmal Nai executed a Mahadnama on 06.05.69 in their favour agreeing to sell the suit premises to them and had also put the defendants in possession of the suit premises in part performance of the said 3 Patna High Court SA No.284 of 2011 (11) dt.24-04-2013 3 / 6 contract. It is further case of the defendants that as Nathmal Nai failed to execute the sale deed as agreed, the defendants filed T.S.No.60/71 praying for specific performance of contract against Nathmal Nai which was decreed ex parte. Thereafter, in execution of that decree Nathmal Nai was made to execute the sale deed in favour of defendants for the suit premises. The defendants have also alleged that the sale deed dated 27.07.69 in favour of Dhanna Lal Sharma by Nathmal Nai was a showee document on the basis of which no title was conferred upon Dhanna Lal Sharma . 5. The trial court after considering the pleadings and evidence of the parties decreed the suit. In appeal by the defendants, the appellate court below affirmed the judgment and decree of the trial court. However, the defendants filed S.A.No.24/01 which was allowed by judgment/order dated 22.01.10 by which the matter was remanded back to the appellate court below for hearing afresh in accordance with law. By the impugned judgment and decree the appellate court below has heard the appeal afresh and dismissed the same directing the defendant nos.1 and 2 to vacate the suit premises. 6. Mr. Sanjay Kumar Ghosarvey, the learned counsel for the appellants at the outset has brought to the notice of this court, the part of the judgment/order dated 22.01.10 in 4 Patna High Court SA No.284 of 2011 (11) dt.24-04-2013 4 / 6 S.A.No.24/01 and has submitted that this Court has directed the appellate court below to decide the issues of relationship of landlord and tenant as well as ground for eviction. On this basis it has been urged that the specific direction of this Court had not been followed by the appellate court below, and therefore, the impugned judgment is vitiated. Criticizing the impugned judgment further Mr. Sanjay Kumar Ghosarvey, the learned counsel for the appellants has argued that the courts below have failed to consider the validity of the sale deed dated 27.07.69, which has been alleged by the defendants to be a sham transaction conferring no title on the purchaser. It has been submitted that the original sale deed dated 27.07.69 executed by Nathmal Nai in favour of Dhanna Lal Sharma has been produced by the defendants in the suit which fact is sufficient to establish the contention of the defendants that the transaction in favour of Dhanna Lal Sharma was a bogus transaction. It has been thus canvassed on the basis of aforesaid submissions that substantial questions of law arise for consideration in this appeal. 7. From the perusal of the impugned judgments and after considering the submissions of the learned counsel for the appellants, it is manifest that the defendants have accepted them to be tenant of Nathmal Nai initially but they have claimed that their 5 Patna High Court SA No.284 of 2011 (11) dt.24-04-2013 5 / 6 status as a tenant had changed after the execution of the Mahdanama dated 06.05.69 by Nathmal Nai agreeing to sell the suit premises in their favour and put them in possession over the same. The defendants have also claimed that in pursuance to the decree for specific performance of contract, Nathmal Nai had executed the sale deed in their favour. However, from the evidence on record it has transpired that the decree for specific performance of contract which had been obtained by the defendants against Nathmal Nai had been subsequently set aside by the appellate court in appeal. In this view of the matter both the courts below have rightly held that the execution of the sale deed, in execution of the decree which had been subsequently set aside, will be of no consequence and no title can be claimed on that basis. Significantly the defendants have not denied this fact that the decree for specific performance of contract in their favour had been set aside in appeal, and thereafter, they had withdrawn their suit for specific performance of contract. In view of this finding, considered with the admitted position that the defendants are the tenants of Nathmal Nai, there is no escape from conclusion that there exists the relationship of landlord and tenant in between the plaintiffs and the defendants. It is not the case of the defendants that Nathmal Nai ever challenged or disputed the sale deed 6 Patna High Court SA No.284 of 2011 (11) dt.24-04-2013 6 / 6 executed by him in favour of Dhanna Lal Sharma. The production of the sale deed executed by Nathmal Nai in favour of Dhanna Lal Sharma will not confer the title of the suit premises upon the defendants and will not entitle them to question the transfer of his title by Nathmal Nai in favour of Dhanna Lal Sharma. 8. Admittedly, the defendants have not paid rent to Nathmal Nai or to the plaintiffs as they have been litigating the matter on the basis of title. In this view of the matter, the defendants are defaulter and both the courts below have rightly passed the decree of eviction against them. 9. In the ultimate eventuate, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V Nath, J)