Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.263 of 2011 ====================================================== 1. Mainu Nisa wife of late Hamid Mian. 2. Shabnam daughter of late Hamid Mian. 3. Manjoor Alam son of late Hamid Mian. 4. Noor Alam son of late Hamid Mian. 5. Firoj Alam son of late Hamid Mian. 6. Basir daughter of late Hamid Mian. 7. Roshan daughter of late Hamid Mian. 8. Juganu daughter of late Hamid Mian. 9. Bania daughter of late Hamid Mian. 10. Guriya daughter of late Hamid Mian all resident of village Kali Bazar Ward No. 9, P,S. Araria, District-Araria. Versus .... .... Appellant/s 1. Sukhdeo Mishra son of Umesh Kant Mishra. 2. Bijay Kumar Mishra son of Umesh Kant Mishra. 3. Ashok Kumar Mishra son of Umesh Kant Mishra. 4. Subodh Kumar son of Umesh Kant Mishra. 5. Girjanand Mishra son of late Basudeo Mishra. 6. Navkant Mishra son of late Sarab Lal Mishra. 7. Kalikant Mishra son of late Rudranand Mishra. 8. Arun Kumar Mishra son of late Laxmi Kant Mishra. 9. Anil Kumar Mishra son of late Laxmi Kant Mishra, all resident of Araria, ward No. 9, P.S. Araria, District-Araria. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Chandra Mauli Prasad Sing For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 7 27-02-2013 Heard the learned counsel for the appellants. 2. The defendants are the appellants in this second Patna High Court SA No.263 of 2011 (7) dt.27-02-2013 2 appeal against the judgment of reversal by which the appellate court below has set aside the dismissal of the suit and allowed the appeal granting the decree as prayed.
Legal Reasoning
3. The plaintiffs filed the suit for eviction of the defendant (since deceased, through L.R.) from the suit premises either under the provision of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 or on the basis of the general title of the plaintiffs. 4. The parties to this appeal shall, hereinafter, be referred by the position held by them in the suit. 5. The facts are not in dispute that the suit premises is the raiyati ancestral land of the plaintiffs and has been recorded in the survey khatiyan in the sikmi khata in the name of Juman Mian but the raiyati khata has been prepared in the names of the ancestors of the plaintiffs. It is case of the plaintiffs that Juman Mian died leaving behind his widow and a son Jangli Mian. Later on, the widow of Juman Mian died and his son Jangli Mian also died 7 or 8 years back leaving behind only his widow who shifted to her ‘Naihar’ after handing over the vacant possession of the suit premises to the plaintiffs. In due course, she also died in her ‘Naihar’. It is further case of the plaintiffs that they let out the suit premises in the month of January 1984 to the defendant on the Patna High Court SA No.263 of 2011 (7) dt.27-02-2013 3 monthly rental of Rs. 50/-. The defendant was paying the rent to the plaintiffs but later on he has stopped paying the rent from April 1991. The suit has therefore been filed for eviction of the defendant on the ground of default in payment of rent and also on the ground of personal necessity. Later on by amendment, the plaintiffs have also prayed the relief of eviction on the basis of general title. 6. The defendant, in his turn, has denied the relationship of landlord and tenant in between him and the plaintiffs and come out with the case that he is in possession of the suit premises as under -raiyat (sikmidar) and has also acquired title over the same by adverse possession. It is the specific case of the defendant that Jangli Mian and his wife being issueless, took in adoption the daughter of the defendant, as the wife of the defendant was the own sister of the wife of Jangli Mian and as such the defendant with his family members is in possession of the suit premises as an heir of Jangli Mian. 7. The trial court, on consideration of the pleadings and evidence of the parties, returned the finding that the plaintiffs had failed to establish the fact of handing over of vacant possession of the suit premises by the widow of Jangli Mian and also failed to establish the fact of letting out the suit premises to the defendant Patna High Court SA No.263 of 2011 (7) dt.27-02-2013 4 on rent. The suit was therefore dismissed. 8. The appellate court, however, on reappraisal of evidence, has come to the conclusion that the defendant has failed to establish his possession over the suit premises either as an heir of Jangli Mian or his wife and as such his status with regard to the suit premises is only of a trespasser or a licensee. It has been further found that the defendant has failed to establish his title over the suit premises on the basis of adverse possession. The appeal has been allowed decreeing the suit granting the relief as prayed by the plaintiffs. 9. The learned counsel for the appellants has submitted that the appellate court below has wrongly decreed the suit even in absence of the mandatory finding of relationship of landlord and tenant in between the plaintiffs and the defendant. It has been urged that admittedly the suit premises was in possession Juman Main as sikmidar for residential purposes but the plaintiffs have failed to establish by cogent evidence the case of surrender of possession by the heirs of Juman Mian as set up by them and as such no decree should have been passed in favour of the plaintiffs. It has been further submitted that appellate court below has ignored the material evidence which establish that the defendant is related to Juman Mian and has been in possession of the suit Patna High Court SA No.263 of 2011 (7) dt.27-02-2013 5 premises without interruption. It has been also argued that the plaintiffs have lost their title over the suit premises long ago and the defendant has perfected his title over the suit by remaining in adverse possession over the same. 10. It is manifest from the facts as enumerated in the impugned judgment that the plaintiffs are the original title holder of the suit premises and had created a right in favour of Juman Mian as under raiyat over the same. It has not been disputed that Juman Mian had executed a Kabuliat Patta dated 27.04.1951 in favaour of the plaintiffs recognizing his status as under raiyat over the suit premises. The defendant has denied his possession over the suit premises as tenant of the plaintiffs and has claimed himself to be in rightful possession over the same as an heir of Juman Mian. The appellate court below has taken into notice that the issue of relationship of landlord and tenant has not been framed by the trial court but nonetheless as the plaintiff has sought the relief for eviction on the basis of title, the claim of possession of the defendant over the suit premises either by inheriting the sikmi right or on the basis of title by adverse possession has been examined by the courts below. 11. The specific case of the defendant is that his wife is related to the wife of Jangli Mian, and has claimed that his Patna High Court SA No.263 of 2011 (7) dt.27-02-2013 6 daughter has been taken in adoption by Jangli Mian and his wife Fatima. However, it transpires from the judgments of both the courts below that no evidence has been led by the defendant to establish the fact of adoption of his daughter by Jangli Mian and his wife. The appellate court below has rightly come to the conclusion that even after accepting the case of adoptionof his daughter by Jangali Mian as propounded by the defendant, it would be the adopted child who would be the heir of Jangli Mian and his wife and not the defendant. Moreover, neither the pleading of the defendant nor the deposition of the witnesses examined on behalf of the defendant has disclosed the name of the said adopted child or the details of the fact of adoption. The defendant has thus failed to plead the necessary facts regarding the adoption of his daughter by Jangali Mian and his wife Fatma and has led no cogent evidence to establish the said fact. The defendant has also failed to establish the facts entitling him to inherit the sikmi right of Jangali Mian as his heir. Therefore, I find no illegality in the conclusion of the appellate court below that the defendant is not the heir of the sikmi raiyat Jangali Mian and his wife Fatima and therefore is not entitled to inherit their sikmi rights and be in possession in the suit premises in that capacity. 12. The defendant has also claimed to be in adverse Patna High Court SA No.263 of 2011 (7) dt.27-02-2013 7 possession over the suit premises. It will be pertinent to notice here that the defendant in his pleading has not disclosed the date of death of Jangli Mian or his wife Fatma. However, from the municipal survey khatiyan (Ext.D), which was prepared in the year 1983-84, it appears that the name of Jangli Mian has been recorded therein. The possession of Jangli Mian has been recorded therein as Sikmidar of the suit premises. The defendant has been examined in the suit on 23.06.1995 and he has stated in his deposition that Juman Mian died about 7-8 years ago and his wife died about 5 years ago. Thus, it becomes an admitted fact that Jangli Mian and his wife Fatima were alive within 12 years of the filing of the suit in the year 1991. In this view of the matter, the claim of the defendant to be adverse possession over the suit premises cannot be sustained. Moreover, the defendant has also failed to specifically plead the ingredients of adverse possession and the learned counsel for the appellants has also not been successful in establishing the fact as to how during the life time of Jangli Mian and his widow the defendant could have exercised hostile possession over the suit premises against the plaintiffs. The defendant’s claim of adverse possession has therefore been rightly disbelieved by the appellate court below. 13. The plaintiffs have also claimed the eviction of the Patna High Court SA No.263 of 2011 (7) dt.27-02-2013 8 defendant on the basis of their general title. Thus even if the plaintiffs have failed to establish the relationship of landlord and tenant, still in the facts and circumstances of the case when the defendant has failed to establish the legality of his possession over the suit premises, a decree for ejectment of the defendant from the suit premises can be granted. The principle, laid down by a
Legal Reasoning
division bench of this court in the case of Kasturi Devi Vs. Shripal Singh, A.I.R. 1954 Pat. 128, to the effect that the court can give the plaintiff a decree for ejectment on the basis of title in a suit for ejectment where the defendant failed to establish his title as set up by him in denial of the claim of the tenancy by the plaintiff, is fully attracted and the plaintiffs have been correctly held to be entitled to the decree as prayed in the suit. 14. In the ultimate eventuate, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (Vijayendra Nath, J)