Shashi Shekhar Gupta & Ors. v. Bibhuti Bhusan Jha

III, Munger in Title Appeal No.14 of 2008 affirming the judgment and decree dated 08.02.2008 passed by Munsif 2nd, Munger in Title Suit No.125 of 1975 dismissing the suit for eviction of the 2 Patna High Court SA No.520 of 2010 (5) dt.11-01-2013 defendant from the suit property or alternatively for declaration of title of the plaintiffs over the suit house and recovery of possession of the same from the defendant as he is a tresspasser.

3. There is no dispute that the suit house originally belonged to Charu Bala Devi. The original plaintiff(since deceased, through L.R.) who was her daughter, claimed title over the suit house on the basis of a sale deed executed in her favour in the year 1967, which is marked as Exhibit-2 in the suit. The defendant on the other hand has based his title over the suit house on the ground of an oral gift from Charu Bala Devi on 04.03.1962 to his father-in-law who was „Guru‟ of Charu Bala Devi and has further asserted that the fact of the oral gift was recognized by Charu Bala Devi by executing a document by way of a memorandum in the year 1964. The plaintiff has claimed the defendant to be tenant in the suit house from 1969 where as the defendant has denied the relationship of landlord and tenant and claimed possession over the suit house on the basis of the oral gift or in the alternative on the basis of adverse possession.

4. Both the courts below, after scrutiny of the evidence of the parties, have come to the conclusion that the plaintiff has failed to establish the relationship of landlord and tenant as claimed and has also failed to establish her title on the basis of 3 Patna High Court SA No.520 of 2010 (5) dt.11-01-2013 purchase of the suit house.

5. Learned counsel for the appellant has submitted that the courts below have ignored the relevant material evidence on record and have wrongly non-suited the plaintiff. It has been urged that no title can validly pass to the defendant on the basis of the alleged oral gift and even there was no evidence to corroborate the said fact of oral gift. It has further been contended that the registered sale deed in favour of the plaintiff has got the presumption of validity and on that basis the plaintiff‟s title should have been upheld by the courts below. Learned counsel has also placed the substantial questions of law as formulated in the memo of appeal for consideration in this second appeal.

6. Upon the perusal of the impugned judgments of the courts below and after consideration of the submissions of the learned counsel for the parties it transpires that originally the plaintiff had filed the suit for eviction simpliciter in the year 1975 claiming that the defendant had been inducted as tenant in the suit house in 1969 on the rent of Rs. 65/- per month but from 1970 onwards he failed to pay the rent and had thereby become liable for eviction on the ground of default in payment of rent. The defendant filed his written statement denying the relationship of landlord and tenant and set up his title over the suit house on the 4 Patna High Court SA No.520 of 2010 (5) dt.11-01-2013 basis of oral gift on 04.03.62 by the admitted owner Charu Bala Devi to the father-in-law of the defendant who was her Guru as “Guru Dakshina” and since then claimed to be continuing in possession over the suit house. The defendant also claimed title over the suit house on the basis of adverse possession.

7. The plaintiff sought and was allowed to make amendment in the plaint on 05.08.1989 by adding the relief that in case the relationship of landlord and tenant was not established, the title of the plaintiff be declared and the defendant be declared as trespasser and thereafter recovery of possession be directed.

8. The plaintiff and her witnesses have accepted in their deposition that there was no Kiraynama to establish the tenancy of the defendant. However in order to establish the payment of rent, two receipts have been adduced in evidence as Ext.1 and Ext.1/A. Both the courts below have refused to rely upon those receipts as they did not bear the signatures of either the plaintiff as landlord or the defendant as tenant which fact is also accepted in deposition by the P.W.2 who is son of the plaintiff. As no other cogent evidence was led on behalf of the plaintiff to establish the tenancy, the courts below have come to the conclusion that there is no relationship of landlord and tenant in between the plaintiff and the defendant. 5 Patna High Court SA No.520 of 2010 (5) dt.11-01-2013

9. In order to establish her title over the suit house, the plaintiff has relied upon the sale deed dated 10.12.67(Ext.2) executed by the admitted owner Charu Bala Devi who was also the mother of the plaintiff. The defendant has assailed the sale deed as forged, fabricated and manufactured document. The sale deed (Ext.2) has been proved by P.W.5 who is grandson of the vendor Charu Bala Devi. He has accepted in his deposition that the L.T.I of Charu Bala Devi on the sale deed (Ext.2) was not given before the registering authority. He has also expressed his inability to state that his signature on the sale deed was verified by the registering authority. The attesting witnesses on the sale deed (Ext.2) as well as the scribe were also not examined by the plaintiff. The learned counsel for the appellant, at this juncture, has put emphasis that the burden of proof lay upon the defendant to establish the invalidity of the sale deed (Ext.2) which he failed but this submission has no force in view of the fact that both sides have led their evidence and thereafter it is the appreciation of evidence which matters and not the question of burden of proof. Both the courts below have found that the plaintiff did not get her name mutated either in Register II or in the municipality on the basis of the sale deed with regard to the suit house whereas the defendant has produced in evidence the orders of mutation and 6 Patna High Court SA No.520 of 2010 (5) dt.11-01-2013 rent receipts in his favour by the revenue authority and municipal authorities in support of his title and possession over the suit house. After scrutiny of the oral and documentary evidence of the parties, the conclusion has been arrived by both the courts below that the plaintiff has failed to establish her title on the basis of the sale deed. No perversity in the said finding could be established on behalf of the appellant during the course of argument.

10. Another aspect of this case which has emerged during the course of hearing and taken notice by the appellate court in para 44 of the judgment is with regard to the bar of limitation. The plaintiff has accepted the defendant to be in possession of the suit house, though as tenant, from 1969. The suit has been filed in the year 1975 for eviction of the defendant on the ground of default in payment of rent. The defendant in his written statement, has claimed title and possession over the suit house from 04.03.62 on the basis of oral gift followed by a memorandum (Ext.A) in the year 1964 executed by the original owner Charu Bala Devi in recognition of the oral gift. The plaintiff has made amendment in the plaint in 1989 seeking declaration of her title and for ejectment of defendant from the suit house alleging him to be a trespasser. In this view of the matter, after the failure of the plaintiff to establish the relationship of landlord and tenant, as concurrently held by 7 Patna High Court SA No.520 of 2010 (5) dt.11-01-2013 both the courts below, and in absence of any other case by the plaintiff claiming the defendant‟s possession over the suit house as permissive from 1969, the relief for recovery of possession from the defendant as trespasser is definitely barred by limitation. Even after accepting the title of the plaintiff over the suit house on the basis of the sale deed (Ext.2), it is plain and patent that the filing of the suit for eviction against the defendant as tenant would not stop the running of the period of limitation for recovery of possession from him as trespasser, on the basis of title in the facts as mentioned above. As such the alternative relief for declaration of title and recovery of possession as made by the plaintiff is held to be barred by limitation.

11. For the aforesaid premised reasons, it is held that both the courts below have committed no illegality in dismissing the suit of the plaintiff. There is, thus, no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)