Makhan Mahto & Ors v. Ram Sagar Mahto

The defendants appellants appellants have filed this second appeal against the Judgment and Decree dated 30.3.2012 passed by the learned 3rd Addl. District Judge Begusarai in title appeal No.43 of 2008 whereby the learned lower appellate Court dismissed the appeal and confirmed the Judgment and Decree dated 28.6.2008 passed by the learned Munsif, Begusarai in title suit No.5 of 1999.

3. The plaintiff filed the aforesaid suit for eviction of the defendant on the ground of default and personal necessity. According to the plaintiff, the house of the defendant which is adjacent to the suit house fell down in the rainy season in August, 1996, therefore, the defendant approached the plaintiff to let the house to defendant No.1 on rent @ Rs.150/- per month. The defendant paid the rent upto November, 1997 and did not pay the rent from the month of December, 1997 to April, 1999. The 2 Patna High Court SA No.266 of 2012 (8) dt.04-09-2013 defendant had initially approached the plaintiff to let the house on rent for a short period till the house of the defendant is repaired. The plaintiff also stated that the plaintiff required the suit premises for personal occupation.

4. The defendant filed contesting written statement alleging that in fact the suit property has been purchased by the defendant, i.e., the mother of the defendant in the year 1956 by registered sale deed ext. ‘A’ and A/1 and house is constructed on the suit plot being plot No.1066. The defendant denied the relationship of landlord and tenant between the parties and that bonafide requirement of the plaintiff. According to the defendant, the defendants are residing in the suit premises as owner thereof.

5. The trial Court after considering the evidences including the sale deed produced by the defendant recorded the finding that the sale deed, ext. ‘A’ and ‘A/1’ relates to plot No.1068 and plot No.1069 whereas the suit property stands on plot No.1066. The trial Court also recorded the finding that the defendant is defaulter and plaintiff required the suit premises for personal necessity. On appeal, the lower appellate Court also confirmed the said finding and the appeal was dismissed.

6. The learned counsel, Mr. Arun Kumar, appearing on behalf of the appellant submitted that both the Courts below have not considered the evidences properly and the sale deed produced by the defendant. According to the defendant, although the mother of the defendant No.1 purchased the suit plot No.1066 but by mistake in the sale deed, plot No.1068 and plot No.1069 have been mentioned. 3 Patna High Court SA No.266 of 2012 (8) dt.04-09-2013 The learned counsel further submitted that while decreeing the plaintiff’s suit for eviction on the ground of personal necessity, both the Courts below have not considered the Proviso to Section 11 Sub Section 1C of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. Therefore, the Judgment is vitiated.

7. From perusal of the Judgment of lower appellate Court, it appears that the lower appellate Court has considered the evidences oral and documentary and recorded the finding that the sale deed produced by the defendant is not with respect to the suit plot. Both the Courts below have recorded concurrently that the defendant has not paid the rent at the rate of Rs.150/- per month since December,

1997. Both the Courts below also concurrently recorded that the plaintiff required the suit premises bonafidely.

8. The submission of the learned counsel regarding proper appreciation of evidence is concerned, it may be mentioned that the Second Appellate Court cannot re-appreciate the evidence in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. Unless it is shown that the Judgment of the Courts below are perverse, the finding of fact cannot be interfered with. In the present case, the finding regarding existence of relationship of landlord and tenant between the parties and that the plaintiffs required the suit premises reasonably and in good faith, both are finding of fact.

9. In the case of Guru Bachan Kaur and Ors. and Shaligram 2010 (15) SCC 530, the Hon’ble Supreme Court at paragraph 10 has held that it is settled law that in exercise of power under Section100 of the Code of Civil Procedure, the High Court 4 Patna High Court SA No.266 of 2012 (8) dt.04-09-2013 cannot interfere with the findings of fact recorded by the first appellate Court which is final Court of fact unless the same is found to be perverse. It appears that in that case also the lower appellate Court on the basis of the evidences recorded the finding that there was relationship of landlord and tenant between the parties, however, the High Court set aside the finding of the lower appellate Court. The Hon’ble Supreme Court set side the Judgment of the High Court and restored the finding recorded by the lower appellate Court. So far the submission of the learned counsel for the appellant that the Courts below have not considered the partial eviction is concerned, it may be mentioned here that the suit had been decreed not only on the ground of personal necessity but also on the ground of default. Therefore, the consideration of partial eviction as provided under Section 11 sub Section 1C is not necessary.

10. In view of the above facts and circumstances of the case, I find that none of the points raised by learned counsel for the appellants are substantial question of law. Both the Courts below have concurrently found that there is relationship of landlord and tenant between the parties and that the defendant had defaulted in payment of rent and plaintiff requires the suit premises for personal occupation. I, therefore, find no substantial question of law involved in this Second Appeal. Accordingly, this Second Appeal is dismissed at the admission stage itself. Sanjeev/- (Mungeshwar Sahoo, J)