Civil Suit No. 7 of 2004 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.24 of 2015 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 28.11.2014 & 06.12.2014 respectively passed by the learned Additional District Judge, Jharsuguda, in R.F.A. No.1 of 2008 confirming the judgment and decree dated 07.11.2007 and 17.11.2007 respectively passed by the learned Civil Judge, Junior Division, Jharsuguda, in Civil Suit No.7 of 2004. ---- Har Narayan Soni & Others …. Appellants -versus- Biharilal Tibrewal & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.G.K. Acharya, Senior Advocate For Respondents - Mr.S. Udgata Advocate for R.1. Mr.A.K. Budhi, Advocate for R.2 to 5 CORAM: JUSTICE D.DASH Date of Hearing :03.01.2023 : Date of Judgment:27.01.2023 D.Dash,J. The Appellants, in this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 28.11.2014 & 06.12.2014 R.S.A. No.24 of 2015 Page 1 of 13 {{ 2 }} respectively passed by the learned Additional District Judge, Jharsuguda, in R.F.A. No.1 of 2008. By the same, the judgment and decree dated 07.11.2007 and 17.11.2007 respectively passed by the learned Civil Judge, Junior Division, Jharsuguda, in Civil Suit No.7 of 2004 decreeing the suit
Legal Reasoning
filed by the Respondent No.1, as the Plaintiff, directing the Defendants to give delivery of vacant possession of the suit house as described in the plaint schedule to the Respondent No.1 (Plaintiff) by paying the arrear house rent and damage, as stated thereunder, have been confirmed. The Respondent No.1, as the Plaintiff, had filed the suit against one Mst. Sheopyari Soni arraigning her as the Defendant No.1 seeking the relief of eviction, recovery of arrear house rent and damage. During pendency of the suit, the sole Defendant, having died, these Appellants, as her legal representatives, have contested the suit and being aggrieved by the judgment and decree passed by the Trial Court, had carried the First Appeal. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. Plaintiff’s Case:- He is the original owner and landlord of the house and premises as described in the plaint schedule and the Defendants was a monthly tenant under him. It is stated that the Plaintiff had purchased the suit property from one Kapur Chand Jain and his sons by registered sale deed dated 20.05.1974 for a consideration of Rs.8000/- (Rupees Eight Thousand). The property, having been R.S.A. No.24 of 2015 Page 2 of 13 {{ 3 }} purchased, was mutated in his name in the holding record of Jharsuguda Municipality and he was paying holding tax for the said house as its owner. The holding number of the suit house was changed in the year 1978-79. He, having received demand notice for payment of arrear holding tax, when had been to make the payment, he could learn that the Defendant has paid the said sum towards the arrear holding tax for four years in his name. So, it was detected by the Plaintiff that such payment by the Defendant was with an oblique motive for creating the evidence in her favour. It has been further pleaded that the Plaintiff had applied for lease of Nazul land under Plot No.451 over which the suit house stands. The application, being made before the Tahasildar, Jharsuguda; Nazul Case No.7/4-7 of 1978 was going on. The Defendant had filed her objection in the said Nazul case. She further admitted her tenancy in respect of the said suit house. It has been further pleaded that the mother of the original Defendant, namely, Tirthibati Sonar @ Soni @ Sunarin was the original tenant in respect of the suit house under the previous owner, i.e., late Kapur Chand Jain from whom the Plaintiff purchased the property on 20.05.1974. The Plaintiff, having purchased the property, informed the mother of the Defendant about his purchase and then the Defendant and her mother, who were staying in the said house, requested the Plaintiff to pay the rent at the old rate per month to him. Said Tirthibai had also received a notice after such sale form the erstwhile owner-cum-landlord intimating the said sale whereunder she had called upon the Defendant’s mother to pay the monthly rent in respect of the suit house to the Plaintiff. It has been further pleaded that though late Tirthibai was initially paying the rent to the Plaintiff personally, sometime later, R.S.A. No.24 of 2015 Page 3 of 13 {{ 4 }} she started remitting the rent through Money Orders and it was so done for the month of July, August and September of the year 1975. However, thereafter, the payment of rent was discontinued. The Plaintiff although demanded payment of arrear rent from the Defendant’s mother, she avoided to pay the same. The Plaintiff since faced various problems in various fronts including in his business for a long time, he could not immediately initiate legal action. The Defendant, being the daughter of the original tenant Tirthibai, was living in the suit house and she, on the death of Tirthibai, being the successor of Tirthibai, came to occupy the suit house as such and as it was by her mother. She also requested the Plaintiff to treat her as a tenant, which the Plaintiff accepted. When the matter stood thus, for the default of the Defendant in paying the rent, the Plaintiff issued the demand notice through his counsel demanding payment of rent for 332 months @ Rs.9/- (Rupees Nine) per month. The Defendant then, having received the notice, replied through her Advocate on 09.07.2003 refusing to pay the arrear rent and current rent to the Plaintiff. So, the Plaintiff was compelled to send a notice under section 106 of the Transfer of Property Act, 1882 terminating the tenancy which the Defendant refused to receive. The tenancy thereudner had been terminated with effect from 01.10.2003. The Defendant, having not responded to the said notice and having knowingly refused to receive the said notice, the Plaintiff filed the suit. 4. The Defendant’s case, in the written statement, is that the Plaintiff had purchased the suit house illegally without obtaining prior permission of the Collector, Sambalpur as the land, over which the house situates, was a Nazul land, which had been leased out in Page 4 of 13 R.S.A. No.24 of 2015 {{ 5 }} favour of late Kapur Chand Jain. It is stated that the period of lease of said Nazul land in favour of Kapur Chand Jain, having lapsed, the lease too was not renewed and, therefore, the Plaintiff cannot claim himself to have stepped into the shoes of the landlord in respect of the suit house and in so far as the occupation of the same by the Defendant is concerned, she cannot be said to be as of a tenant under the Plaintiff. It is further stated that on the date of sale, Kapur Chand Jain, the original leassee had no right, title and interest and no right/authority to transfer the suit land in favour of the Plaintiff without being so permitted by the Collector. In the absence of any prior permission of the Collector, when the original leassee Kapur Chand Jain thus was having no right/authority to transfer the suit land, the said sale made by Kapur Chand is voidable. It is stated that now the land, being a piece of Government land, the claim, as advanced by the Plaintiff over the same is baseless and merely by paying holding tax in respect of the house standing over the suit land to the Municipality, the Plaintiff’s claim and that he has the right, title and interest over the suit land is baseless. It is further stated that when the Plaintiff came to know that the transaction made in respect of the suit land is illegal, she had stopped payment of holding tax and then a demand notice, being raised upon the deceased-mother of the Defendnat, she had paid the holding tax for the year 2003-04. The Defendants stated to have been in occupation of the suit house for about thirty years till the suit without any demand of payment of rent. It is further stated that the Plaintiff has no right/claim over the suit house. The Plaintiff is said to have cunningly deposited the holding tax to establish himself as the owner of the suit house. The deceased-mother of the Defendant had filed an R.S.A. No.24 of 2015 Page 5 of 13 {{ 6 }} objection before the Authority for resettling the suit land in her name and re-allotment of the same in her favour after due resumption of the suit land. Accordingly, an order was passed by the Competent Authority inviting show cause from the Plaintiff. The Plaintiff failed to do so. It has also been pleaded that the mother of the Defendant was a housewife, who only knew to put her signature in Hindi and was having no knowledge about the objection filed, which was filed by another person. No rent towards the occupation of the said house was ever paid by the mother of the Defendants. The Defendants state that they are not the tenants under the Plaintiff and as such, are not entitled to pay the house rent to him. They state that although their grandmother was the tenant under Kapur Chand Jain, however, said Kapur Chand Jain, having sold the suit land in the year 1974 without giving any intimation to the grandmother of the Defendant and others, who are residing in the house standing over the suit land; the tenancy ceased since then. It is further stated that since a notice was received from Kapur Chand Jain to pay the monthly rent to the Plaintiff, Tirthibai had paid the rent to the Plaintiff and in the last part of life of Tirthibai, she refused to take house rent from her on the ground that she had not purchased the house legally. So, Trithibai sent the house rent by way of Money Orders to the Plaintiff and said money orders have been received by the Plaintiff and some have been refused. It has been said that when Tirthibai was bed-ridden, the Plaintiff had come to her house and told that she should not pay house rent to him as she was not a tenant under him. Since then the Plaintiff has neither claimed rent nor Tirthibai or her legal heirs have paid rents towards the suit house to the Plaintiff. It is said that they are residing in the suit house for more than thirty years by the time of R.S.A. No.24 of 2015 Page 6 of 13 {{ 7 }} suit. After Tirthibai, the deceased-Defendant was residing along with her major sons, daughters and other family members. So, the question of creation of tenancy right in between the Plaintiff and the Defendant does not arise. They say that no such notice under the T.P. Act was ever issued. It is also stated twenty-six years prior to the suit, the house had collapsed in the year 1981 on account of heavy rain and that has been reconstructed by the deceased-Defendant and her sons and subsequently, the Defendant has also gone for some add-on constructions to the said house and have been living therein. Some remodeling are said to have been made after obtaining permission from the Municipality Authority when the Plaintiff too had not raised any objection though it was within his knowledge. 5. The Defendants have also set-up a counter claim reiterating the facts narrated in the written statement. They have prayed that they be declared to be having the right, title and interest over the suit land as to have been so acquired by virtue of adverse possession. The Plaintiff, in his written statement to the counter claim filed by the Defendant, have seriously objected to the prayer made therein and has reiterated all those facts, which have been pleaded in the plaint. 6. On the above rival pleadings, the Trial Court in total has framed sixteen issues. The crucial issues with regard to the relationship of tenant and landlord between the Plaintiff and Defendant, as claimed by the Plaintiff and the validity of the registered sale deed dated 20.05.1974 being taken up together decision, upon examination of the evidence and their evaluation, the answers have been recorded in favour of the Plaintiff and against the Defendants. Having held, as above, the Trial Court, examining the R.S.A. No.24 of 2015 Page 7 of 13 {{ 8 }} evidence when has found the tenancy to have been duly terminated, has finally decreed the suit. The First Appellate Court, being moved by the aggrieved Defendants, that move has also failed. Hence, the present Second Appeal. 7. The Appeal has been admitted to answer the following substantial question of law:- “Whether the Courts below are right in holding that no permission was required before execution of the sale deed by the lessee in favour of the present Respondent No.1 (Plaintiff) when an Objection Case was pending before the Collector with regard to the renewal of the lease and grant of fresh lease in favour of the Defendants and whether under the circumstance the Courts below have erred in holding that the Plaintiff being the landlord has the right to evict the Defendant by terminating the tenancy?” 8.
Legal Reasoning
Learned Senior Counsel for the Appellants submitted that the Plaintiff has filed the suit for eviction of the Defendants basing upon his title said to have been derived by virtue of sale deed dated 20.05.1974 and that very sale deed being in contravention of law and having been made by the leassee when the lease in question had already expired and no renewal had been granted on the date of sale, the Courts below, having held that permission was not mandatory for sale of the Nazul land, which lease had expired, have committed grave error. He further submitted when such was the disputed issue of title over the property in question, the Courts below ought not to have allowed the suit for eviction of the Defendant. He further submitted that the Courts below having failed to appreciate the admitted facts and circumstances of the case, have erroneously held R.S.A. No.24 of 2015 Page 8 of 13 {{ 9 }} that there being the relationship of landlord and tenant between the Plaintiff and original Defendant, the Plaintiff is entitled to the decree for eviction. 9. Learned counsel for the Respondent, on the other hand, submitted that here the transaction in respect of the land taking place between the Plaintiff and Kapur Chand jain, his vendor having been brought to the notice of late Tirthibai orally and by a notice when Tirthibai has accepted the Plaintiff as her landlord and has gone to pay rent for some months and she had never denied such relationship of landlord and tenant or the right of the Plaintiff to collect the rent from her as the landlord, the Defendants are not estopped from questioning the title of the landlord in view of the provisions contained in Section 116 of the Indian Evidence Act. He further submitted that when tenant pays rent to the assignee or vendee in relation to the tenanted property, then it results in creation of a attornment between the parties, which in turn estopps the tenant to challenge the derivative title of the assignee/vendee in the proceeding for eviction based on said relationship so created. 10. Keeping in view the submissions made, in order to find out the answer to the substantial question of law, I have carefully read the judgments passed by the Courts below. The pleadings as well as the evidence both oral and documentary tendered by the parties have been travelled through. 11. In the instant case, the suit is for eviction of the Defendants in further claiming arrear house rent and damage. R.S.A. No.24 of 2015 Page 9 of 13 {{ 10 }} The Plaintiff’s case is that he is the owner and landlord of the house in question, which was in occupation of the original Defendant as a monthly tenant and now with the substituted Defendants. He has stated that the said property had been purchased by him from one Kapur Chand Jain and his sons by registered sale deed dated 20.05.1974 for a consideration of Rs.8,000/- and subsequently, the holding has been mutated in the municipal record, he is paying the holding tax. The next important pleading is that the mother of the original Defendant, namely, Tirthibati Sonar @ Soni @ Sunarin was the tenant in respect of the suit house under the erstwhile owner Kapur Chand Jain. The Plaintiff when purchased the property on 20.05.1974, it was orally so intimated to Tirthibati Sonar @ Soni @ Sunarin and the Defendant, who was staying with her in the said house. It is also stated that the erstwhile landlord Kapur Chand jain had sent a notice to Tirthibati Sonar @ Soni @ Sunarin to pay the monthly rent in respect of the occupation of the suit house to the Plaintiff, which too was within the knowledge of the Defendant. Tirthibati Sonar @ Soni @ Sunarin was paying the rent to the Plaintiff personally and at a later stage, she remitted the rent through Money Orders whereafter the payment was mischievously discontinued. The Defendants themselves have proved the counter foil of the Money Order receipts containing the signature of the Plaintiff examined as P.W.1 and that to through during the examination of P.W.1 when he was so deposing. This Plaintiff (P.W.1) has denied to have refused to receive the rent sent by Tirthiabi through Money Order. This three documents (Exts.A, B & C) would reveal that Tirthibai had sent a sum of Rs.9/- R.S.A. No.24 of 2015 Page 10 of 13 {{ 11 }} to the Plaintiff on each occasion, i.e., 28.7.1975, 15.09.1975 & 09.10.1975; receipts of which have been acknowledged by the Plaintiff. The Defendants admit that Tirthibai sent rent to the Plaintiff by Money Order but thereafter the Plaintiff refused to receive the rent as transaction was illegal which of course have been denied by the Plaintiff (P.W.1). The reply to the notice of the Plaintiff given by the deceased-Defendant through her Advocate is Ext.9. The facts stated in the Paragraph-3 of that reply is very important. It says that Tirthibai approached the Plaintiff to receive the house rent which he refused to receive and, therefore, Tirthibai sent house rent through Money Orders, which also the Plaintiff refused to receive. These Defendants have omitted to plead all these facts in clear terms in their written statement. At one stage in the reply to the notice when it is said that the Plaintiff refused to receive the rent, the Defendants have given a complete go-bye to the said averments in eliciting from P.W.1 that he received the rent sent by Tirthibai for three months and then refused to receive. At a later point of time, when the notice was sent by the Plaintiff terminating the tenancy of the Defendant under section 106 of the T.P. Act, the reply has come that the original Defendant was not the tenant under the Plaintiff and it has been stated that the Plaintiff, having remained silent for twenty-eight years, the Defendants have remodeled the house and have undertaken for repairing works with the permission of Municipality Authority and in that reply for the first time, the relationship of landlord and tenant has been denied. However, it is seen from Ext.G, the objection given by the Defendants in Nazul Case No.7/4-7 of 1978 that he has admitted to have taken the house on rent from Kapur Chand Jain and was paying the rent to him R.S.A. No.24 of 2015 Page 11 of 13 {{ 12 }} regularly. In that objection, she has prayed for settlement of the Nazul land in her favour. 12. The instant suit being one for eviction founded upon the relationship of landlord and tenant between the Plaintiff and deceased-Defendant; the question of title in respect of the suit property is redundant within the domain and the frame of the suit. It has also been the settled position that in such a suit, the Court is called upon to rule upon the relationship of landlord and tenant, if it is so disputed and while deciding that in favour of the landlord, it is not imperative for the Court to decide that the landlord has the title over the property in question. The settled position of law is that even a person having no title over the property in question can very well stand as the landlord in relation to a person, who is in occupation of the property in question being so inducted therein as a tenant. 13. In view of the evidence, as already discussed, when this Court finds that the concurrent finding of the Courts below in answering the issue of said relationship of landlord and tenant in favour of such relationship does not suffer from the vice of perversity and the Defendants, under the circumstance, when are estopped from questioning the title of the Plaintiff, the Courts below, in my considered view, have committed no error in decreeing the suit. Even without further proceeding to touch upon the answer to the issue relating to the title over the property whether it rests with the Plaintiff or not in view of the sale made without prior permission when the lease was not renewed, this Court is led to confirm the judgments and decrees passed by the Courts below. R.S.A. No.24 of 2015 Page 12 of 13 {{ 13 }} The answer to the substantial question is returned accordingly. 14. In the result, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash) Judge True Copy A.R.-Cum-Sr. Secy Basu R.S.A. No.24 of 2015 Page 13 of 13