Patna High Court
Kashi Choudhary vs Mujataba Hassan And Anr. on 4 September, 1981
Equivalent citations: AIR1982PAT42, 1982(30)BLJR28, AIR 1982 PATNA 42, (1982) 1 CIVLJ 176, 1982 BLJR 28, 1981 BBCJ 803, (1981) BLJ 679
JUDGMENT S. Ali Ahamad, J.
1. This appeal by the defendant arises out of a suit filed by the plaintiff-respondents for a decree of eviction of the appellant and also for realisation of arrears of rent amounting to Rs. 925/- for the period from 1-5-1970 to 8-8-1973 at the rate of Rs. 25/- per month in respect of the suit house.
2. Shortly stated, the case of the plaintiff respondents was that the land over which the suit house stands belonged to one Mohammad Noor. The plaintiffs took settlement from Mohammad Noor and constructed a house over it. Thereafter, it is said, the plaintiffs gave the suit house on rent to the defendant. The defendant defaulted in payment of rent and, therefore, the suit was filed for the reliefs already mentioned earlier.
3. The defendant appeared and contested the suit. According to him, the house did not belong to the plaintiffs; rather it belonged to him. As such according to the defendant, there was no relationship of landlord and tenant between them. According to the defendant, therefore, the plaintiffs were neither entitled to a decree for eviction nor for realisation of the arrears of rent amounting to Rs. 925/-.
4. Several issues were framed. One of the issues was as to whether the suit house belonged to the plaintiffs or to the defendant. The trial Court on an appreciation of the evidence on record came to the conclusion that the suit house belonged to the plaintiffs. It also held that the plaintiffs gave the suit house on rent to the defendant and the defendant did not pay the rent as stipulated. It, therefore, decreed the suit in full. On appeal by the defendant, the lower appellate court upheld the finding recorded by the trial Court that the plaintiffs were the owners of the house. It, however, did not agree with the trial Court that there was a relationship of landlord and tenant between the parties, According to it, the appellant was only a licensee. On these findings, the lower appellate Court maintained the decree for eviction, but set aside the decree for realisation of Rs. 925/- being the rent from 1-5-1970 to 8-8-1973. It, however, granted a decree for damages for use and occupation of the suit house at the rate of 0-75 paise per day with effect from the day the decree was passed by the trial court.
5. The appellant in this appeal has challenged the decree for eviction. According to the learned counsel the lower appellate Court having held that there was no relationship of landlord and tenant between the parties, acted illegally in passing a decree for ejectment after recording a finding that the appellant was a licensee. According to the learned counsel, it was neither the evidence of the defendant nor of the plaintiffs that the defendant was a licensee. As such, according to the learned counsel, the Court had no jurisdiction to make out a third case. Further, learned counsel urged that the decree for eviction was sought on the greound that the defendant was a tenant and had defaulted in payment of rent Since that was not proved, the suit had to be dismissed. In that connection learned counsel referred to the decision in Abdul Latif v. Mahadeo Lal (AIR 1976 Pat 229). In that case, Madan Mohan Prasad, J., held that in a suit for permanent injunction only, a decree for possession cannot be passed. This case, in my opinion, has no application to the facts of this case. Rather the case reported in Mohamraad Mian v. Jugeshwar Prasad (AIR 1951 Pat 550) fully applies to the facts of this case. Reuben, J., had to deal with a case where a decree for eviction was sought against a tenant. The Courts held that the defendant was not a tenant. But at the same time, held that the plaintiff had title to the suit property. On these facts, it was held that in such a situation, the Court had discretion under Order 7, Rule 7 of Civil P. C. to grant an equitable relief of ejectment on the basis of title, provided the plaintiff has done nothing to disqualify him from receiving an equitable relief, and the issue of title has been raised and fairly tried.
6. Now in the present case also, as I have stated earlier, the title of the plaintiffs was denied and the defendant claimed title to the suit property in himself and issue regarding title was, therefore, framed. Both sides adduced full evidence on the question of title. The two Courts below concurrently found title with the plaintiff-respondents. But at the same time, the appellate Court also held that the plaintiffs had not been able to prove relationship of landlord and tenant. I do not see how this case can be distinguished from the case I have just referred to above.
7. Learned counsel for the appellant also could not distinguish this case. He, however, urged that the proposition mentioned in the above case needs re-examination. I do not think I can accede to this request. The case that I have just referred to above is a Division Bench case which was followed in the case of Smt. Kasturi Devi v. Shripal Singh (AIR 1954 Pat 128), by another Division Bench. Then against these two cases were relied upon by a learned single Judge in the case of Gauri Sao v. Ramkishun Sao (1968 BLJR 467). The law as laid down in the case of Moham-mad Mian v. Jugeshwar Prasad (AIR 1951 Pat 550) has stood till about thirty years. I do not think there is any justification for me now to doubt its correctness.
8. Learned counsel also drew my attention to the provisions of Order 7, Rule 8 of the Code of Civil Procedure, and on that basis contended that where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly. According to the learned counsel, since the case of the licencee was not mentioned no relief can be given to the plaintiffs, treating the appellant as a licensee. All that Rule 8 of Order 7 of Civil P. C. provides is that the plaintiff should state the grounds on which he seeks relief. It does not mean that equitable relief under Order 7, Rule 7 cannot be given if all the grounds are not mentioned. In fact, if the argument of the learned counsel is accepted, then there will be no scope for the Court to grant equitable relief.
9. A cross-objection has also been filed on behalf of the plaintiffs against that part of the decree by which their claim for arrears of rent for the period prior to the judgment passed by the trial Court was refused. Mr. Hussain in support of his cross-objection submitted that the appellant was living in the house even prior to the date when the decree was passed by the trial Court. He, therefore, contended that a decree for damages' at least should have been passed with effect from 1st of May, 1970. This argument of Mr. Hussain has no substance. According to the finding recorded by the Court of appeal below, the appellant was not paying any rent to the plaintiffs, and if he was a licensee, as the finding goes, he cannot, by a decree passed by the Court, be compelled to pay for residing in the house.
10. For the arofesaid reasons I see no merit either in the appeal or in the cross-objection. Both of them are, therefore, dismissed; but without costs.