Jharkhand High Court
Sarwar Mirza vs M.H. Khuzaima on 17 October, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:32266
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 87 of 2025
1. Sarwar Mirza, aged about 57 years,
2. S.M. Eqbal, aged about 54 years,
3. S.M. Azad, aged about 49 years,
4. S.M. Sabir, aged about 46 years,
5. S.M. Irfan @ Irfan Alam, aged about 44 years,
All above named are sons of Late Syed Mashiruddin, Resident of Idris
Colony, Kanta Toli, P.O. & P.S.-Lower Bazar, Dist.-Ranchi
... ... Defendants/Appellants/Appellants
Versus
M.H. Khuzaima, Son of Late M.J. Khujaima, Resident of Idris
Colony, Kantatoli, P.Ο. & P.S.-Lower Bazar, Dist.-Ranchi.
... ... Plaintiff/Respondent/Respondent
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Niraj Kishore, Advocate : Ms. Shobha Rani, Advocate For the Respondent : Mr. R.M. Khuzaima, Advocate
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C.A.V. on 08.10.2025 Pronounced on 17.10.2025
1. This 2nd appeal has been filed against the judgment and decree dated 31.07.2024 (decree sealed and signed on 09.08.2024) passed by learned Additional Judicial Commissioner-V, Ranchi in Civil Appeal No. 10 of 2020 whereby the learned 1st appellate court dismissed the appeal and affirmed the judgment and decree dated 04.10.2019 (decree signed on 11.11.2019) passed by learned Civil Judge (Junior Division) (Additional Munsif-I), Ranchi in Original (Eviction) Suit No. 21 of 2003. The suit was decreed, the 1 st appeal was dismissed and the defendants are the appellants before this Court.
2. The suit was filed under the provisions of the then Bihar Building (Lease, Rent and Eviction) Control Act (hereinafter referred to as 'BBC Act') seeking ejectment of defendants from the suit premises on account of default in payment of rent and also for a decree of arrears of rent to the extent of Rs. 25,200/- for 36 months i.e., from 10.07.2000 to 09.07.2003.
2025:JHHC:32266 Arguments of the appellants.
3. The learned counsel for the appellants submits that the appellants were inducted as tenant by the plaintiff as back as on 01.02.1996 for a period of 11 months. The defendants continued to be a tenant and while the tenancy was continuing, one agreement of sale dated 13.11.1997 was executed between the appellant no. 1 and the plaintiff. Consequent thereto, an amount of Rs. 2 lakhs was paid and Rs. 80,000/- remained due which was to be paid at the time of Registry. He has further submitted that the status of landlord and tenant relationship between the parties had undergone a change upon execution of agreement of sale dated 13.11.1997 (exhibit D). The learned submits that the plaintiff did not have any title over the property, inasmuch as, P.W. 5 had admitted in his evidence that the property was a Khas Mahal property, that is, leased out under the state. He submits that the owner of the property is the State and the plaintiff could not have entered into tenancy or even sell the property as the property was a Khas Mahal property. The learned counsel has submitted that the plaintiff has defrauded the appellants by inducting the appellants as a tenant and entering into an agreement of sale.
4. During the course of argument, it is not in dispute that the suit seeking specific performance of contract relating to agreement of sale dated 13.11.1997 has been dismissed and the appeal has also been dismissed. The title suit regarding specific performance of contract was Title Suit No. 171 of 2003 and the corresponding 1st Appeal was Civil Appeal No. 02 of 2021.
5. However, the learned counsel for the appellants submits that since the nature of relationship had undergone a change therefore, the relationship of landlord and tenant did not exist post 13.11.1997 and hence, the suit seeking recovery of possession on account of default in payment of rent after 13.11.1997 was not maintainable. The learned counsel has also submitted that as per the plaintiff, the defendants had defaulted in payment of rent from 13.11.1997 till 09.07.2003 but the claim for rent was made only for a period of 3 years prior to institution of the suit. He has also submitted that the period of default, as 2 2025:JHHC:32266 recorded by the learned trial court, is also for a period from 10.07.2000 to 09.07.2003.
6. The learned counsel for the appellants has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2000) 9 SCC 339 [R. Kanthimathi and Another Vs. Beatrice Xavier (Mrs.)] and has referred to paragraphs 6, 8 and 9 of the said judgment to submit that once there is an agreement of sale with respect to the suit property, the relationship of landlord and tenant does not exist anymore and therefore, the suit seeking eviction was itself not maintainable.
7. The learned counsel for the appellants has referred to internal page 9 of the 1st appellate court's judgment and has submitted that the fact stood admitted that the suit premises is a government lease land and the plaintiff was not the lease holder, therefore, any agreement for transfer of land by the plaintiff to the defendants will not fall within the ambit of legal transfer because the plaintiff is not the bonafide owner of the suit premises. He submits that in spite of recording such finding, still the 1st appellate court's judgment upheld the judgment of eviction passed by the learned trial court.
Findings of this court.
8. It was the specific case of the plaintiff that the defendants were inducted as month-to-month tenant for a rent of Rs. 700/- on 01.02.1996 for a period of 11 months with renewal clause on increase of rent after completion of two years @ Rs. 100/-. Further case was that the defendant no.1 failed to make payment of rent from 13.11.1997 till the date of filing the suit i.e., 09.07.2003. The plea of bonafide necessity was also raised with respect to the son of the plaintiff.
9. The plaintiff issued legal notice dated 29.05.2003, but in spite of receipt of legal notice, the defendants did not evict the suit premises. It was stated in the plaint that a contract for sale of the suit premises was entered into between the parties on 13.11.1997, but the said agreement stood terminated due to lapse of time on 03.05.1999.
32025:JHHC:32266
10. The defendants filed their written statement stating that they have constructed a double storied building after execution of the agreement for sale dated 13.11.1997 and the defendant no.1 was the owner of the suit property pursuant to the agreement of sale. The total consideration was Rs. 2,80,000/- out of which Rs. 2 lakhs was paid and the balance of Rs. 80,000/- was to be paid at the time of final registration of the suit property.
11. The defendants further asserted that they had fulfilled their part of the contract, but the plaintiff failed to perform his part of the contract. The defendants were totally ignorant that the property was lease hold government property which is non-transferrable. The defendant no.1 had applied for settlement of the property in his name. The defendants claimed that the plaintiff was the landlord of the property till 13.11.1997, but after entering into agreement of sale, the plaintiff ceased to be the owner of the property and therefore, the plaintiff was not entitled to receive rent. The defendants denied the relationship of landlord and tenant after 13.11.1997. It was also stated that the defendant no.1 had filed the Title Suit No. 171 of 2003 seeking specific performance of agreement dated 13.11.1997.
12. The following issues were framed by the learned trial court:
1. Is the suit as framed maintainable?
2. Has the plaintiff got valid cause of action for the suit?
3. Whether there is relationship of landlord and tenant in between the plaintiff and defendant with respect to suit properties?
4. Whether the defendant have committed default in making payment of rent to the plaintiff and have made themselves by the defaulter and are liable to be evicted as alleged by the plaintiff?
5. Whether the premises in suit is in good faith personally and bonafidely required by the plaintiff and its family members?
6. Whether partial eviction of the defendants from the suit premises shall serve the need of the plaintiff?
7. Is the plaintiff entitled for the relief(s) as prayed for?
13. Both the parties led oral and documentary evidences.
42025:JHHC:32266
14. Issue nos. 3, 4 and 5 were taken up together by the learned trial court. The learned court recorded that the agreement dated 13.11.1997 was duly proved and held that it was clear from the agreement that time was the essence of the agreement. The court also recorded that Title Suit No. 171 of 2003 was dismissed on contest vide judgement contained in exhibit-6.
15. The court referred to section 54 of the Transfer of Property Act to observe that a contract for sale of immovable property does not by itself create any interest or charge on property.
16. The court also observed that the defendants did not even plead that they had paid the rent of the premises as claimed by the plaintiff. The court referred to the judgment passed by the Hon'ble Supreme Court reported in AIR 2003 SC 4149 [R. Kanthimathi and Anr. Vs. Beatrice Xavier (Mrs.)] wherein the landlady was returned the earnest money taken at the time of agreement due to breach of contract by the tenant and therefore, she had filed the suit for eviction and the court observed that the Hon'ble Supreme Court held in the said case that non-payment of rent within the said period will not come within the ambit of willful default. The learned trial court recorded that in the present case the agreement was terminated due to it being time barred. The learned court also recorded that thereafter the plaintiff had issued legal notice to the defendants for payment of rent excluding the period of agreement vide Exhibit- 3 dated 29.05.2003 and in reply to the same, the defendant no.1 denied to pay the rent. The reply of the defendant no.1 is exhibit A.
17. The learned trial court, while considering the point of relationship of landlord and tenant observed that the lease deed dated 01.01.1997 was duly proved vide Exhibit-2 and 2/a. The court held that there was an agreement of sale, but the same had expired due to lapse of time and as such, the status of the defendants was that of a tenant of the plaintiff. The learned court also referred to the provisions of section 116 of the Indian Evidence Act and ultimately held that there is a relationship of landlord and tenant between the parties. The plea of personal necessity was also decided in favour of the plaintiff 5 2025:JHHC:32266 by holding that the witnesses of the plaintiff on the point of bonafide requirement were not rebutted by the defendants. The learned court also referred to exhibit-1 (gift deed) and observed that ownership of the plaintiff was established.
18. The plea that the property is a Khas Mahal property and belonging to the Government, was also taken into consideration. The learned trial court recorded that the government had not brought any claim against the plaintiff challenging the ownership and hence the plea taken by the defendants that the plaintiff is not the owner of the suit property was not sustainable. The rule of estoppel also applied against the defendants. All the 3 issues namely, issue nos. 3, 4 and 5 were ultimately decided in favour of the plaintiff.
19. The point of partial eviction of the defendants from the suit premises was also considered under issue no. 6 and the same was also decided in favour of the plaintiff. The plaintiff was ultimately held to be entitled for recovery of possession and also for receiving payment of arrears of rent of Rs. 25,200/- from 10.07.2000 to 09.07.2003.
20. The learned 1st appellate court formulated the following points for determination:
"1. Whether the appeal is liable to be allowed?
2. Whether there existed relationship of landlord and tenant between the plaintiff and the defendant and whether the defendant actually discontinued the payment of monthly rent to the plaintiff?
3. Whether the plaintiff was in need of the suit premise for personal necessity?
4. What order?"
21. The main points for determination namely, point for determination nos. 2 and 3 were taken up together. The learned 1st appellate court recorded that the existence of tenancy from 01.02.1996, execution of lease deed dated 01.01.1997 and agreement of sale dated 13.11.1997 were admitted facts. As per the defendants, they stopped making payment of monthly rent with effect from 13.11.1997. The court recorded as under:
62025:JHHC:32266 "(9). ....Here it is an admitted fact that the suit premise is a government lease land and the plaintiff is not the lease holder so any such agreement for the transfer of the land by the plaintiff to the defendant will not fall within the ambit of legal transfer because the plaintiff is not the bonafide owner of the suit premise.
The Eviction suit was filed under Sec. 11 (1) d of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 for eviction of the suit premise by plaintiff/ respondent M.H. Khuzamia Sec. 11 (1) d of Bihar Building (Lease, Rent and Eviction) Control Act, 1982. Two important factors incorporated in Sec. 11 (1) d of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 are responsible for getting the suit premise given on rent to the tenant, evicted - one is default on the payment of rent on the part of the tenant for three consecutive months and another is personal necessity of the landlord. The defendant / appellant has admitted in para 12 of the W.S. that there was the relationship of landlord and tenant between the plaintiff and the defendant but that relationship ceased to exist since 13.11.1997, the date on which the agreement to sell the suit premise was executed in favour of the appellant / defendant by the plaintiff/respondent and it has also been admitted that since 13.11.1997, the appellant stopped paying monthly rent to the plaintiff / respondent, who was landlord. Here the relationship of landlord and tenant is admitted and the breach in the payment of monthly rent for more than three consecutive months is also admitted by the defendant on the ground that there had been an agreement to sell between both the parties. Since one of the conditions for getting the suit premise evicted from the possession of the appellant is fulfilled and also admitted by the appellant, hence the respondent/ plaintiff is legally entitled to get possession of the suit premise after getting it evicted from the possession of the appellant / defendant.
The ground taken by the appellant / defendant for not paying monthly rent to the respondent/ plaintiff, which is execution of agreement to sell of the suit premise by the respondent/ plaintiff in favour of the appellant /defendant on 13.11.1997 is not sustainable in the eye of law because it is void ab-initio on the ground that admittedly the suit premise is Khas Mahal land and that land has never been settled in favour of respondent/ plaintiff by the government. The plaintiff claims to get the land on the basis of a gift deed executed by Riv. G.P. Loler in favour of the plaintiff on 02.08.1984. That execution of gift deed is also not sustainable in the eyes of law. Since from any corner, the plaintiff/ respondent can not be taken as the landlord of the suit premise hence the agreement to sale executed by him is also not lawful because a persons is 7 2025:JHHC:32266 expected and required to transfer best title and the plaintiff is not the owner of the suit premise.
(10). In the suit filed under Bihar Building (Lease, Rent & Eviction) Control Act, the title of the landlord is not required to be looked into rather only the relationship of the landlord and the tenant between the parties are required to be ascertained and the conditions i.e. breach in payment of monthly rent or personal necessity of the landlord are required to be fulfilled and in the instant appeal, on the basis of the pleadings of the appellant/ defendant both the relationship of the landlord and the tenant between the parties and breach in payment of monthly rent for more than three consecutive months are admitted and proved hence I do not find any infirmity in the judgment of the ld. Trial court and any impediment in confirming the judgement and decree of the ld. Trial court. Consequently, the instant Civil Appeal is hereby dismissed and the judgment and decree of the ld. Trial court in Original (Eviction) Suit no. 21/2003 pronounced on 04.10.2019 and 11.11.2019 respectively is hereby confirmed. The appellant is directed to strictly abide by the order of the ld. Trial Court."
22. The learned 1st appellate court held in paragraph 10 of its judgment that under BBC Act, the title of the landlord is not required to be looked into, rather only the relationship of landlord and tenant between the parties is required to be ascertained and the conditions i.e., breach of payment of monthly rent and personal necessity of landlord are required to be fulfilled and ultimately, having found that these points were duly satisfied, the appeal was dismissed.
23. The judgment passed in the suit for specific performance of contract in Title Suit No. 171 of 2003 has been upheld in Civil Appeal No. 02 of 2021 vide judgment dated 28.02.2025 passed by the Additional Judicial Commissioner, Ranchi. The trial court's judgment regarding the specific performance of contract was already exhibited before the learned trial court in the present case. The appeal against the said judgment passed in the suit for specific performance of contract, has also been dismissed.
24. This Court finds that the learned 1st appellate court has held that the agreement of sale itself was null and void as it was for a Khas Mahal property belonging to the Government. It has also come on record that the plaintiff was claiming the property on the basis of a gift 8 2025:JHHC:32266 deed which was also not sustainable in law and the Court confined itself to the scope of the BBC Act and held that the title of the landlord is not required to be looked into, rather only the relationship of landlord and tenant between the parties is required to be ascertained and the conditions i.e., breach of payment of monthly rent and personal necessity of landlord are required to be fulfilled and ultimately, having found that these points were duly satisfied, the 1st appeal was dismissed.
25. This court is of the considered view that the learned trial court has rightly held that the agreement of sale was itself null and void. Once the agreement of sale itself is null and void as the plaintiff was a lessee under the State and had no right to sell the property, the question of severance of relationship of landlord and tenant between the parties on the basis of agreement of sale does not arise at all. The fact remains that the suit for specific performance of the agreement of sale has already been dismissed and the appeal filed against the judgement passed in the suit has also been dismissed.
26. The judgment passed by the Hon'ble Supreme Court reported in (2000) 9 SCC 339 [R. Kanthimathi and Another Vs. Beatrice Xavier (Mrs.)] clearly stipulates that once the agreement of sale between the landlord and tenant is entered, the old relationship comes to an end and even cancellation of the agreement does not restore the relationship of landlord and tenant and in other words, on the date of execution of the agreement for sale, the status is changed to that of a purchaser and a seller and their relationship is to be governed by the terms of the agreement and if the parties do not perform their obligation, the remedy is available as per law. The said judgement does not apply to the facts of this case as in the present case the agreement of sale itself is null and void as the property belonged to the State being a Khas Mahal Property and the plaintiff had no right to sell the property. Such finding that the property was a Khas Mahal property is not challenged by the learned counsel for the appellants. The agreement of sale being null and void, the question in regard to the parties being governed by the agreement of sale, does not arise.
92025:JHHC:32266 The fact that the defendants initially came in possession of the property on account of tenancy under the plaintiff is an admitted fact. The law is well settled that in a matter regarding eviction under the special statute of tenancy laws the title of the landlord can be examined only for the limited purpose of arriving at a finding of landlord tenant relationship between the parties. The creation of tenancy of the defendants was admitted and the learned 1st appellate court has also considered the aforesaid position of law while deciding the case. The fact that the defendants did not pay rent after the agreement of sale is an admitted fact. Further, the findings of personal necessity of the plaintiff have been recorded after considering the materials on record and no perversity as such has been pointed out by the learned counsel for the appellants in the matter of appreciation of materials on record while coming to such findings.
27. In view of the aforesaid facts and circumstances, there is no substantial question of law involved in this case. This appeal is dismissed.
28. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.) Date of order: 17th October 2025 Date of uploading:17th October 2025 Pankaj 10