Patna High Court - Orders
Chandra Mohan Banraj vs Smt.Indu Singh & Anr on 10 September, 2014
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9145 of 2011
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Chandra Mohan Banraj, son of Late Ram Khelawan Mahto, Resident of
Ram Krishna Lane, Langer Toli, P.O. - Bankipur, P.S. - Kadam Kuan,
Town and District - Patna .
.....(Defendant No.1).... .... Petitioner.
Versus
1. Smt. Indu Singh, wife of Sri Vijay Singh, Resident of Village - Nadma,
P.O. - Nadma, P.S. - Barh, District. - Patna.
..... (Plaintiff)...Respondent Ist Set.
2. Most Janki Kuer (Since Dead), wife of Late Ram Khelawan Mahto,
resident of Ram Krishna Lane, Langer Toli, P.O - Bankipur, P.S. -
Kadam Kuan, Town and District - Patna.
.... .... (Defendant No.2)....Respondent 2nd Set.
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with
Civil Writ Jurisdiction Case No.8934 of 2011
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Chandra Mohan Banraj, son of Late Ram Khelawan Mahto, Resident of
Ram Krishna Lane, Langer Toli, P.O. - Bankipur, P.S. - Kadam Kuan,
Town and District - Patna .
.....(Defendant No.2).... .... Petitioner
Versus
1. Smt. Indu Singh, wife of Sri Vijay Singh, Resident of Village - Nadma,
P.O. - Nadma, P.S. - Barh, District - Patna.
..... (Plaintiff)...Respondent.
2. Most Janki Kuer (Since Dead), wife of Late Ram Khelawan Mahto,
resident of Ram Krishna Lane, Langer Toli, P.O - Bankipur, P.S. -
Kadam Kuan, Town and District - Patna. {Appears to be deleted vide
Court's order dated 24.10.2008}.
.... .... (Defendant No.1)....Respondent 2nd Set.
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Appearance :
(In CWJC No.9145 of 2011):
For the Petitioner : M/s. Kalyan Kumar Ghose and Ashok Kumar
Verma, Advocates.
For the Respondents : Mr. Neeraj Kumar, Advocate.
(In CWJC No.8934 of 2011)
For the Petitioner : M/s. Kalyan Kumar Ghose and Ashok Kumar
Advocates.
For the Respondents : Mr. Neeraj Kumar, Advocate.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
CAV ORDER
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Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014
2/12
22 10-09-2014The writ application bearing C.W.J.C. No.9145 of 2011 filed on behalf of the petitioner is directed against the order dated 01.08.2007 passed in Title Eviction Suit No.11 of 2006 by the court of Munsif-III, Patna, partly allowing the application dated 01.12.2006 filed on behalf of the plaintiff/ Respondent no.1 under Section 15 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as "the Act") directing the defendant no.1/petitioner to deposit the arrears of rent from February, 2006 till July, 2007 at the rate of Rs.800/- per within 15 days with a further direction to deposit monthly rent of Rs.800/- in each month in the Civil Court Nazarat, Patna, beginning from the month of August, 2007 by 15th day of every month. The writ application bearing C.W.J.C. No.8934 of 2011 filed on behalf of the petitioner is directed against the order dated 25.02.2008 passed in Title Eviction Suit No.11 of 2006 by the court of Munsif-III, Patna, allowing the application dated 26.09.2007 filed on behalf of the plaintiff/ Respondent no.1 under Section 15 of the Act by striking off the defence against the ejectment of the defendant no.2/petitioner.
Since both the writ applications have been filed against the two orders passed in Title Eviction Suit No.11 of 2006 in which the petitioner is the defendant, therefore, both writ applications have been heard together and are being disposed of by this common order. Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 3/12
2. In brief, the case is that the plaintiff/Respondent no.1 filed Title Eviction Suit No.11 of 2006 under Section 11(1)(b) and
(c) of the Act against the petitioner and his mother, Most. Janki Kuer for eviction of the suit premises on the ground of default of payment of rent and personal necessity. The case of the plaintiff is that the defendants sold the suit premises through registered sale deed dated 04.12.1978 to Smt. Shanti Devi, wife of Sidheshwar Sharma. The defendants at that time made request to Smt. Shanti Devi to let out the suit premises on rent because they have no house to live with assurance to vacate the suit premises as and when required. On the request of the defendants, Smt. Shanti Devi, and her husband, Sidheshwar Sharma, let out the suit premises to the defendants on monthly rental of Rs.800/- per month and defendants used to pay the rent to the landlord, Smt. Shanti Devi. After the death of Smt. Shanti Devi, her husband, Sidheshwar Sharma, became the owner and came in possession of the suit premises and applied for mutation of his name before the Municipal Corporation and his name was mutated by order dated 29.06.2004. Sidheshwar Sharma also died leaving behind his sole son, Ganesh Kumar, who came in possession of the suit premises and realized the rent from the defendants regularly. Thereafter, Ganesh Kumar, who was in the need of money, sold the suit premises in favour of the plaintiff on payment of consideration Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 4/12 of Rs.2,60,000/- on 24.01.2006 and also asked the defendants to pay the rent to the plaintiff as she has purchased the suit premises. The plaintiff also asked the defendants to pay the rent but the defendants avoided to pay the rent on one pretext or the other till May, 2006 and lastly, refused to pay the rent. The further case of the plaintiff is that she is in the need of the suit premises because her husband is doing business at Mohalla-Nala Road, Patna, and resides in a rented house and the landlord is pressing him to vacate the house, as such, the plaintiff has also required the suit premises for her personal use.
3. The defendant-petitioner filed the written statement and denied the relationship of landlord and tenant in between him and the plaintiff with the contention that actually the plaintiff wants to get her title declared in respect of the suit premises and to obtain possession thereof in the garb of eviction suit. Admittedly, the name of Most. Janki Kuer was recorded in respect of the suit premises and she was the owner. But in Khangi Batwara with the consent of Most. Janki Kuer among her two sons, namely, Ram Chandra Prasad and Chandra Mohan Banraj (petitioner), the suit premises was allotted to the petitioner but Ram Chandra Prasad was creating hindrance because he was not satisfied with the partition and wanted to grab the suit premises. Due to that reason, Janki Kuer with the consent of her close friend, Shanti Devi, the mother of Ganesh Kumar, executed the Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 5/12 fake sale deed without consideration in favour of Shanti Devi, so that Ram Chandra Prasad may not claim over the suit premises. Despite execution of said sale deed, the defendants remained in possession of the suit premises and Shanti Devi never misused the said document against the interest of Janki Kuer. Recently, Sidheshwar Sharma, husband of Shanti Devi, by playing fraud got his name mutated in Patna Municipal Corporation in collusion with its officials on 29.06.2004 and against the said order of mutation, the defendants filed Mutation Appeal No.28 of 2004 before the Deputy Chief Executive Officer, Patna Municipal Corporation, Patna. After the death of Sidheshwar Sharma, his son, Ganesh Kumar, made attempt to disposses the defendant forcibly but he failed and due to that reason in collusion with the plaintiff and her husband committed further mischief by executing the sale deed in respect to the suit premises.
4. After filing of the written statement by the defendants, the plaintiff filed an application on 01.12.2006 under Section 15 of the Act with a prayer to direct the defendants to pay the arrears of rent since 01.02.2006 as well as current rent. After hearing the parties, the learned Munsif-III, Patna, through the impugned order dated 01.08.2007 partly allowed the application, directing the petitioner to deposit the arrears of rent from February, 2006 till July, Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 6/12 2007 at the rate of Rs.800/- per month within 15 days with further direction to deposit monthly rent of Rs.800/- in each month beginning from the month of August, 2007 by 15th day of every month in the Civil Court Nazarat, Patna.
Due to non compliance of the order dated 01.08.2007 by the petitioner, the plaintiff filed an application 26.09.2007 under Section 15 of the Act to struck off the defence against the ejectment of the defendant due to non compliance of the aforesaid order. The learned Munsif-III, Patna, after hearing the parties through the impugned order dated 23.02.2008 allowed the said application and struck off the defence against the ejectment of the defendant.
5. Learned counsel appearing on behalf of the defendant-petitioner made submission that the learned trial court has illegally passed the order dated 01.08.2007, which has been challenged in C.W.J.C. No.9145 of 2011, directing the petitioner to deposit the arrears of rent from February, 2006 till July, 2007 at the rate of Rs.800/- per month within 15 days with further direction to deposit monthly rent of Rs.800/- in each month beginning from the month of August, 2007 by 15th day of every month in the Civil Court Nazarat, Patna, without collecting materials in an enquiry only on the basis of the pleading of the parties. It is further submitted that since the petitioner has claimed his right and title over the suit premises Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 7/12 and disputed the title of the plaintiff, hence, the defence of the petitioner cannot be struck off to cross examine the plaintiff's witnesses and adduce evidence on the point of title. As such, the order dated 25.02.2008, which has been challenged in C.W.J.C. No.8934 of 2011 is illegal. In support of his submission, learned counsel for the petitioner placed reliance on a decision in the case of Mahabir Ram Vs. Shiva Shankar Prasad {AIR 1968 Patna 415 (Full Bench)}.
6. On the other hand, learned counsel for the plaintiff- Respondent made submission that where the tenant denies the relationship of landlord and tenant and claims his own title, the provision of Section 15 will not defeat by such denial and the court is required to examine materials available on the record and determine whether the denial of relation of landlord and tenant is bonafide or a mere pretence. In the present case, the defendant- petitioner has not denied the execution of the registered sale deed by his mother, Most. Janki Kuer (since dead) in favour of Late Shanti Devi, mother of Ganesh Kumar, vendor of the plaintiff and he only contended that the alleged sale deed is fake. As such, there is no illegality in both the impugned orders.
7. The order dated 01.08.2007, which has been challenged in C.W.J.C. No.9145 of 2011, shows that after hearing Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 8/12 the parties and perusing the materials available on the record, the learned trial court came to the conclusion that no evidence has been adduced on behalf of the plaintiff or defendant as the issue has not been settled till yet but from the pleading of the both sides, it appears that plaintiff has purchased the suit house and there seems to be prima facie relationship of landlord and tenant between the plaintiff and the defendant. However, the same will be decided at the time of final adjudication of the suit. But there seems to be prima facie relationship of landlord and tenant between plaintiff and defendant and the last paid rent seems to be Rs.800/- per month and so no order with respect to payment of rent by defendant to the plaintiff can be passed at this stage but order can be passed directing the defendant to deposit the rent in Civil Court Nazarat, Patna, with observation that at the time of final adjudication it will be decided as to whether plaintiff is entitled to get the rent or the defendant is entitled to withdraw the deposited rent and, accordingly, allowed the application dated 01.12.2006 filed on behalf of the plaintiff/Respondent no.1 partly, directing the defendant no.1/petitioner to deposit the arrears of rent from February, 2006 till July, 2007 at the rate of Rs.800/- per month within 15 days with a further direction to deposit monthly rent of Rs.800/- in each month beginning from the month of August, 2007 by 15th day of every Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 9/12 month in the Civil Court Nazarat, Patna.
Impugned order dated 25.02.2008 of C.W.J.C. No.8934 of 2011 shows that the application dated 26.09.2007 filed by the plaintiff to strike off the ejectment of the defence of defendant is allowed due to non compliance of the order dated 01.08.2007, whereby the defendant was directed under Section 15 of the Act to deposit the arrears of rent and current rent.
8. On bare reading of Section 15 of the Act, it is apparent that if the tenant contest the suit as regards claim for ejectment, the landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, and the Court after giving opportunity to the parties to be heard, may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before or after the institution of the suit if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order of the rent at such rate for any month by the fifteenth day of the next following month; the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross examine the landlord's witness. Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 10/12
9. In the case of Mahabir Ram (supra), the Full Bench of this Court has held that in case the defendant denies the relationship of landlord and tenant between the plaintiff and himself, the court has to examine the materials then available and come to a conclusion whether the said denial or a dispute as to the title of the plaintiff was bona fide or a mere pretence; and in case there is no prima facie merit in the said denial, the defendant can be called upon to make the deposit, if other conditions are fulfilled. The court has to determine as to what was the rate of rent last paid and as to what amount or rent was in arrear, if any. The order passed in this connection is subject to the variation, inasmuch as the House Controller may determine during the pendency of the suit that the fair rent of the house is somewhat different. The order passed at the stage of the said application under Section 11A are subject to the final decision on the very same question in the suit.
It is further held that the moment the defendant in a suit takes the defence that he is not the tenant of the plaintiff and landlord and no relationship of land lord and tenant was created, the position is that such defence is taken by him not in the capacity of tenant. His defence may be that he himself was the owner of the house or third party was an owner, but all the defence is not qua the tenant of the plaintiff. In such a case, even on striking out the defence against the Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 11/12 ejectment he cannot be debarred from cross examination of plaintiff's witnesses on the question of title or adducing his own evidence to prove title.
10. In view of the decision in the case of Mahabir Ram (supra), it is clear that where the defendant denies the relationship of landlord and tenant between him and the plaintiff, the court will examine the materials available on the record to come to the conclusion whether such denial of the relationship of the landlord and the tenant and also the dispute as to the title of the plaintiff was bonafide or not. If the court finds that there is no denial of the defendant, the court may ask the defendant to deposit the rent.
11. In the present case, the plaintiff has claimed the right and title over the suit land on the basis of the sale deed executed by Ganesh Kumar, son of Shanti Sharma, to whom the suit premises was transferred by Most. Janki Kuer, the mother of the defendant- petitioner, through sale deed dated 04.12.1978. The defendant- petitioner has not denied execution of sale deed in favour of Late Shanti Devi, mother of Ganesh Kumar, vendor of plaintiff- Respondent rather his case is that the sale deed was fake and without consideration. As such, I find no substance in the first submission of the learned counsel for the petitioner.
So far as the second submission of the learned counsel Patna High Court CWJC No.9145 of 2011 (22) dt.10-09-2014 12/12 for the petitioner that the petitioner cannot be debarred to cross- examine the witnesses of the plaintiff and adduce evidence on the point of title of the suit premises is concerned, the impugned order dated 25.02.2008 of C.W.J.C. No.8934 of 2011 shows that only the defence in respect of ejectment of the defendant-petitioner has been struck off. As such, I find no substance in the second submission of the learned counsel for the petitioner also.
12. Having regard to the facts and circumstances and the discussions, made above, I find no illegality in both the impugned orders calling for interference with the same. Accordingly, both the writ applications stand dismissed.
(Rajendra Kumar Mishra, J) P.S./-N.A.F.R. U