Jharkhand High Court
Md.Salim vs Md. Altav And Ors. on 9 October, 2015
Equivalent citations: 2016 (1) AJR 252, (2016) 157 ALLINDCAS 314 (JHA), (2016) 3 CIVLJ 365, (2016) 1 JCR 273 (JHA)
Author: D.N. Upadhyay
Bench: D. N. Upadhyay
1
S.A. No.53 of 1994 (R)
[Against the judgment dated 12th May, 1994 and decree
dated 30th May, 1994 passed by 3rd Additional District
Judge, Hazaribagh in Eviction Title Appeal No.5 of 1985]
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Md. Salim ....... Appellant.
-Versus-
1. Md. Altav.
2. Husna Ara.
3. Sakila Khatoon.
4. Zarina Khatoon.
5. Nigar Sultana.
6. Afroj.
7. Mazhabi Khatoon.
8. Alam Ara. .......Respondents.
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For the Appellant : Mr. J. P. Jha, Sr. Advocate
For the Respondents : Mr. Amar Kumar Sinha, Advocate
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PRESENT
HON'BLE MR. JUSTICE D. N. UPADHYAY
CAV on 16th Sept., 2015 Pronounced on 9th October, 2015
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D.N. UPADHYAY, J.:
1. This appeal has been preferred by the defendant/appellant against the judgment dated 12th May, 1994 and decree dated 30th May, 1994 passed and signed by learned 3 rd Additional District Judge, Hazaribagh in connection with Eviction Title Appeal No.5 of 1985, whereby judgment dated 21st December, 1984 and decree dated 10th January, 1985 passed and signed by learned Munsif, Hazaribagh in connection with Title Suit No.108 of 1981 by which the defendant has been directed to vacate the suit premises within two months from the date of decree, failing compliance the plaintiff shall be entitled to get the suit premises vacated through process of the Court and a decree for a sum of Rs.360/- as arrears of rent and the plaintiff is also entitled to future rent till the date of delivery of possession, have been upheld.
2. The appeal was admitted on 22nd November, 1994 to decide the following substantial questions of law:-
(a) Whether immovable property can be given orally in Den Mohar and whether such transfer can have any legal effect creating any title on the transferee?2
(b) Whether such transfer of dispossession of immovable properties has to be made by a registered deed?
(c) Whether widow's possession of her husband's property in lieu of dowr debt makes her absolute owner of the property adversely to the title of other heirs and/ or whether such possession of the widow shall be treated as a possession of all the heirs?
(d) Whether the decree of eviction can be passed where relationship of landlord and tenant is not established and whether payment of rent at any point of time is not established?.
3. Jamila Khatoon was the original plaintiff, who brought the suit against defendant/appellant for evicting him from the suit premises on the ground of personal necessity and also on the ground that the defendant had become defaulter in making payment of rent.
4. According to the plaint, Jamila Khatoon was the owner and landlady of Holding No.1135, Ward No.14 (Old), Ward No.17 (New), under Hazaribagh Municipality, within the town of Hazaribagh, situated at Mohalla Kalal Tola, Azad Road, more fully described in Schedule-A of the plaint. It is disclosed that Elahi Mian, during his lifetime, gave Plot Nos.1134 and 1135, under Ward No.17, Hazaribagh Municipality to his wife-Mangri in Dain Mohar and after that she acquired the property and became absolute owner. She died in the year 1958, leaving behind her only surviving daughter-Naseeban and the property was inherited by said Naseeban and she came in possession and got her name mutated in the record of Hazaribagh Municipality and, thereafter, she sold Plot No.1135 to her only daughter-Jamila Khatoon (plaintiff) by virtue of registered deed of sale, bearing No.13080 dated 6 th June, 1972, on payment of cash consideration of Rs.5,000/- and after that Jamila Khatoon got her name mutated in the record of Hazaribagh Municipality.
It is further disclosed that Plot No.1134 was again transferred in the name of Jamila Khatoon and her son Altaf and, thereafter, the plaintiff had been regularly paying rent to the erstwhile State of Bihar and municipal tax to Hazaribagh Municipality.
35. In the month of August, 1978, the defendant approached the plaintiff for providing him a house on rent and request so made was conceded and the suit premises was given to the defendant on monthly rent of Rs.30/- per month according to English Calendar and rent was payable by 5th day of every month. The defendant further agreed to vacate the suit premises, as and when it will be required for the use and occupation of the plaintiff, within a fortnight from the date of receipt of notice. The defendant had been paying rent regularly and it was paid till August, 1980, but thereafter he defaulted in making payment of rent from the month of September, 1980 and he had become defaulter in making payment of rent for more than two months and, therefore, liable to be evicted therefrom.
6. The plaintiff further made out a case that the suit premises was reasonably and in good faith required by her for her own use and occupation, as her husband was then unemployed and he wanted to open a motor repairing shop in the suit premises. The plaintiff requested the defendant several times to pay the arrears of rent and to vacate the suit premises because the same is required by the plaintiff for her own use and occupation, but the defendant did not pay any heed to the request, as a result the suit for evicting the defendant from the suit premises was brought vide Title Suit No.108 of 1981 with further prayer for a decree for arrears of rent pendente lite and future.
7. The defendant appeared and filed written statement, stating therein that the suit is not maintainable under Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (for short 'B.B.C. Act') or under any provision of Transfer of Properties Act. The suit is bad for non-joinder of necessary party because sons of Late Bibi Rasulan are necessary parties and the suit cannot proceed without impleading them as parties. The plaintiff wants to take unlawful possession of the house, standing on Plot No.1135, situated within Ward No.17, Hazaribagh Municipality in the colour of eviction suit without having any right, title, interest and possession over the suit property. The defendant has further denied the relationship of landlord and 4 tenant.
8. The defendant has made out a case that Sk. Badlu Mian, father of Sk. Elahi Mian, by virtue of registered Patta, got settlement of Municipal Plot no.54 of Kalal Toli, Boddom Bazar, now Azad Road, within Hazaribagh Municipality and constructed two separate house, each, having approximately equal area and it was later converted into Municipal Plot Nos.1134 and 1135 by Hazaribagh Municipality. Plot No.1134 represented the western portion of the house and Plot No.1135 represented eastern portion of the house. Sk. Badlu along with his first wife and son-Elahi Mian was residing in Plot No.1134, whereas second house standing over Plot No.1135 was in occupation of Badlu's second wife-Mahtab and her son-Mir Ali. Sk. Badlu and son-Sk. Elahi were mesons by profession and, therefore, they had been remaining outside of Hazaribagh in connection with their job.
It is disclosed that Mahtab, who was in occupation of Plot No.1135, got the same mutated in the name of her son- Mir Ali, but after death of Mir Ali, she left the house and went to some other place where she also died. After death of Mahtab and her son-Mir Ali, Plot No.1135 again came in possession of Sk. Elahi, who let out the same to one Noor Mohammad. Taking advantage of the fact that Sk. Elahi most of the time was living outside the district of Hazaribagh, Noor Mohammad filed a petition for recording a Patta in his name in the office of Municipality. An objection was raised by Sk. Elahi whereafter the application filed by Noor Mohammad stood rejected.
Again an attempt was made by the family members of Noor Mohammad to get the property mutated in their names and this time they succeeded and it was allowed to be recorded in the name of Dukhan Mian, son of Late Noor Mohammad.
9. Thereafter, Sk. Elahi filed Title Suit No.188 of 1924 and got a decree and possession was again obtained by him over Plot No.1135 in the year 1930. The defendant has further stated that Sk. Elahi was having one son, namely, Zahoor and four daughters, namely, Rasulan, Saliman, Naseeban and Marium.
5Zahoor died during lifetime of Sk. Elahi. Rasulan was married with Safi, Saliman was married with Shakoor. Saliman died issueless. Then Naseeban was married to Shakoor. Marium was married with one Kabir, but they died. Jainul Abedin and Kamruddin are sons of Bibi Rasulan and Jmila Khatoon was the daughter of Bibi Naseeban. Sk. Ilahi died sometimes in second half of the year 1930, leaving behind his widow-Most. Mangri and two daughters, namely, Bibi Rasulan and Bibi Naseeban and grand sons and grand daughters. It is admitted that aforesaid Plot Nos.1134 and 1135 stood mutated in the name of Mangri after death of Sk. Elahi.
It is contended that the transaction i.e. sale deed dated 6th June, 1972 is a fraudulent document executed by Bibi Naseeban in favour of her daughter Jamila Khatoon to deprive Jainul Abedin and Kamruddin, both sons of Rasulan. The transaction was without consideration and it was simply a paper transfer.
10.The defendant has further made out a case that the plaintiff had never acquired valid right, title, interest and possession over the suit property, standing on Plot No.1135, and the defendant was never inducted as tenant in the suit premises by her. As a matter, the defendant was inducted as a tenant over Plot No.1135 in the month of July, 1968 and that too by Jainul Abedin and since then defendant has been residing in the suit premises by regularly paying rent to Kamruddin and Jainul Abdedin to the knowledge of the plaintiff. There are evidences of unimpeachable character, which will show that since 1968 the defendant has been residing at Hazaribagh. The specific case which the defendant has made out is that he has purchased municipal Plot No.1135 with the house standing thereon from rightful owner on 28th April, 1982 by virtue of a registered deed of sale executed by Kamruddin and Jainul Abedin for valuable consideration and, thus, possession of the defendant in the suit premises has been ripen from tenant to that of rightful owner. Since the plaintiff has no right, title, interest and possession over the suit premises, the question of default in making payment of rent or the requirement of suit premises by the plaintiff 6 reasonably in good faith for their use and occupation does not arise.
11.On the basis of the pleadings, learned Trial Court framed following issues:-
(i) Is the suit as framed maintainable? (ii) Has the plaintiff cause of action for the suit?
(iii) Is the suit bad for non-joinder of necessary parties?
(iv) Is the plaintiff owner of the suit premises?
(v) Is there any relationship of land lord and tenant between the parties?
(vi) Had the defendant even paid rent to the plaintiff?
(vii) Was the Schedule "A" property given in Dein Mohar to Most. Mangri?
(viii) Is Most. Rasulan pre-deceased Most Mangri?
(ix) Is the plaintiff in personal need of the suit premises?
(x) Is the defendant defaulter in payment of rent?
(xi) Is the plaintiff entitled to decree as sought by her?
(xii) To what relief or reliefs is the plaintiff entitled too?
12.Learned Trial Court, after considering the evidences and documents brought by both the parties on record, decreed the suit in favour of the plaintiff. Thereafter, the defendant preferred Eviction Title Appeal No.5 of 1985 before the District Judge, Hazaribagh, which stood dismissed by learned 3rd Additional District Judge, Hazaribagh vide judgment dated 12th May, 1994 and hence this second appeal.
13.The appellant has assailed the impugned judgment dated 12th May, 1994 on the ground that learned First Appellate Court has dismissed the appeal on wrong appreciation of evidence available on record. Both the courts below have wrongly placed reliance on the fact that Sk. Elahi Mian had given the suit property to his wife Mangri in Dein Mohar and Most. Mangri by virtue of that oral transaction acquired right, title, interest and possession over the suit property. Learned courts below have wrongly held, the relationship of landlord and tenant between the plaintiff and the defendant exist. Both the courts below erred in law by holding that the defendant was tenant under the plaintiff and he was defaulter in making payment of rent. Acquisition of properties by Most.
7Mangri, after death of her husband, did not make her absolute owner of the properties adversely to the title of other heirs. In support of such contentions, learned counsel for the appellant has relied upon the following judgments:-
(i) AIR 1998 Patna 1 [Rukaiya Begum & Ors. Vs. Fazalur Rahman & Ors.]
(ii) AIR 2012 Jharkhand 39 [Amar Ahmad Khan & Ors.
Vs. Shamim Ahmed Khan & Anr.]
14.On the other hand, learned counsel appearing on behalf of the respondent has submitted that substantial questions of law formulated by this Court at the time of admission of this second appeal were unwarranted and need not be answered, in view of the fact that the plaintiff had filed the suit for evicting the defendant from the suit premises under the provisions of B.B.C. Act. In such suit the tenant has no right to raise question against title of the landlord, if the relationship of landlord and tenant between the plaintiff and the defendant has been established.
15.The questions, whether the defendant is tenant under the plaintiff or not; whether the defendant has become defaulter in making payment of rent or not; or whether the suit property is required by the plaintiff reasonably in good faith for his personal use and occupation or not, are the pure questions of fact and the courts below, after discussing the evidences and documents on record, have decreed the suit in favour of the plaintiff and that need no interference. In the second appeal very rarely the High Court can re-appreciate the evidence. There is concurrent findings of both the courts below and, therefore, this second appeal is devoid of merit and the same is liable to be dismissed. In support of submissions made above, learned counsel for the respondent has relied upon the following judgments of the Hon'ble Supreme Court as well as this Court:-
(i) AIR 2002 SC 136 [Rajendra Tiwary Vs.
Basudeo Prasad & Anr.]
(ii) (2012)4 SCC 344 [Hardeep Kaur Vs. Malkiat Kaur]
(iii) 2001(2) JCR 32 (SC) [Har Narain Daga Vs. Heeralal & Ors.] 8
(iv) 2001(2) JCR 527 (SC) [Hamida & Ors. Vs. Md. Khalil]
(v) 2006(3) JCR 105 (Jhr.) [Bishnu Kumar Choubey Vs. Smt. Shanti Devi]
16.In order to meet out the substantial questions of law framed under the heading '(a), (b) & (c)', it is desirable to reiterate some facts relating to title of the plaintiff, which the plaintiff had claimed by making averments in the plaint and the assertion of the defendant by which the defendant had tried to controvert the same.
17.According to the facts admitted by the defendant, houses constructed on Municipal Plot Nos.1134 and 1135 were being enjoyed by Sk. Elahi Mian after death of his father-Badlu Mian. Some litigation with regard to the house standing on Municipal Plot No.1135 had cropped up between Sk. Elahi Mian and Most. Lachhumania, but finally the property standing on Municipal Plot No.1135 again came in possession of Sk. Elahi by virtue of a decree passed in Title Suit No.188 of 1924 and the judgment was upheld by Title Appeal No.123/23 of 1925. Thereafter, by virtue of execution case, being Execution Case No.423 of 1927, Sk. Elahi Mian got delivery of possession over the house, standing on Plot No.1135, sometimes in the year 1930. The defendant has gone to the extent of disclosing other facts regarding family strength of Sk. Elahi Mian and also about death occurred in the family. In order to challenge title of the plaintiff, it was submitted that Sk. Elahi died in the year 1930, leaving behind his widow-Most. Mangri and daughters, namely, Bibi Rasulan and Bibi Naseeban and grand sons and grand daughters from them. It is also not disputed that properties pertaining to Municipal Plot Nos.1134 and 1135 were mutated in the office of Hazaribagh Municipality in the name of Most. Mangri, but it is pointed out by the defendant that Most. Mangri had got her name mutated on the false assertion that she got the properties in Dein Mohar by her late husband. No immovable property could be transferred by oral transaction. Most Mangri did not acquire any right over the property. Further 9 dispute, which the defendant has raised, is that Bibi Rasulan, one of the daughters of Most. Mangri, did not pre-decease her mother, rather Most. Mangri died leaving behind her two daughters, namely, Bibi Rasulan and Bibi Naseeban. It is necessary to mention here that the issue regarding date of death of Most. Mangri and date of death of Bibi Rasulan have been decided by the courts below on the basis of evidences adduced from both sides and a concurrent finding has come up that Bibi Rasulan pre-deceased Most. Mangri. After death of Most. Mangri, both houses, standing on Municipal Plot Nos.1134 and 1135, were acquired by only surviving daughter-Bibi Naseeban and on the basis of application made before the municipal authority, aforesaid houses, standing on Municipal Plot Nos.1134 and 1135, stood mutated in the name of Bibi Naseeban (daughter of Sk. Elahi).
Needless to mention, after holding enquiry and inviting objections, aforesaid properties were mutated in the name of Bibi Naseeban in the record of Hazaribagh Municipality. Thereafter, Bibi Naseeban executed a deed of sale in respect of Municipal Plot No.1135 in favour of her daughter-Jamila Khatoon (plaintiff). After execution of sale deed, the property standing on Municipal Plot No.1135 stood mutated in the name of the plaintiff-Jamila Khatoon and she had started enjoying her right, title, interest and possession over the same. It is further admitted by the defendant in his written statement that Bibi Naseeban had transferred the house, standing on Municipal Plot No.1134, in favour of the plaintiff and her son-Altaf and after such transfer aforesaid Municipal Plot No.1134 stood mutated in the name of the plaintiff and her son-Altaf.
At this juncture, it was contended by the defendant that execution of deed of conveyance by Bibi Naseeban in favour of the plaintiff shall not take away the right of legal heirs of Bibi Rasulan and the transfer of the property so made by Bibi Naseeban in favour of the plaintiff and her son-Altaf was without authority. It could not be held that only Bibi Naseeban would inherit the property left by Sk. Elahi. The defendant in order to justify the averments made by him in 10 the written statement has brought on record that he was inducted in the suit premises as a tenant in the year 1968 by Jainul Abedin and Md. Kamruddin, the legal heirs of Bibi Rasulan, and not by the plaintiff in the year 1978.
18.Further case of the defendant is that the house, standing on Plot No.1135, has been transferred by said Jainul Abedin and Md. Kamruddin in the year 1982 by virtue of a sale deed executed on 28th April, 1982 and, therefore, possession of the defendant over the suit property has been terminated because he became the owner of the property. The courts below have concurrently held that execution of deed of sale made against the suit property during pendency of the suit was hit by Section 52 of the Transfer of Properties Act and the transaction so made by and between Jainul Abedin and Md. Kamruddin at one hand and the defendant, on the other hand, has been discarded.
19.I feel it necessary to mention here that at no point of time the property pertaining to Municipal Plot no.1135 was ever recorded either in the name of Bibi Rasulan or in the name of Jainul Abedin and Md. Kamruddin. The mutation with regard to aforesaid buildings had been made in the record of Hazaribagh Municipality; first in the name of Most. Mangri after the death of her husband Sk. Elahi. Thereafter, aforesaid properties were transferred and mutated in the name of Bibi Naseeban and then Municipal Plot No.1134 in the name of the plaintiff-Jamila Khatoon and Municipal Plot No.1135 in the name of Jamila Khatoon and her son-Altaf.
20.For the sake of argument, even assuming it to be correct that Jainul Abedin and Md. Kamruddin are the descendants of Sk. Elahi and they are having interest in the property, the defendant would not get any benefit because he has admitted his possession over the suit property as that of a tenant. The dispute raised by him is that he was inducted as a tenant in the suit premises in the year 1968 by said Jainul Abedin and Md. Kamruddin and not by the plaintiff in the year 1978. Again I would like to observe that the courts below, on the basis of evidences and documents available on record, have held that the defendant was inducted as a tenant in the 11 suit premises in the year 1978 and relation of landlord and tenant between the plaintiff and the defendant exists and this is also a pure question of fact, which has been decided concurrently by both the courts below. Therefore, further finding by re-appreciating the evidence in the second appeal filed under Section 100 CPC is certainly not desirable.
The Hon'ble Supreme Court in the case of Hardeep Kaur (Supra), in Paras-10 and 11, has held as under:-
"10. The jurisdiction of the High Court in hearing a second appeal under Section 100 CPC has come up for consideration before this Court on numerous occasions. In a long line of cases, this Court has reiterated that the High Court has a duty to formulate the substantial question(s) of law before hearing the second appeal. As a matter of law, the High Court is required to formulate substantial question of law involved in the second appeal at the initial stage if it is satisfied that the matter deserves to be admitted and the second appeal has to be heard and decided on such substantial question of law. The two decisions of this Court in this regard are: Kshitish Chandra Purkait V. Santosh Kumar Purkait and Dnyanoba Bhaurao Shemade V. Maroti Bhaurao Marnor.
11. It needs to be clarified immediately that in view of sub-section (5) of Section 100, at the time of hearing of the second appeal, it is open to the High Court to reformulate substantial question(s) of law or formulate fresh substantial question(s) of law or hold that no substantial question of law is involved. This Court has repeatedly said that the judgment rendered by the High Court under Section 100 CPC without following the procedure contained therein cannot be sustained. That the High Court cannot proceed to hear the second appeal without formulating a substantial question of law in light of the provisions contained in Section 100 CPC has been reiterated in Panchugopal Barua V. Umesh Chandra Goswami, Sheel Chand V. Prakash Chand, Kanai Lal Garari V. Murari Ganguly, Ishwar Dass Jain V. Sohan Lal, Roop Singh V. Ram Singh, Santosh Hazari V. Purushottam Tiwari, Chadat Singh V. Bahadur Ram, Sasikumar V. Kunnath Chellappan Nair, C.A. Sulaiman Vs. State Bank of Travancore, Bokka Subba Rao V. Kukkala Balakrishna, Narayanan Rajendran V. Lekshmy Sarojini and Municipal Committee, Hoshiarpur V. Punjab SEB."
21.Sub-section (5) of Section 100 of the Code of Civil Procedure reads as under:-
"(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be 12 recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. "
In view of the provisions contained in Sub-section (5) of Section 100 CPC and the observations made by the Hon'ble Supreme Court in the case of Hardeep Kaur (Supra) and in view of the fact that the plaintiff has brought the suit for evicting the defendant under the provisions of B.B.C. Act and also in the light of discussion made above, I feel no hesitation to hold that substantial questions of law, as framed by this Court under the heading '(a), (b) & (c)' at the time of admission of this appeal, are not the substantial questions of law to be answered for just decision of this appeal.
22.The 4th substantial question of law, framed under the heading '(d)' is a question purely based on facts, and that has concurrently been answered by both the courts below.
23.In view of the judgment cited by the respondent, re- appreciation of evidence to decide the question of fact in the second appeal is unwarranted. I have already referred in preceding paragraphs, the concurrent finding available on record that relation of landlord and tenant between the plaintiff and the defendant exist and the evidence available on record clearly indicates that the defendant became defaulter in making payment of rent from the month of September, 1980 and the suit has also been decreed for recovery of arrears of rent.
24.In view of the discussions made above, I do not find any merit in this appeal. The judgment and decree passed by the learned courts below are hereby upheld and the appeal, accordingly, stands dismissed.
(D. N. Upadhyay, J.) Jharkhand High Court, Ranchi, 9th October, 2015 Sanjay/NAFR