Patna High Court
Sudhir Kumar Chatterjee And Ors. vs B.N. Sinha on 14 September, 1994
Equivalent citations: 1995(2)BLJR745
JUDGMENT Banwari Lal Yadav, J.
1. This is a plaintiffs Second Appeal under Section 100 of the Civil Procedure Code, 1908 (compendiously "the Code") in a suit for eviction of the defendant respondent from the suit premises and for recovery of the arrears of rent of Rs. 675.
2. The plaintiffs appellants have filed the suit claiming that the suit premises. (Holding No. 46 of old Ward No. 8 and New Ward No. 15 of Purnea Municipality) belongs to the plaintiffs and that the defendant was admitted as a tenant on a monthly rent of Rs. 75/-. The rent was being paid by the defendant to Sudhir Kumar Chatterjee (plaintiff appellant No. 1) and the defendant used to get receipt of the same. It is asserted that the defendant committed breach of condition of the tenancy and erected a pucca Khaparposh shed and placed attached hut in the suit premises and also established a printing press without any permission from the plaintiffs-landlords, and that the defendant also cut away several trees situate in the compound of the suit premises. Since August, 1982 the defendant defaulted in making payment of the rent to the plaintiffs. Hence the plaintiffs had no other option but to file the instant suit with the aforesaid reliefs.
3. The averments made in the suit and relationship of landlord and tenant between the plaintiffs and the defendant were denied by the defendant-respondent. Even though it was admitted that the defendant-respondent was a tenant of the plaintiffs-appellants at the fate of only Rs. 60/- per month, but no receipt was given to the defendant. It is further asserted on behalf of the defendant that on the Ist of June, 1971 the plaintiff himself agreed to get the repairs of the suit house done and agreed to sell the suit premises to the defendant on a consideration Rs. 30,000/-. Out of that, a sum of Rs. 10,000/- was paid to plaintiff No. 1. Thereafter 50 per cent of the amount was paid on 19.11.71 and on 13.1.72 by a cheque drawn on the Bank of Baroda, Purnea and so on. The defendant did not violate any condition of tenancy and was not in arrears of rent, and consequently the suit was liable to be dismissed.
4. The trial court framed seven issues, four of which are given below:
(i) Whether the defendant has got title over the suit land, as alleged by him?
(ii) Whether there is any relationship of the landlord and tenant between the plaintiffs and the defendant?
(iii) Whether the defendant has committed any fault in giving rent; and
(iv) Whether the plaintiffs are entitled to get a sum of Rs. 675/- as arrears of rent?
5. The trial court, after considering the evidence of the parties and the materials on record, held that the suit was maintainable and in respect of the issues that whether the defendant has got any title over the land in dispute and whether the same still subsists, it was held that the defendant has not proved his title over the suit land on the basis of any alleged agreement for sale and that the relationship of the landlord and tenant between the plaintiffs and defendant still subsists, and ultimately it was held that the plaintiffs were entitled to the reliefs claimed by them. Accordingly, the suit was decreed in favour of the plaintiffs and the defendant was directed to give vacant possession of the suit house to the plaintiffs within a period of two months from the date of the order.
6. Against the said judgment and decree of the trial court a First Appeal was filed before the learned District Judge, Purnea. The appeal was, however, heard by the 7th Additional District Judge, Purnea and the same was allowed, the judgment and decree of the trial court was set aside and the suit was dismissed.
7. The present Second Appeal has been filed by the plaintiffs. The learned Counsel for the appellants has urged that the plaintiffs-appellants did not agree for transfer of the suit premises to the defendant, nor there was any such agreement on 1.6.1971 and the payment of the amount alleged to be made by the defendant was also denied. It was also urged that the instant suit was filed for the relief under Section 11 of. the Bihar Buildings (Lease, Rent and Eviction) Control Act (for short "the Act"), as there has been breach of condition of the tenancy, inasmuch as the defendant has raised construction and cut away 'the orchard and trees which were standing in the compound of the suit premises. The stand of the tenant cannot be converted into ownership of the house of the plaintiffs or the landlord unless the plaintiffs agree to sell the same and it is transferred in favour of the defendant. But the ownership with all its characteristics was not proved by the defendant. The necessary corollary is that a tenant cannot become owner. The substantial question of law was involved in the Second Appeal and the said question has been incorrectly decided.
8. On the other hand, the learned Counsel for the defendant-respondent refuted the Submissions of the learned Counsel for the appellants and has urged that the agreement for sale made on 1.6.1971 was proved and the defendant has been paying the consideration amount agreed upon between the parties, and that there is no relationship of landlord and tenant between the plaintiffs and the defendant. No substantial question of law is involved and no ground for interference has been, made out in the exercise of jurisdiction under Section 100 of the Code.
9. Having scrutinised the submissions of the learned Counsel for the parties, the substantial questions of law which fall for determination is as to whether on the facts and in the circumstances of the case the status of the defendant as tenant has changed and he became owner of the suit house and whether the relationship of landlord and tenant still continues, and whether any substantial question of law is involved.
10. As regards the first point, a perusal of the judgment of the courts below would indicate that no finding has been recorded that the status of the defendant as tenant has changed and he became an owner. The alleged agreement made on 1.6.1971 was pleaded in the written statement but it has not been proved. An agreement is the expression of common intention by two or more parties, with a view to change the legal relations. Even assuming that mere was any such agreement, as pleaded by the tenant, but it was not proved. Even assuming it, the tenant could file a suit for specific performance of contract within a period of three years from the date of. agreement for its enforcement, but the same was not done. Consequendy, the alleged agreement without its proof is of no legal effect.
11. The instant suit was filed under Section 11 of the said Act on the ground that there was breach of conditions of tenancy and that the defendant was in arrears of rent. The Act is self contained code so far as the relationship of the landlord and tenant is concerned. It was held by the trial court that the defendant has committed breach of conditions of the tenancy by raising construction and by cutting the branches of the trees of the suit premises. But the lower appellate court did not record any finding that there was no breach of condition of the tenancy and the status of the defendant as tenant has changed and he became the owner of the suit premises on the basis of any sale deed, (even though there was no such sale deed pleaded or proved) and that the defendant does not continue to be a tenant. The matter can be angulated from another perspective from the concept of ownership: R.W.M. Dias in his admirable treatise "Jurisprudence", 4th Edition, page 395 had defined ownership as consisting of an innumerable number of claims, liberties, powers and immunities with regard to thing owned. According to Maitland the first use of expression "owner" was made in 1340 and "ownership" in 1583 A.D. (See Pollock and Maitland, History of English Law). Subsequent development, however, indicates that it was equated with "better right" to obtain or retain possession.
12. In Salmond's Jurisprudence (7th Edition, Pages 277 to 279) there is following statement about 'ownership'.:
Ownership in its most comprehensive signification denotes the relation between a person and any right that is vested in him. That which a man owns in this sense is in all uses a right.
Ownership is, therefore, "incorporeal". He then went on to say that ownership of physical objects was a figure of speach. What is meant is that certain claims etc. are vested in a person. We identify by way of metonymy the right with the material thing which is its object.
Austin's Jurisprudence II page 790, however, defines ownership as follows:
A right-Indefinite in point of user-unrestricted in point of disposition and unlimited in point of duration over a determinate thing.
In Hold Worth's History of English Law (ii, 78, vii-4, 58-61) there is following statement about ownership:
Early law does not trouble itself with complicated theories to the nature and meaning of ownership and possession. English law, on the contrary reached the conception of ownership as an absolute right, through developments in the law of possession.
Roman Law spoke of "dominion" as the absolute right to a thing, "possession" denoting rather mere physical control.
13. In G.W. Paton's Text Boom of Jurisprudence (3rd Edition page 472) ownership has been defined as follows:
For most purposes of jurisprudence it is convenient to define ownership in terms of relationship between persons with respect to a res which can be thought of as property. In respect of property it is the owner's power to exclude or permit others to enjoy the res, the object of the rights.
14. Keeping in view the aforesaid statements of law, in my opinion "ownership" means an absolute right to a property or thing, with the owner's power to exclude or permit others to enjoy the res or object of the rights.
15. In the present case the defendant respondent has no absolute rights of ownership in its true sense. He can be in possession as a tenant but cannot become its owner, unless the agreement of sale was proved according to law and he actually purchased the property, i.e. house and other things, the. defendant-respondent continues to be a tenant and that he has committed breach of conditions of the tenancy. There was default for more than two months in making payment of rent by the defendant-respondent. Consequently the suit was decreed by the trial court, as the status of the defendant continued to be a tenant, and he failed to prove the alleged agreement for sale and he did not acquire the absolute right of ownership. An ownership cannot be acquired just by assumption. It has to positively proved and acquired. The defendant as tenant was by found to pay the arrears of rent and is liable to be evicted. In my opinion, the lower appellate court failed to consider and record a finding as to how the status of a tenant was converted or matured into the status of absolute rights of an owner. A substantial question of law is in my opinion, involved and the same has incorrectly been decided by the lowers appellate court. The degree of the lower appellate court, therefore, deserves to be set aside.
16. In view of the premises aforesaid, this Second Appeal succeeds and the same is allowed. The decree of the lower appellate court dated the 20th of February, 1990 is hereby set aside and that of the trial court resorted. The suit is decreed but with no order as to costs.