Jharkhand High Court
Sardar Indrajit Singh & Ors vs Azima Khatoon & Ors on 9 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 S.A. No. 128 of 2002
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.128 of 2002
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Sardar Indrajit Singh & Ors.
.... .... .... Appellants
Versus
Azima Khatoon & Ors. .... .... .... Respondents
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For the Appellants : Mr. Sachi Nandan Das, Advocate
: Mr. Om Prakash Singh, Advocate
For the Respondents : Mr. Jai Prakash, Sr. Advocate
: Ms. Omiya Anusha, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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Order No.11 Dated- 09.11.2022
Heard the parties.
It transpires that the respondent no. 1(a) has died and the learned counsel for the appellant submits that the respondent no. 1(d) has also died.
Registry is directed to mention the word dead against the respondent no. 1(a) and 1(d) in the cause title of the appeal memo with red ink.
Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 1 S.A. No. 128 of 2002 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.128 of 2002 ------ 1. Sardar Indrajit Singh, son of Late Amar Singh 2(a) Gyan Kaur 2(b) Harvinder Singh
[Serial no. 2(a) widow and 2(b) son of Late Sardar Harbhajan Singh @ Sardar Habhajan Singh Saluja, both resident of 67 Gandhi Road, Dhanbad, P.S. -Dhansar, P.O. -Dhanbad, District -Dhanbad .... .... .... Appellants Versus 1(a) Dead (Expunged vide order dated 09.11.2022) 1(b) Abdul Bari Ansari 1(c) Abdul Rashid Ansari [Sl. No. 1(b) & 1(c) both sons of Late Abdul Gani] 1(d) Dead (Expunged vide order dated 09.11.2022) 1(e) Sultan Khatoon, daughter of Late Abdul Gani All are residents of Waseypur, Pergana -Jharia, Sub-registry, P.O. & P.S. -Dhanbad, District -Dhanbad.
.... .... .... Respondents
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For the Appellants : Mr. Sachi Nandan Das, Advocate : Mr. Om Prakash Singh, Advocate For the Respondents : Mr. Jai Prakash, Sr. Advocate : Ms. Omiya Anusha, Advocate PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:-
1. Heard the parties.
2. This second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 23.07.2002, passed by the Additional District Judge -III, Dhanbad in Title Appeal No. 42 of 1987 whereby and where under by a judgment of reversal, the learned first appellate court allowed the appeal and set aside the judgment and decree of dismissal of the suit passed by the learned trial court being the 4th Subordinate Judge, Dhanbad in Title Suit No. 66 of 1981/2 of 1986 dated 14.04.1987 and directed the 2 S.A. No. 128 of 2002 respondents to vacate the tenanted premises within 90 days from the date of the judgment.
3. The case of the plaintiffs in brief is that the tenanted premises belonged to Ram Dular Jaiswara who purchased the tenanted premises by deed of sale no. 276 of 1943 and constructed the premises described in Schedule 'A'. The defendants were inducted as tenants by Ram Dular Jaiswara in respect of Schedule 'B' premises of the plaint which is part and parcel of the premises described in Schedule 'A' of the plaint on a monthly rent of Rs.350/- per month.
Ram Dular Jaiswara by a registered deed of sale dated 15.01.1975 sold the land and premises described in Schedule 'A' of the plaint along with the premises described in Schedule 'B' of the plaint to the plaintiff and delivered possession of the same to the plaintiff since 15.01.1975 and thus since 15.01.1975, the plaintiff became the owner of the tenanted premises. After the said sale, Ram Dular Jaiswara by registered notice through his Advocate informed the defendant - appellants of the sale of the land to the plaintiff and advised the defendants to pay the rent in respect of the premises occupied by the defendants mentioned in Schedule 'B' of the plaint at the rate of Rs.350/- per month to the plaintiff and the plaintiff also through his Advocate informed the defendants of the aforesaid purchase and demanded payment of the monthly rent by notice dated 13.02.1975. As in-spite of the said notice, the defendants did not pay the monthly rent to the plaintiff, the plaintiff filed the suit with the following reliefs:-
(a) A decree be passed in favour of the plaintiff against the 3 S.A. No. 128 of 2002 defendants for declaration of plaintiff's title over the premises described in Schedule 'A' of the plaint and for Khas possession of the premises described in Schedule 'B' of the plaint by evicting the defendants therefrom.
(b) A decree be passed in favour of the plaintiff and against the defendants for a sum of Rs.12,600/-.
(c) Costs of the suit.
(d) For other reliefs.
4. In their written statement, the defendants challenged the maintainability of the suit on various technical grounds. The defendants further pleaded that Basanti Devi, who claims to be the widow of Late Bhaglu Ram Jaiswal claims herself to be the sole owner of the suit property which fact is known to the plaintiff also. The defendants did not acknowledge the right, title, interest and possession of the plaintiff over the suit property. The defendants also denied their liability to pay Rs.12,600/- or any amount of the arrear. The defendants further pleaded that they were inducted to the tenanted premises by Late Bhaglu Ram Jaiswal on taking Rs.6,000/- by way of advance; for a monthly rent of Rs.125/- and later on Bhaglu Ram Jaiswal also inducted the defendants to another room on a monthly rent of Rs.50/-. It is further submitted that Basanti Devi filed H.R.C. Case No. 40 of 1979 and in presence of the plaintiff who was made a party to the proceeding, the concerned court directed the defendants to pay monthly rent of Rs.300/- per month to the said Basanti Devi. The defendants preferred an appeal vide H.R.C. No. 4 of 1980 and the plaintiff also preferred an appeal vide H.R.C. No. 3 of 4 S.A. No. 128 of 2002 1980. The Deputy Commissioner while dismissing both the appeals confirmed the order of the House Rent Controller with the modification that the amount of rent will be deposited by the defendants to the court of Controller and he may keep the amount of the rent so to be deposited with him until the decision of the title of the house property in question by a competent court. The defendants thereafter filed Revision in the court of Commissioner, North Chota Nagpur Division vide House Control Revision No. 6 of 1981 and the plaintiff was also made a party to the Revision.. The Revision of the House Controller Revision No. 6 of 1981 was also rejected by the Commissioner, North Chota Nagpur Divison. The defendants filed Civil Writ Petition being C.W.J.C. No. 1796 of 1981 and the plaintiff was respondent no.5 in the said application. By the time of filing the written statement on 29.11.1982, the C.W.J.C. No. 1796 of 1981 was pending before the Court.
5. On the basis of the rival pleadings, the learned trial court framed the following seven issues :
(1) Has the plaintiff got any cause of action for the suit?
(2) Is the suit maintainable?
(3) Is the suit barred by limitation?
(4) Is the suit barred by principle of waiver, estoppels and acquiescence?
(5) Is there any relationship of Landlord and Tenants between the parties with respect to the disputed house?
(6) Are the defendants liable to be evicted from the suit premises and is the plaintiff liable to get a decree for 5 S.A. No. 128 of 2002 arrears of rent?
(7) Whether the plaintiff is entitled to the decree as prayed for and if so to what?
6. The learned trial court first took up issue no. 5 and came to the conclusion that the plaintiff has not been able to establish the relationship of landlord and tenant between the plaintiff and defendants and there is dispute of ownership of title over the disputed premises between the plaintiff and the defendants. The question of title cannot be decided in the case of eviction and decided the issue against the plaintiff. The learned trial court thereafter took up issue no.1 and held that the plaintiff has got no cause of action for the suit without getting his title declared from the competent court of Civil Jurisdiction and decided the issue against the plaintiff. Thereafter the learned trial court took up issue no.2 and held that the suit is not maintainable. In respect of issue no.3, it was observed that the issue was not pressed; hence the suit is not barred by limitation. In respect of issue no.4 taken thereafter, the learned trial court held that the said issue was not pressed; hence the suit is not barred by principle of acquiescence, waiver and estoppels. The learned trial court next took up issue no.6 and held that the plaintiff is not entitled to get a decree of eviction in the present suit without getting his title declared from the court of competent jurisdiction and the plaintiff cannot get a decree for eviction in the present suit. The learned trial court lastly took up issue no.7 and held that the plaintiff is not entitled to get a decree for eviction as prayed for till the title is declared by a competent court of law and dismissed the suit on contest but without 6 S.A. No. 128 of 2002 costs.
7. Being aggrieved by the judgment and decree passed by the trial court, the plaintiff-appellants filed Title Appeal No. 42 of 1987 in the Court of District Judge, Dhanbad, which was ultimately heard and decided by the first appellate court through the impugned judgment and decree.
8. The learned first appellate court formulated the sole point for determination as under:-
"Whether relationship of landlord and tenant exists between the appellant and respondent".
9. The learned first appellate court took note of the fact that the trial court has itself found Ram Dular Jaiswara the vendor of the plaintiffs to be the owner of the tenanted premises as his name was recorded in the Revenue Records. The learned first appellate court found fault with the trial court in arriving at a conclusion that merely because Bhaglu Ram Jaiswara was managing the tenanted premises, the true owner of the premises Ram Dular Jaiswara cannot be accepted as the owner of the tenanted premises. Referring to the definition of landlord as defined under Section 2(f) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 the learned first appellate court observed that the definition of landlord therein being an inclusive one, such definition of landlord does not exclude the owner of the premises. The learned first appellate court also found fault with the trial court by observing that the trial court by coming to a conclusion that Ram Dular Jaiswara has no control over the tenanted premises only because in a written statement filed in a proceeding 7 S.A. No. 128 of 2002 under Section 145 Cr.P.C., Bhaglu Ram Jaiswara has stated so and keeping in view the undisputed fact that Ram Dular Jaiswara was owner of the tenanted premises till he sold the same to the plaintiff, hence held that the plaintiff is the owner and title holder of the tenanted premises and keeping in view the undisputed fact that the defendants are the tenants of the tenanted premises, as it is admitted case of the defendants that they are not paying the rent of the tenanted premises to the plaintiff because of dispute in title of the tenanted premises. The learned first appellate court also observed that the sale deed executed by Bhaglu Ram Jaiswara in favour of the son of Basanti Devi namely Shanker Ram was in respect of Holding No. 315 whereas the Holding Number of the tenanted premises is 340 and went on to hold that the relationship of landlord and tenant exists between the appellants and the respondents and allowed the appeal and passed the orders for vacation of the tenanted premises as already indicated above.
10. At the time of admission of this appeal, the following substantial questions of law were formulated vide order dated 24.04.2003:-
"(i) Whether the court of appeal below has committed grave error of law in reversing the judgment of the trial court without discussing the evidence and without meeting the reasoning given by the trial court?
(ii) Whether the judgment of the lower appellate court is vitiated in law for not following the provisions of Order 41 of the Code of Civil Procedure?"8 S.A. No. 128 of 2002
11. Mr. Sachi Nandan Das, the learned counsel for the appellants submits that the finding of the learned first appellate court is based on no evidence and is perverse as there is no evidence in the record that the vendor of the original plaintiff inducted the defendants as tenants at any point of time. It is next submitted by Mr. Das that the learned first appellate court has committed a grave error of law in reversing the judgment of the learned trial court without meeting the reasoning given by the learned trial court. It is then submitted by Mr. Das that the learned first appellate court overlooked pleadings of the plaintiff and the defendants as also the evidence in the record particularly the claim of Smt. Basanti Devi, widow of Bhaglu Ram Jaiswara who preferred H.R.C. Case No. 40 of 1979. Hence, it is submitted that the impugned judgment and decree passed by the learned first appellate court be set aside and the impugned judgment and decree passed by the learned trial court in Title Suit No. 66 of 1981/2 of 1986 be restored.
12. Mr. Jai Prakash, the learned senior counsel for the respondents on the other hand defends the impugned judgment and decree and submits that keeping in view the undisputed fact that Ram Dular Jaiswara was the owner of the tenanted premises and the undisputed fact that he transferred the right, title, interest and possession over the tenanted premises to the plaintiff by way of executing a registered sale deed, the only consequence is that, the plaintiff stepped into the shoes of the transfer and acquired all the rights which the transferer has and it is the undisputed fact that both the vendor of the plaintiff being Ram Dular Jaiswara and the plaintiff 9 S.A. No. 128 of 2002 have advised and intimated the tenant to pay the rent of the tenanted premises to the plaintiff but even after that, the defendants having not paid the rent on the pretext of existence of a dispute of title in respect of the tenanted premises, the learned first appellate court has rightly allowed the appeal of the plaintiff and passed the order of eviction.
Mr. Jai Prakash, the learned senior counsel for the respondents, relying upon the judgment of a coordinate Bench of this Court in the case of Suresh Singh And Anr. vs. Smt. Arit Choubey And Anr., reported in 2006 (3) JCR 47 (Jhr), para -10 & 11 of which reads as under:-
"10. Having heard learned Counsel for the parties and considered their submissions and materials available on record, I find that the learned Court below has not entered into and decided any complicated issue of title and ownership. In fact the tenants-petitioners had not claimed any ownership or their own title over the suit premises rather they have admitted themselves as tenant. On perusal of the affidavit filed seeking leave to contest the suit, I find that they have made specific statement that they had been paying rent to Shri Kameshwar Choubey who was collecting the same on behalf of his sister, Ram Pyari Devi. The defendants, thereby, admitted that said Ram Pyari Devi was their landlady. It has been rightly argued by the learned Counsel for the opposite parties that once, relationship of landlord and tenant having admitted, the petitioners are estopped from challenging the title of Ram Pyari Devi in view of the provisions of Section 116 of the Evidence Act. Learned Trial Court, having noticed the same, has held that in view of the said admission made by them, the defendants cannot deny the tenancy under Ram Pyari Devi. Learned Trial Court has, thus, come to the finding that the plaintiffs have proved themselves as the owner for seeking eviction on the ground of personal necessity. The Court below has, thus, not decided any complicated issue of title, as has been contended by the learned Counsel for the petitioners, rather he has incidentally discussed and held the plaintiffs as owners entitled to file suit on the ground of personal necessity. The decision of the Supreme Court in Rajendra Tiwary (supra) has got absolutely no application to the facts of this case. The Apex Court, in the said case, has held that the question of title to the suit premises is not relevant having regard to the width of the definition of the terms landlord and tenant in Clauses (f) and (h) respectively of Section 2 of the Act. The sine qua non for granting the relief in the suit under the Act is existence of relationship of landlord and tenant, which was, as aforesaid, admitted by the tenants in the instant case. For the purpose of filing the eviction suit on the ground of personal necessity, ground taken by the learned Counsel for the 10 S.A. No. 128 of 2002 petitioners that the judgment and decree of the learned Trial Court is bad in absence of a finding that the plaintiffs are the landlords as the said Act speaks about landlords and not about the owners and the Court has not given any finding that the plaintiffs are the landlords within the definition of the said Act. In my considered opinion, the contention of the learned Counsel for the petitioners is misconceived. Section 2(f) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 defines landlord as follows: (f) "landlord" includes the person who for the time being is receiving or is entitled to receive rent of a building whether on his own account or on behalf of another, or on account or on behalf of for the benefit of himself and others or as an agent, trustee, executor, administrator, receiver, guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant; From plain reading of the said definition, it is apparent that the definition of landlord does not exclude the owner of the premises who is also entitled to receive rent of his/her building. The ownership is the right indefinite in point of user, and unlimited in point of duration. As defined in Halsburys Laws of England ownership consists of innumerable rights over properties e.g. the rights of exclusive enjoyment, of destruction, alteration and alienation and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing but as merged in one general right of ownership. Thus, the owner includes a person who is receiving or is entitled to receive rent of any building or land, which he or she owns and thus is not excluded from the definition of the landlord as given in Section 2(f) of the said Act.
11. In view of the above, I find no error in the judgment and decree of the learned Court below in using the word owner in place of landlord as landlord within the meaning of Section 2(f) of the said Act includes an owner for the purpose of maintaining an eviction suit. Xxxxxxxxxxxxxxxxx (emphasis supplied) And submits that it is a settled principle of law that the definition of landlord appearing in Section 2(f) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 does not exclude the owner of the premises who is also entitled to receive the rent of his/her building and Section 2(f) of the Act includes the owner for the purpose of maintaining an eviction suit.
To substantiate his submission, the learned counsel for the respondents draws the attention of this Court to the Explanation -I of Section 11 (1)(c) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 which reads as under:-11 S.A. No. 128 of 2002
11. Eviction of tenants -
(1) (c) ... .... ...
Explanation I - In this clause the word "landlord" shall not include an agent referred in clause (f) of Section 2. and submits that in case of eviction on the ground of personal necessity as the Explanation -I excludes the agent and all others who have been included in the definition under Section 2(f) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, So this also shows that the true owner of the land is not excluded from the definition of landlord under Section 2(f) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982.
13. Mr. Jai Prakash further submits that admittedly the respondent no.1(a) -Azima Khatoon and respondent no.1(d) -Halima Khatoon are dead as is evident from the order dated 31.08.2022, passed in I.A. No. 7480 of 2022 and I.A. No. 7503 of 2022, passed by this Court in this appeal on the basis of the interlocutory applications supported by the affidavit of the appellants but as the appellants did not disclose, as to whether they died during the pendency of this appeal or during the pendency of the Title Appeal No. 42 of 1987, hence their prayer for substitution of the legal representatives was not allowed by this Court nor their names were deleted.
It is next submitted by the learned senior counsel for the respondents that the appellants have allowed this appeal to continue at least against two dead persons and as a decree cannot be passed in favour or against a dead person, hence this appeal is liable to be dismissed on this score alone.
It is next submitted by the learned senior counsel for the 12 S.A. No. 128 of 2002 respondents that the learned first appellate court has complied all the requirements of Rule 31 of Order XLI of the Code of Civil Procedure, 1908 by formulating the point for determination, discussing the submissions made before it by the rival parties, considering the facts and law involved in the appeal before it. Hence, by no stretch of imagination, it can be said that the learned first appellate court has violated the provisions of Order XLI of the Code of Civil Procedure, 1908. Hence, it is submitted that this appeal being without any merit be dismissed.
14. Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that undisputedly Ram Dular Jaiswara was the owner of the tenanted premises. His father used to look after the same as agent. In view of the principle of law settled by a Coordinate Bench of this Court in the case of Suresh Singh And Anr. vs. Smt. Arit Choubey And Anr. (Supra), this Court has no hesitation in holding that the definition of landlord as mentioned in Section 2(f) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 does not exclude the owner of the tenanted premises. It is a settled principle of law that a transferee of the landlord's right steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy.
15. It is undisputed fact that the plaintiff has purchased the tenanted premises from the true owner being Ram Dular Jaiswara by a registered sale deed. A Division Bench of Hon'ble Patna High Court in the case of Smt. Kalawati Tripathi and others vs Smt. Damayanti 13 S.A. No. 128 of 2002 Devi and another, reported in AIR 1993 (Patna) 1 has inter alia held as under in para - 19 & 22:-
"19. From the perusal of the aforesaid Section it is clear that after the transfer of lessor's right in favour of the transferee he gets all the rights and liabilities of the lessor in respect of the subsisting tenancy. This Section does not insist that the transfer will take effect only when the tenant attorns. The provisions of this Section give a validity to the transfer made by the lessor with regard to his right in favour of the transferee regarding the subsisting tenancy. The question as to whether the attornment is necessary or not to create a relationship of landlord and tenant between the transferee landlord and tenant came for consideration before the Lahore High Court in the case of Daulat Ram. v. Haveli Sah, AIR 1939 Lahore 49; wherein it was held as follows :-
"A fresh attornment by the lessee to the landlords assignee is not necessary under the Transfer of Property Act."
A Bench of Calcutta High Court had occasion to consider the said question in the case of Pulin Behari Shaw v. Lila Dey (ILR (1958) 2 Cal 427); wherein it was held that under the Indian Law a letter of attornment is not necessary to complete the title of the assignee of the reversion. Again the said question was considered by a Bench of Calcutta High Court in the case of M. C. De and Bros. v. Smt. Gita Sen, 1969 (73) CWN 856, wherein it was held as follows :-
"The second point is the lessor transferring a tenanted house, the tenant does not become the tenant of the transferee, so long as he does not attorn to the transferee as his new landlord by paying rent to such a one amicably, or so long as he is not forced to pay rent to such a one by a decree of the court. It completely beats us how a proposition as this can be contended for, in all seriousness. We find no warrant for such an extravagant proposition which throws the transferee landlord at the mercy of a sitting tenant........"
.................... ..............
"The relationship of landlord and tenant is there between the lessee and the lessor's assignee. And still the necessity of a fresh attornment, which means acknowledgement by the lessee of the lessor's assignee as, his landlord. It looks like acknowledging then the fact that the sun rises on the east".
.......... ..........................
"The title of the assignee is complete. What does that mean? Since the assignment, the assignor goes out, divested of his title, and ceases to be the landlord; comes in the assignee vested with his assignor's title:
the title of the landlord. So, the assignee is the landlord, and still attornment afresh: What sort of a landlord does he become then?"
The said question was considered by a learned single Judge of this Court in the case of Dinesh Kumar Purbey v. Mahesh Kumar Poddar, 1991 (1) PLJR 650, wherein it was also held that in a case of eviction of the tenant on the ground of personal necessity, an attornment by lessee is not necessary for creating a relationship of landlord and tenant between the transferee of the landlord and the tenant and observed as follows :-
"In my considered opinion, attornment is not a necessary condition 14 S.A. No. 128 of 2002 to create landlord tenant relationship between the parties. It has no bearing whatsoever in cases of eviction on the ground of personal necessity. The transfer takes place with all incidents of right, title and interest of the lessor and the transferee is entitled to sue the existing tenant on the ground of personal necessity even if the tenant has not attorned to his tenancy under him."
22. In the present case the case of the defendants is that in pursuance of an agreement for sale the defendants paid part of the consideration money to Ramesh Prasad, the owner of the property, and he was allowed to continue in possession as a transferee and not as a tenant from the date of the agreement for sale. Even according to the defendants the aforesaid contract is not in writing signed by the owner Ramesh Prasad or any person on his behalf. The contract in writing is a sine qua non for applicability of the doctrine of part performance. In absence of the same a party cannot be allowed to raise a plea of part performance and the trial court rightly rejected the claim of the defendants petitioners on this ground. There is another reason also to reject the aforesaid submission made on behalf of the petitioners. In a suit for eviction when the tenant raises a question of title or even a plea of part performance, the jurisdiction of the court to decide the suit for eviction is not ousted. It is well settled that when such a plea is raised by the tenant the court can go into the question incidentally for the purpose of deciding the main question in the suit, i.e., as to whether there is relationship of landlord and tenant between the parties or not. If the court wants to decide the question of title in a full-fledged manner in that case only the court will direct the plaintiffs to pay ad valorem court-fee and then it will decide the question of title. In the present case the court below in paragraphs 17 and 18 of its judgement has considered the plea of part performance as raised by the defendants incidentally and has rejected the same on two grounds, namely, (1) there was no written contract between the parties and (2) that plea was not tenable on merit. (Emphasis supplied)
16. It is a settled principle of law that after the transfer of lessor's right in favour of the transferee, the transferee gets all the rights and liabilities of the lessor. It is also well settled that when a plea of title is raised by the tenant, the court can go into the question incidentally for the purpose of deciding the main question in the suit i.e. as to whether, there is relationship of landlord and tenant between the parties or not. So far as the contention of the appellants regarding the reasoning given by the trial being not met by the first appellate court is concerned, the same do not have any force as it is a settled principle of law that it is open to the first appellate court to consider the evidences adduced by the parties and give its own reasons for accepting the evidences on one side or rejecting the evidences on the other side. It is not permissible for the second appellate court to interfere with such finding of the first appellate court only on the 15 S.A. No. 128 of 2002 ground that the first appellate court had not come to grips with the reasoning given by the appellate court as has been held by the Hon'ble Supreme Court of India in the case of Arumugham v. Sundarambal, (1999) 4 SCC 350, wherein the Hon'ble Supreme Court held as under in paragraph 14:
"14. From the aforesaid judgment of the three-Judge Bench in Ramachandra Ayyar it is clear that this Court held that the second appellate court cannot interfere with the judgment of the first appellate court on the ground that the first appellate court had not come to close grips with the reasoning of the trial court. It is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. It is not permissible for the second appellate court to interfere with such findings of the first appellate court only on the ground that the first appellate court had not come to grips with the reasoning given by the appellate trial court. ..."(Emphasis Supplied)
17. Under such circumstances, this Court finds that there is no perversity in the finding of fact arrived at by the learned first appellate court that the relationship of landlord and tenant exists between the appellants and the respondents before the learned first appellate court who are respectively the plaintiff and defendants in the suit and the court of appeal has not committed any grave error of law in reversing the judgment of the learned trial court without discussing the evidence and without meeting the reasoning given by the trial court.
Thus, the first substantial question of law as to whether the court of appeal below has committed grave error of law in reversing the judgment of the trial court without discussing the evidence and without meeting the reasoning given by the trial court is answered in negative.
18. So far as the second substantial question of law as to whether the judgment of the first appellate court is vitiated in law for not following the provisions of Order XLI of the Code of Civil Procedure 16 S.A. No. 128 of 2002 is concerned, it is a settled principle of law that the appellate court's jurisdiction involves a rehearing of the appeal on the questions of law as well as facts. The judgment of the appellate court must therefore reflect conscious application of mind and record the findings supported by reasons in respect of the issues along with the contention put forth and pressed by the parties as has been held by the Hon'ble Supreme Court of India in the case of Manjula & Ors. v.
Shyamsundar & Ors. reported in (2022) 3 SCC 90, paragraph no. 8 of which reads as under :-
"8. Section 96 of the Civil Procedure Code, 1908 (for short "CPC") provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state:
(a) points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment."
19. Now coming to the facts of the case, the learned first appellate court has formulated the points for determination, reheard the appeal on questions of law as well as fact, the impugned judgment passed by the learned first appellate court reflects the conscious application of mind and the learned first appellate court has recorded the findings supported by reasons for its decision in respect of the issues along with the contentions put forth and pressed by the parties. 17 S.A. No. 128 of 2002
20. In view of the above, this Court is of the considered view that the Judgment of the learned first appellate court is not vitiated in law for not following the provisions of Order XLI of the Code of Civil Procedure. The second substantial question of law, as to whether the judgment of the first appellate court is vitiated in law for not following the provisions of Order XLI of the Code of Civil Procedure, is answered in the negative.
21. In view of the discussions made above, this court do not find any merit in this appeal accordingly this appeal is dismissed on contest, but under the circumstances without any costs.
22. Let a copy of this Judgment along with Lower Court Records be sent back to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 9th November, 2022 AFR/ Sonu-Gunjan/-