Patna High Court
Gopal Singh @ Gopal Prasad Sin vs Prafulla Chandra Gupta & Ors on 18 June, 2014
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.88 of 2000
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Gopal Singh @ Gopal Prasad Singh Son of Late Akhandi Singh, resident of village-
Madhurapur Purbari Tola, Pergana Imadpur, P.S. Anchal Teghra P.O. Madhurapur,
District- Begusarai
.... .... Appellant
Versus
1. Prafulla Chandra Gupta , Son of Late Badri Sah @ Badri Lal Gupta, resident of
village - Narsinghpur Sogarhatta, Pergana Malki, P.S. Fulwaria, P.O. Barauni,
Anchal and Sub- Registry- Teghra, Sub-division and District Begusarai
2. Sri Janardan Singh Son of Chando Singh
3. Rajeev Singh
4. Ranjeet Singh, both sons of Late Akhandi Singh, all residents of Village,
Madhurapur, Purbari Tola Pargana Imadpur PS Anchal Teghra PO Madhurapur
District Begusarai at present resident of village Sogardha, PS Fulwaria Pergana
Malki PO Barauni District Begusarai
.... .... Respondents
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Appearance :
For the Appellant : Mr. Binod Kumar Singh
For the Respondents: Mr. Ganpati Trivedi, advocate
Mr. Manoj Kumar Sinha, advocate
Mr. R. K. Sinha, No.1, advocate
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
CAV JUDGMENT
Date: 18 -06-2014 This second appeal under section 100 of the Code of Civil Procedure is directed against the judgement and decree dated 23.12.1999 passed by learned VIth Additional District Judge, Begusarai in M.T. A. No. 4 of 1989/ 7 of 1994, whereby he has reversed the judgment and decree dated 13.01.1989 passed by learned Munsif II, Begusarai in T.S. (Eviction) No. 152 of 1984/ 171 of 1987. Learned Munsif II, Begusarai after coming to a conclusion that there was no relationship of landlord and tenant between the plaintiff and defendants had held that, Patna High Court SA No.88 of 2000 2 therefore, there was no occasion to go into the question of personal necessity of the plaintiff or recovery of default in payment of amount of rent. Learned trial court, accordingly, dismissed the suit. Reversing the findings of the trial court, learned lower appellate court in its impugned judgement came to a finding that the plaintiff was the landlord of the suit house and the defendants, the tenants of the said house and, accordingly, decreed the suit in favour of the plaintiff. The defendant No.2 before the court below is, thus, appellant in the present second appeal.
2. I have heard Mr. Binod Kumar Singh, learned counsel for the appellant and Mr. Ganpati Trivedi, learned counsel appearing on behalf of the respondents at length. The parties have also filed their written notes of arguments which are there on record.
3. The plaintiff-Prafulla Chandra Gupta (respondent No.1) instituted the Eviction Suit No. 152/1984 seeking eviction of Janardan Singh (defendant No.1), Gopal Singh (defendant No.2), Rajeev Singh (defendant No.3) and Ranjit Singh (defendant No.4) from the suit premises. The said Janardan Singh, Rajeev Singh and Ranjit Singh are respondents No. 2, 3 and 4 respectively, in the present second appeal whereas the Patna High Court SA No.88 of 2000 3 plaintiff-Prafulla Chandra Gupta is respondent No.1. Defendant No.2- Gopal Singh is appellant herein.
4. It was the plaintiff's case before the trial court that Akhandi Singh and Janardan Singh had taken the suit premises, as described in schedule-I of the plaint, in the year 1971 from the plaintiff's father Badri Lal Gupta on monthly rental of Rs. 150/-, on the basis of an oral agreement with certain terms and conditions, which included that the defendants would pay the rental to the plaintiff by last day of the month and in default they would vacate the premises within 15 days thereafter. It was also agreed upon that in case of personal necessity of the plaintiff; the defendants would vacate the suit premises. The agreement is said to have further included that the defendants would not make any alteration in the suit premises and, if required, it would be done by the plaintiff. It was further pleaded that the defendants thereafter started their transport business in the name and style of Jawahar Transport Agency. The said Akhandi Singh died leaving behind him his sons, namely, Gopal Singh, Rajeev Singh and Ranjit Singh (defendants No. 2 to 4; respondents No. 2 to 4). The original landlord Badri Lal Gupta also died leaving behind his sons, namely, Devi Lal Gupta, Girish Chandra. Gupta, Ram Prakash Gupta and Prafulla Chandra Gupta (the plaintiff) in Patna High Court SA No.88 of 2000 4 jointness. It was further pleaded that Girish Chandra Gupta became Karta of the family and defendants started paying rent to him. Upon death of Badri Lal Gupta they apprehended partition in the family and, therefore, requested the defendants to vacate the suit premises on 01.04.1983 as they required it for their personal need. It was further case of the plaintiff that the defendants agreed to vacate the suit premises by end of the year 1983 but they failed to vacate the premises as promised by them. On 18.06.1983, sons of Badri Lal Gupta separated from each other and in an amicable partition among the sons of Badri Lal Gupta, the suit premises fell in the share of Prafulla Chandra Gupta (respondent No.1).
5. As per the plaintiff's case, after partition, he requested the defendants to vacate the suit premises as he needed it for his residential and business purpose. The defendants though promised to vacate the house but somehow or the other they prolonged the matter. Finally, the plaintiff and defendants are said to have agreed for enhancement of rental to Rs. 400/- per month with the condition that other terms of oral agreement shall remain the same and thus they were allowed to continue as tenants. The defendants are said to have paid rent up to July 1983 at the rate of Rs. 400/- per month. The defendants Patna High Court SA No.88 of 2000 5 thereafter said to have defaulted in making payment of agreed amount leading to issuance of legal notice by the plaintiff to the defendants which they refused to accept. With these pleadings the plaintiff filed the suit for evicting the defendants from the suit premises on the ground of personal necessity as, according to him, the building was required for his own occupation; as also on the ground of default in payment of rent.
6. The defendants No. 1, 3 and 4 did not contest the suit. Defendant No.2, Gopal Singh by seeking leave under section 14(4) of Bihar Building (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as the Act) contested the suit by filing his written statement. He denied the relationship of landlord and tenant between plaintiff and defendant No.2 and disputed the fact that rent was ever paid to the plaintiff on the basis of alleged tenancy. The said Gopal Singh, appellant herein, claimed ownership over the suit premises on the ground that the suit property was purchased by his great grand father, Laxmi Singh, from the recorded tenant Damri Rai on the basis of oral sale in the year 1911 for consideration of Rs. 15/-. Damri Rai is said to have delivered possession of the land to great grand father of defendant No.2, Laxmi Singh and had granted receipt acknowledging the oral Patna High Court SA No.88 of 2000 6 sale. The ex-landlord, Mahabir Prasad, also recognized Laxmi Singh as tenant and granted rent receipts. According to the defendants, the said land was a ditch which was filled by their great grand father who had constructed a Khaprail house thereon. Chandradeo Singh, son of Laxmi Singh, thereafter started living with his family therein, along with his father and continued to live even after his death with his son Akhandi Singh. According to defendant No.2 (the appellant herein); Akhandi Singh started transport business in the name and style of Jawahar Transport Agency, Sokhara and for the purpose of expansion Akhandi Singh constructed a pucca house in front of the said Khaprail house and started running business therein. After the death of Akhandi Singh in the year 1976, his son Gopal Singh (the appellant) had been running the transport business. According to defendant No.2/ appellant, Akhandi Singh got Chowkidari receipts for the said premises, installed electric connection, telephone connection and paid electricity bills reserving his right as owner and possession thereon with full title. Defendant No.2/ appellant also asserted that defendant No.1 had gone in collusion with the plaintiff and any admission by defendant No.1 would not be binding upon defendant No.2.
7. After completion of the pleadings, the trial court Patna High Court SA No.88 of 2000 7 framed altogether six issues including issues No. 3, 4 and 5 which are the main issues and are being extracted hereinbelow:-
"(iii) Whether plaintiff is the landlord of the suit premises
(iv) Whether there is relationship of landlord and tenant between the plaintiff and defendants
(v) Whether the building was reasonably in good faith required by the landlord for his own occupation."
8. Parties led their evidence in course of trial in the eviction suit. Dealing with issue No. (iii), considering oral and documentary evidence on record, learned trial court come to a finding that as the suit was filed for eviction of the tenant, the court was not required to decide the title of the parties over the suit premises. Dealing with issue No. (iv), learned trial court on the basis of his appreciating of evidence on record came to a conclusion that the plaintiff failed to establish that there was relationship of landlord and tenant between the plaintiff and defendants. Having held so, learned trial court held that question of bonafide requirement for own occupation of the suit premises as envisaged under section 11(1)(c) of the Act was not required to be decided as plaintiff failed to establish that there was any relationship of landlord and tenant.
9. The plaintiff thereafter preferred appeal against the judgement and decree of learned Munsif II, Begusarai in T. S. Patna High Court SA No.88 of 2000 8 (Eviction) No. 152/1984 /171/1987 which was registered as M.T.A. No. 4/1989 / 7/1994 in the court of learned Additional District Judge, VI, Begusarai. Learned lower appellate court, on the basis of pleadings and evidence on record framed two points for consideration, which are as follows:-
"(1) Has the plaintiff succeeded in proving that he is landlord of the suit house and the defendants are his tenants.
(2) Is the plaintiff entitled to a decree as prayed for."
10. Learned lower appellate court while considering point No. (1) came to the following findings:-
" From careful consideration of the entire documentary evidence of the defendant it is apparent that he has got no registered document in support of the ownership of the suit house except an story of oral sale of the year 1911 and a sada receipt of Rs. 15/- Ext. F in token of oral sale. The defendant has not filed any document, receipt or any paper to show that his ancestors were recognized by the Bihar Government as a tenant since vesting of the State.(sic) Hence from comparative consideration of the documentary evidence of the defendant, I come to the conclusion that the plaintiff has succeeded in proving prima facie that he is the owner of the suit house."
11. The learned lower appellate court held thus that the plaintiff has succeeded in proving prima facie that he was the owner of the suit house.
12. Dealing with relationship of landlord and tenant between the plaintiff and defendants, learned lower appellate Patna High Court SA No.88 of 2000 9 court held in paragraph 14 as follows:-
"14. It is necessary to examine the second aspect of this point as to whether the plaintiff has been able to prove the relationship of landlord and tenant with respect to the suit house. In this context, it appears from perusal of the documents of the plaintiff that Exts. 2, 3, 3/a and 3/b are the writing of Badri Lal Gupta and certain endorsement and signature of Bir Bahadur Singh and Janardan Singh on a plain paper goes to suggest some relationship of tenancy with defendant Janardan Singh. Ext. 15 to 15/R are the different entries of different dates of different postmen in the postman's book in due course of their official discharge of their duties. From perusal of Ext. 15 series it appears that certain amount has been sent in the name and to the side of the plaintiff from Janardan Singh (Jawahar Transport Agency) which also goes to show the relationship of landlord and tenant. Moreover, it has already been held that the plaintiff has succeeded in proving himself as landlord of the suit house. Hence considering the evidence on record and as per the discussion made above I come to the conclusion that there is relationship of landlord and tenant in between the plaintiff and the defendant."
13. Evidently the learned lower appellate court was not sure as regards his conclusion that there was relationship of landlord and tenant between the plaintiff and defendants inasmuch as he has mentioned that there was "some relationship" of tenancy with defendant Janardan Singh. In result he came to the following finding in paragraph 15 which reads thus:-
"15. In the result, from careful scrutiny Patna High Court SA No.88 of 2000 10 of the evidences and the materials available on the case record and as per the discussions made above, I hold and come to a finding that the plaintiff has succeeded in proving by cogent and registered documentary evidences that he is the landlord of the suit house and the defendants are the tenant of the suit house and as such the point No.1 is decided in favour of the appellant- plaintiff."
14. The learned lower appellate court with these findings allowed the appeal and set aside the judgement and decree of the learned trial court. He decreed the suit filed by the plaintiff and directed the defendants to vacate the suit premises within 60 days. He also directed the defendants to pay arrears of rent since November, 1983 at the rate of Rs. 400/- per month, failing which the plaintiff would be entitled for recovery of possession of the suit house along with arrears of rent through the process of the court.
15. In the background of these facts, the present second appeal has been preferred by the appellant who was defendant No.2 before the trial court. The appeal was admitted by an order dated 27.07.2003 by this court framing following substantial questions of law:-
"(1) Whether the appellate court committed error in holding that there is existence of relationship of landlord and tenant between the plaintiff and defendant?
(2) Whether the appellate court committed error in not considering the ground for eviction, which is bonafide at all or not, while granting decree of eviction?"Patna High Court SA No.88 of 2000 11
16. The court gave liberty to the appellant to raise any other substantial question of law at the time of hearing of the appeal.
17. In course of hearing of the present second appeal, learned counsel appearing on behalf of the appellant has raised other questions of law also but such questions of law raised by him have not been framed as substantial questions of law as in my opinion this appeal can be decided on the basis of substantial questions of law already framed.
18. Mr. Binod Kumar Singh, learned counsel appearing on behalf of the appellant, has submitted that the learned lower appellate court committed gross error of law while decreeing the suit directing eviction of the appellant without recording any finding that the suit premises was reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person in whose benefit the building was held by the landlord. He has further contended that the learned lower appellate court committed an error while entering into the complex questions of title between the parties instead of deciding in its correct perspective the real issue, i.e., the question of relationship of landlord and tenant between the parties. He has also contended that the findings of the learned lower appellate Patna High Court SA No.88 of 2000 12 court as regard ownership of the suit property in favour of the plaintiff, even prima facie, is perverse. He has also contended that the appellant never paid the alleged monthly rental of Rs. 150 per month or Rs. 400 per month and there is no cogent evidence on record in support of such plea of the plaintiff/ respondent.
19. Mr. Ganpati Trivedi, learned counsel appearing on behalf of the respondents, on the other hand, has supported the judgement of learned lower appellate court and has contended that there was enough evidence led in course of trial to establish that the plaintiff/ respondent No.1 had title over the suit premises and learned lower appellate court after considering such documents rightly came to a prima facie finding that the plaintiff had the title over the suit property. The findings of the learned lower appellate court in this regard, according to him, cannot be said to be without any evidence or perverse. He contends that the learned lower appellate court has assigned reasons while differing with the findings of the trial court and, therefore, such finding should not be interfered with by this court in a proceeding under section 100 of the Code of Civil Procedure. He has further contended that the learned lower appellate court rightly came to a conclusion that there was Patna High Court SA No.88 of 2000 13 relationship of landlord and tenant between the parties and this being an admitted fact that the defendant/ appellant had not paid any rent, learned lower appellate court rightly decreed the suit on the ground of default in payment of rent. He has, accordingly, contended that even if there is no finding that the suit premises was reasonably and in good faith required by the landlord for his own occupation, the judgement and decree of learned lower appellate court cannot be faulted with, there being finding of non-payment of monthly rental.
20. From the perusal of the records of the trial court as well as learned lower appellate court and the judgements and decrees of the courts below, it would emerge that the parties, in course of trial, raised serious disputes of title over the suit property and claimed their respective ownership over the same. They led their evidence also on the question of their respective title. Learned lower appellate court, however, did not go into the question of title of the parties over the suit premises, it being an eviction suit. Learned lower appellate court, however, went into the dispute of title over the suit property and on comparative consideration of documentary evidence of the plaintiff/ respondent No.1 and those of the defendant No.2/ the appellant came to a finding that the plaintiff had succeeded in proving Patna High Court SA No.88 of 2000 14 prima facie that he was owner of the suit house. Thereafter, he referred to certain documents, i.e., Exhibits- 2, 3, 3/a and 3/b, which were writings of Badri Lal Gupta and certain endorsements and signatures of Bir Bahadur Singh and Janardan Singh (defendant No.1) on a plain paper which according to learned lower appellate court went to suggest "some relationship" and tenancy with defendant Janardan Singh. Referring to Exhibit-15 series, learned lower appellate court concluded that certain amount had been sent in the name and to the side of plaintiff from Janardan Singh which also went to show that there was relationship of landlord and tenant. Learned lower appellate court hastily held in paragraph 14 that it had already been held that plaintiff had succeeded in proving himself "landlord of the house".
21. I will consider first the first substantial question of law framed by this court first which reads thus:-
"(1) Whether the appellate court committed error in holding that there is existence of relationship of landlord and tenant between the plaintiff and defendant?"
22. On perusal of the judgement and decree of the learned lower appellate court, it will appear that after considering the evidence on record he came to a finding in paragraph 13 that the plaintiff had succeeded in prima facie Patna High Court SA No.88 of 2000 15 proving that he was owner of the suit house. Up to paragraph 15 of the said judgement there is no finding of any relationship of landlord and tenant between the parties. In paragraphs 14 and 15 learned lower appellate court has considered the aspect of existence of relationship of landlord and tenant between the parties with respect to the suit house. Referring to Exhibits- 2, 3, 3/a and 3/b learned lower appellate court has observed that theses evidences were showing that there was some relationship of tenancy with Janardan Singh. Learned lower appellate court himself, while making this observation, immediately thereafter in the same paragraph, i.e., paragraph 14 has recorded that "moreover it has already been held that the plaintiff has succeeded in proving himself as landlord of the suit house"
though there is no such finding to this effect prior to this observation by learned lower appellate court. It seems that learned lower appellate court purely on the basis of his prima facie finding in paragraph 13 of his judgement to the effect that the plaintiff was owner of the suit house, came to a conclusion that the plaintiff had succeeded in proving himself as landlord of the suit house. Even if it is presumed that learned lower appellate court rightly came to prima facie finding that the plaintiff was owner of the suit house, that could not have been Patna High Court SA No.88 of 2000 16 the sole basis for reaching to a conclusion that the plaintiff was landlord of the suit house within the meaning of Section 2(f) of the Act, which reads thus:-
"(f) "Landlord"; includes the person who for the time being is receiving or is entitled to receive, the rent of the 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, to be entitled to receive the rent, if the building were let to a tenant;"
23. The reasoning assigned by learned lower appellate court for reaching to a conclusion that there existed relationship of landlord and tenant between the plaintiff and defendants in paragraph 14 is apparently erroneous. In none of the preceding paragraphs the learned lower appellate court recorded his finding that the plaintiff succeeded in proving himself has landlord of the suit house whereas in paragraph 14 he has recorded that this fact has already been held.
24. I find substance in the submission made on behalf of the appellant the limited scope of the courts below in a suit for eviction was to examine whether there existed relationship of landlord and tenant between the parties or not. Once the plaintiff succeeded to prove this aspect conclusively, the courts below could have gone into other aspects, i.e., as to whether the Patna High Court SA No.88 of 2000 17 conditions sine qua non for grant of the decree for eviction were available or not on the basis of evidence on record. From the judgement of learned lower appellate court, I find that there is absolutely no finding as to whether on the basis of evidence adduced in course of trial, it could be said that the suit property was reasonably in good faith required by the landlord for his own occupation nor there is any finding that default in payment of rent proved by the plaintiff was the ground for decreeing the suit in favour of the plaintiff. None of the grounds available in Section 11 of the Act has been mentioned as one of the reasons for decreeing the suit. As I have discussed above, the reasons assigned by the learned lower appellate court for coming to a conclusion that there existed relationship of landlord and tenant between the plaintiff and defendants are unsound, illogical, and erroneous. I accordingly answer the first substantial question of law in affirmative.
25. The second question of law framed by this court in this appeal is as follows:-
"(2) Whether the appellate court committed error in not considering the ground for eviction, which is bonafide at all or not, while granting decree of eviction?"
26. Answer to this substantial question of law, in view of the observations as above is also in affirmative for the Patna High Court SA No.88 of 2000 18 reason that the learned lower appellate court has not at all considered as to whether conditions envisaged under section 11(1)(c) of the Act existed, i.e., whether the building was reasonably in good faith required by the landlord for his occupation. There is absolutely no consideration on this aspect by the learned lower appellate court. The judgement and decree dated 23.12.1999 passed by learned VIth Additional District Judge, Begusarai in M.T.A. No. 4 of 1989/ 7 of 1994 under challenge in the present appeal are , accordingly, set aside. The matter is remanded back to the court below for fresh consideration of M.T.A. No. 4 of 1989/ 7 of 1994 on the basis of evidence available on record.
27. I must record my appreciation for able assistance extended by Mr. Binod Kumar Singh and Mr. Ganpati Trivedi learned counsel appearing for the parties who made their submission at length and took me to various complicated legal issues touching title of the parties over the suit property. Since I have not gone into such issues while deciding the present second appeal, I have not referred to their submissions in my judgement.
28. Needless to say that the parties will be at liberty to raise their plea of title over the suit property by filing appropriate suit and any observation made by the first appellate Patna High Court SA No.88 of 2000 19 court below in the impugned judgement shall not prejudice their case in any manner.
29. This appeal is, accordingly, allowed. Parties shall bear their own costs.
Let the lower court records be sent down to the court concerned.
(Chakradhari Sharan Singh, J) BKS/-
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