Patna High Court
Abdul Rauf vs Sayara Begum And Ors. on 22 June, 2001
Equivalent citations: 2001(2)BLJR1504
Author: Someshwar Nath Pathak
Bench: Someshwar Nath Pathak
JUDGMENT Someshwar Nath Pathak, J.
1. This Second Appeal is directed against the judgment and decree passed by Sri Bageshwari Prasad, 2nd Subordinate Judge, Gaya, in Title Appeal No. 54/1979 /Title Appeal No. 1/1980. The defendant of the Title Suit No. 354 of 1974 was the appellant in the 1st Appellate Court and he is the appellant before this Court as well. The trial Court.(Munsif 1st, Gaya) had decreed the suit of the respondents against which the sole defendant filed the first appeal and he is appellant before this Court.
2.The relevant, facts for decision of this appeal are that the aforementioned title suit was filed by one Abdul Ajij and his brother Md. Siddiquee (since deceased and whose heirs were substituted) making a plea that plot Nos. 83 and 84 having a total area of 30 decimals after amalgamation under khata No. 94 was under the joint ownership of the two brothers. Abdul Ajij was the managing owner of the property and defendant Abdul Rauf approached Abdul Ajij to grant tenancy over 22 decimala of the aforesaid plots and an agreement was entered into which was on a stamped paper (without registration) and the defendant was put in possession over the suit land on 16-1-1967 on a monthly rental of Rs. 10/-. The defendant paid rent upto the month of April, 1972, but thereafter he failed to pay the rent. A Lawyer's notice was sent to him terminating his tenancy and demanding arrears of rent and a reply was sent making irrelevant allegations. So, the suit was filed seeking arrears of rent to the tune of Rs. 270/- and eviction of the defendant was also sought. The eviction of the defendant was sought alternatively on the ground that the plaintiffs had their title over the suit land and the defendant was not entitled to continue in its occupation. Ad volerem Court-fees was also paid.
3. The defendant through his W.S. stated that by mutual arrangement between Abdul Ajij and Siddiquee the suit land fell to the share of Siddiquee. Thereafter, Siddiquee orally gifted the suit land to his daughter Jubaida in the year Baishakh, 1962. Thereafter Jubaida inducted the defendant on the suit land in the year 1965 on a monthly rental of Rs. 5/-. Subsequently, the defendant purchased the suit land by two registered sale-deeds from Jubaida. Therefore, there was no relationship of landlord and tenant between the plaintiff and the defendant nor he had defaulted in payment of rent. He was also not served a notice under Section 106 of T.P. Act. Allegedreply of this notice was manufactured by the plaintiff. So, the defendant resisted his eviction from the suit premises on the pleas raised by the plaintiff.
4. The trial Court on the basis of the evidence held that there was relationship of landlord and tenant between the plaintiff and the defendant and moreover, it was not proved that Jubaida was the daughter of Siddiquee. Hence, there was no question of oral gift in her favour by Siddiquee nor there was any valid question of induction of the defendant by Jubaida on the suit land. The trial Court, therefore, held further that the defendant had defaulted in payment of rent and, hence, he was liable to be evicted from the suit land. The appellate Court on the basis of a detailed discussion of the evidence held that, ofcourse, it was not proved that Jubaida was the daughter of Siddiquee and, therefore, the defendant had failed to prove that he had title on the basis of sale from Jubaida. The 1st appellate Court also held that there was relationship of landlord and tenant between the plaintiff and the defendant and, therefore/the defendant was liable to be evicted. The appellate Court, therefore, confirmed the judgment of the trial Court and dismissed the appeal.
5. The question of law formulated for decision of the appeal was the simple question whether suit for eviction can be decreed without a finding regarding the validity of the notice determining the lease. This question of law has been mentioned in the order-sheet dated 29-7-1985. However, I find that both the lower Courts held that there was relationship of landlord and tenant between the parties to the suit and this was a question of fact. So, the finding of the Courts below are fihaland it cannot be raised in the second appeal. So, far the question whether Jubaida was the daughter of Siddiquee, both the lower Courts held that it was not proved that she was the daughter of Siddiquee. So, the findings of the Courts below on th is fact also become final.
6. In the backdrop of the above findings regarding the question of fact, I would mine the pleadings of the parties regarding the relationship of landlord and tenant. It is apparent that the suit was filed by both Abdul Ajij and Siddiquee, the two brothers, seeking eviction of the appellant. Siddiquee died and his heirs were substituted in the suit and they were also appellants before the 1st appellate Court. So, it was obvious that eviction of the defendant was sought both by Abdul Ajij and Siddiquee and his heirs. The W.S. of the defendant clearly indicated that Siddiquee was allotted the suit land by family arrangement with his brother, the co-plaintiff, Abdul Ajij. So, indirectly the defendant appellant admitted the title of the plaintiffs Abdul Ajij and Siddiquee over the suit land. There is no escape from this interpretation of the W.S. of the defendant. This is so, because the defendant claimed to derive his title over the suit land by virtue of sale from Jubaida, the so-called daughter of Siddiquee, who was allegedly gifted with the suit land by her father. So, onus was heavy on the defendant-appellant to prove that after family arrangement Siddiquee got the suit land and he orally gave it to Jubaida. In this connection defendant's evidence was insufficient as it was held by both the lower Court. Neither the defendant could prove that the suit land was allotted to Siddiquee nor it was proved by him that Jubaida was the daughter of Siddiquee. So, the contention of the defendant in his W.S. that he was inducted on the suit land by Jubaida as tenant having not been proved, it would result in a clear circumstance that the defendant was a tenant on the suit land under the landlordship of Abdul Ajij and Siddiquee and on his death under his heirs. The suit was filed by both Abdul Ajij and Siddiquee and under the established principle of law any co-owner or joint owner can maintain the suit for the eviction of a tenant. When the defendant had failed to prove his induction on the suit land by Jubaida, his status as a tenant of the suit land would be under Abdul Ajij and Siddiquee because he himself could not prove his title over the suit land nor his induction on the same by any other person other than Jubaida. So, nobody else except the owners of the land would have inducted him on the suit land. There was no escape from this circumstances as well emerging from the case and the evidence adduced by the parties.
7. Besides the above circumstance, emerging from the pleadings of the parties, there was the discussion upon Ext. 1/A by both the Courts below which was the so-called reply sent by the defendant to the notice served upon him under Section 106 of T.P. Act. It was submitted before me that a reply under the signature of one Advocate, namely, Yugal Kishore Prasad, was without any power of attorney. However, there was no reference of any power of attorney given by the defendant in favour of Yugal Kishore Prasad by the plaintiff nor by the defendant n his W.S. So, I fail to understand why the matter of power of attorney was raised before this Court by the appellant's lawyer. The reply (Ext. 1/A) shows that Yugal Kishore Prasad stated in this document that he was legally authorised and empowered and instructed by Abdul Rauf to send this reply. So, there was no question of any power of attorney in favour of Yugal Kishore Prasad. All that is required for a reply is the authorisation by the client. In this reply it was not mentioned that Rauf had taken the suit land from Jubaida nor his tenancy under the plaintiff was denied; rather certain pleas were raised regarding advance by Abdul Rauf and expenditure made on the construction of the suit land etc. So, the trial Court held that this reply confirmed that the defendant was tenant of the suit land. The trial Court also relied on Ext. 5 which was a plaint filed in the year 1967 by Abdul Ajij and Siddique stating therein that Rauf was a tenant under them over the suit land. Jubaida was not mentioned in the document as the daughter of Siddiquee and acquiring any oral gift. The trial Court based its finding regarding parentage of Jubaida on this document besides other evidence. I have already stated above that finding regarding relationship of landlord and teent arrived at by both the Courts below was final and it was based on oral as well as documentary evidence. Hence, this question could not be raised in this Second Appeal. The reference to the pleadings of the parties was also sufficient to prove that defendant was a tenant over the suit land under the landlordship of Abdul Ajij and Siddiquee and then his heirs.
8. So, far the arrears of rent is concerned, it was for the defendant to prove that he was regular in payment of rent upto the stage when the suit was filed. In this connection, no evidence was led rather it was submitted and he claimed that the defendant was a tenant under Jubaida. Since Jubaida's daughtership was not proved nor oral gift in her favour was proved, the payment made to her was also not a payment in favour of the landlords who were the plaintiffs of the suit.
9. So, on the ground of non-payment of rent the defendant was liable to be evicted. Besides that the plaintiffs had claimed eviction of the defendant on the basis of their title also. In this connection, W.S. of the defendant was to the effect that by family arrangement the suit land fall to the share of Siddiquee. So, indirectly the defendant admitted that the suit land was a joint property of Abdul Ajij and Siddiquee. So, there was clear admission of title of the plaintiffs by the defendant over the suit land. In this connection, a plea was, perhaps, raised in the 1st appellate Court on the basis of Ext. 5 which was a plaint filed by the two brothers mentioned above in the year 1967 that the suit land was acquired by settlement from ex-Zamindar. The defendant appellant raised the plea in the appellate Court that title of the plaintiff was not valid in so far as the settlement was not made by registered document and there was an admission by the defendant in the suit under appeal that Abdul Ajij and Siddiquee made family arrangement and allotted the suit land to Siddiquee. This admission was sufficient to prove the title of the plaintiff-respondent over the suit land. No plea could be raised before this Court or before the 1st appellate Court regarding non-title of the plaintiffs on the basis of the earlier plaint filed in the year 1967 in which settlement was claimed on the basis of unregistered document. Neither the Court can introduce a third case not the defendant can be allowed to make plea beyond his W.S. So, it was well established that the plaintiffs of the suit had title over the suit land and the defendant had failed to prove his title except his status on the suit land as tenant. No adverse possession was pleaded. The plaintiffs had proved their relationship as landlord and tenant with the defendant. The plaintiffs had also paid Ad volarem Court-fee. So, they were entitled to seek eviction of the defendant-appellant on the basis of their title as well.
10. Now, so far the law formulated for decision of the Second Appeal, I find that the trial Court referred to a notice (Ext. 1) filed by the plaintiff respondents and Acknowledgment (Ext. 4). Ext. 1 clearly indicated that plaintiffs had determined the tenancy of the defendant-appellant because of his non-payment of rent. Acknowledgment (Ext. 4) shows that notice was served upon the defendant. It was submitted before the 1st appellate Court that this Acknowledgment bore the signature of Md. Abdul Rauf in Urdu language, but the defendant did not know Urdu language. However, since admittedly the defendant was Mohammedan, his knowledge of Urdu cannot be ruled out. Of course, he signed his W.S. in Hindi language, but that may be a device to deny his signature appearing on acknowledgment which was exhibited in the trial Court (Ext. 4). It was specific plea by the plaintiff also in his plaint that he had sent his notice and he had also received the reply. So, the finding of the trial Court arrived at regarding the notice cannot also be held to be suspect and, therefore, I am of the opinion that notice was also duly served upon the defendant-appellant. So, the question of law formulated in this appeal was well answered by findings of the trial Court. Even if it be admitted for a moment that no notice was served under Section 106 of T.P. Act, the decree recorded by the two Courts below regarding eviction of the defendant-appellant was valid because the eviction was sought on the ground of the title of the respondents and non-title of the defendant-appellant. I have already held above that no adverse possession was pleaded nor proved. So, in all circumstances, the defendant was liable to be evicted from the suit land.
11. In the result, this appeal before this Court is not sustainable on fact or law. So, it is dismissed. However, in the circumstances, there shall be no order as to costs.