Jharkhand High Court
Nem Raj Kothari vs Ram Das Sahu on 20 February, 2017
Equivalent citations: 2017 (3) AJR 425
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.201 of 2015
Nem Raj Kothari, S/o Late Jasraj Kothari, R/o 2 nd Street
Church Road, P.O. G.P.O, P.S. Lower Bazar, District
Ranchi (Jharkhand), through his Power of Attorney
Holder, namely, Rajesh Jain, S/o Subh Karan Jain, R/o
Subh Laxmi Niwal, Bhuiya Toli, Gari Khana, P.O. -
Kotwali, P.S. - Kotwali Sadar, District - Ranchi.
...... Appellant
Versus
Ram Das Sahu, S/o Late Janki Sahu, R/o 2nd Street
Church Road, P.O. G.P.O, P.S. Lower Bazar, District
Ranchi (Jharkhand) ..... Respondent
---------
CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
---------
For the Appellant : Mr. Suraj Singh, Advocate
For the Respondents :
---------
08/Dated: 20th February, 2017
The present second appeal is directed against the judgment dated 31.03.2015, in Title Appeal No.14 of 2011, passed by the District Judge - XVIII, Ranchi affirming the judgment and decree of the Additional Munsif - I, Ranchi in Title Suit No.34 of 2000, whereby the defendant was directed to vacate the suit premises within one month and hand over the vacant possession of the suit property to the plaintiff.
2. For the sake of convenience, the parties shall be referred to as plaintiff and defendant. The plaintiff is the respondent in the present appeal and the defendant is the appellant.
3. The plaintiff instituted the suit for eviction of the defendant from the suit premises situated in MS Plot No.197 corresponding to Old Holding No.522 present Holding No.589, Old Ward No.V, New Ward No.14 of Ranchi Municipal Corporation, located at 2 nd Street Church Road, Ranchi, P.S. - Lower Bazar, District - Ranchi. The suit premises consists of two bed rooms with aangan and kitchen, in the building, situated on the aforesaid plot. The plaintiff's case is that the defendant was inducted as a tenant on monthly rent of Rs.350/- per month. It is alleged that the -2- defendant paid the rent up to the month of June, 2000 thereafter despite repeated request he did not pay the rent and defaulted in payment of rent from July, 2000 hence, he is liable to be evicted from the suit premises under Section 11(1)(d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (here-in-after to be referred to as the BBC Act for short). The plaintiff also pleaded that due to the negligence and willful act of the defendant, the suit premises has deteriorated, and he is liable to be evicted on that count too.
The defendant contested the suit and filed his written statement, denying the relationship of landlord and tenant. He asserted that the plaintiff had inducted the defendant as a tenant in the year 1964 on a monthly rent of Rs.50/- only. Thereafter on threats of eviction the rent was enhanced from Rs.50/- to Rs.150/- per month from January, 1986 and Rs.200/- per month from January, 1989, thereafter to Rs.350/- per month from January, 2000, and such enhancement was not consented to by the defendant. It is alleged that due to the illegal enhancement the plaintiff has realized Rs.29,700/- from January, 1986 to September, 2000 which is liable to be adjusted towards the rent @ Rs.50/- per month from July, 2000, onwards and he had sent notice to the plaintiff in the month of July, 2000 for adjustment of the aforesaid excess amount realized by the plaintiff. That despite repeated request the plaintiff did not pay any heed.
It is pleaded that the plaintiff did not grant receipt of rent from July 2000 to November 2000. That when the defendant demanded for the receipt, the plaintiff instituted the suit on false, frivolous and vexatious allegation. It is stated that since plaintiff was residing outside Ranchi, as per agreement and understanding whenever he came to Ranchi he realised rents for several months and used to grant rent receipts of several months at a time.
It is pleaded that that the plaintiff was required to carry out white washing and periodical repairs of the suit premises which he failed to do therefore, the allegation that deterioration and damage to the suit premises was caused due to to negligence and fault of the defendant is baseless.
On pleadings of the parties, the court below framed -3- seven issues. The relevant issues were 3 and 4 as to whether there was a relationship of landlord and tenant and whether the defendant defaulted in payment of rent and was liable to be evicted from the suit premises.
The plaintiff and defendant adduced oral and documentary evidence. On consideration of the evidence adduced by the parties, the trial court decided all the issues including issue Nos. 3 and 4 in favour of the plaintiff and decreed the suit for eviction holding that the defendant had defaulted in payment of rent in terms of Section 11(1) (d) of the BBC Act.
Being aggrieved by the judgment of the trial court, the defendants preferred the aforesaid Title Appeal before the District Judge - XVIII Ranchi, who appreciated and considered the evidence of both the parties and after independent application of judicial mind concurred with the findings of the trial court affirming the judgment and decree of trial court consequent thereto, this Second Appeal has been carried to this Court by the defendant/ appellant.
4. Learned counsel for the appellant/ defendant while assailing the impugned judgment has argued that in the present case the courts below have not framed the issue of partial eviction and the findings of the trial court and the appellate court are based on surmises and conjectures. That there is no cause of action for filing the suit and the courts below have also failed to appreciate that the notice as mandated under Section 106 of Transfer of Property Act was not complied with.
5. Heard. At the threshold it is pertinent to state that the findings of the courts below on the point of default in payment of rent is a question of fact. Both the courts below have discussed the evidence on record and they have held that there was relationship of landlord and tenant between the plaintiff/ respondent and the defendant/ appellant. The defendant in his written statement has admitted that he was in occupation of the said premises as a tenant thereby admitting that plaintiff was the landlord. The appellate court has taken note of the pleading and argument advanced by the defendant that he had sent a notice for adjustment of the excess amount realized by the plaintiff towards rent of July, -4- 2000 onwards and held that the defendant failed to produce any documentary evidence to substantiate the same. The counter foil of rent receipts are Exhibits 3 to 3/D which shows that rent was paid by the defendant till June 2000, however, no rent receipt was produced for the subsequent months and the plaintiff had brought on record the challans of rent deposited from April 2003 and for some months of 2004, 2005 and 2006. The courts below have held that despite the order passed under Section 15 of the BBC Act, the defendant was not prompt in paying the rent and rent of several months are due against the defendant.
The defendant's plea that rent for several months used to be realized at one time by the plaintiff has not been established moreover the courts below have held that if the defendant's plea is presumed to be true that the plaintiffs did not grant the rent receipt then there is no explanation as to why the defendant did not approach or file appropriate application before the competent authority under B.B.C. Act seeking a direction upon the plaintiff/ landlord for issuing of the rent receipt. The appellate court has meticulously analysed the oral and documentary evidence and on thorough discussion of the evidence recorded its finding assigning cogent reasons that the defendant is a defaulter in terms of Section 11 (1) (d) of BBC Act while concurring with the findings of the trial court and affirming the judgment and decree for eviction of the defendant from the suit premises on the ground of default.
It is settled preposition that the scope of interference in second appeal in terms of Section 100 C.P.C is very limited and the pure findings of the fact cannot be interfered in second appeal. The re-appreciation of the evidence is beyond the scope of Section 100 C.P.C, until and unless there is gross perversity in findings of the courts below. Section 100 C.P.C mandates that second appeal can be admitted and heard only when substantial question of law is involved in the appeal.
6. In the instant case the questions raised in course of argument advanced by the learned counsel for the defendant/ appellant does not involve any substantial question of law and in fact they are purely question of fact.
-5-Therefore, in the considered opinion of this Court there is no perversity in the findings of the court below involving any substantial question of law warranting any interference by this Court.
In the result the second appeal is, hereby, dismissed.
(AMITAV K. GUPTA, J.) Chandan/-