Jharkhand High Court
Niranjan Prasad Srivastava vs Smt Durga Sultania on 13 January, 2017
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.121 of 2014
Niranjan Prasad Shrivastava, S/o Late Jaleshwar Prasad
Srivastava, resident of Tagore Hill Road, Beside Vyas
Enclave (under construction) Infront of Dr. S. K. Gupta,
Morabadi, Town Ranchi, P.O. & P.S. - Bariatu, District -
Ranchi ...... Appellant
Versus
Smt. Durga Sultania, W/o Shri Om Prakash Sultania,
Resident of A1/2, Gangotri House, South Park, P.O. & P.S.
Bistupur, Town Jamshedpur, District Singhbhum East.
..... Respondent
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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. D. K. Prasad, Advocate
Mr. S. K. Sahay, Advocate
For the Respondent : Mr. Rohitashya Roy, Advocate
Mr. Tarun Kr. Mahto, Advocate
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24/Dated: 13th January, 2017
The appeal has been preferred against the judgment and decree dated 05.06.2014 and 16.06.2014 respectively, passed by the Judicial Commissioner- IV, Ranchi, in Title Appeal No.61 of 2013 affirming the judgment and decree of the 2nd Additional Munsif, Ranchi in Eviction Title Suit No.32 of 2005, whereby the appellant/ defendant were directed to vacate the suit premises and to pay arrears of rent from March, 2014 to June, 2014, less the rent, if any, paid earlier.
2. The appellant in the present case was the defendant in the trial court and the respondent was the plaintiff. For the sake of convenience they shall be referred to as defendant and plaintiff in present appeal.
3. The plaintiff's case is that her husband retired from the Commercial Taxes Department. That he is a law graduate and wants to practice as an Advocate at Ranchi. That the suit premises are required for accommodation and residential -2- office for her husband. That the defendant was inducted as a tenant on monthly rent of Rs.2300/- p.m. in the suit premises. That the defendant has not paid rent since March 2004. The plaintiff had sent notice on 28.06.2015 to vacate the suit premises but the defendant failed to do so, hence, the suit was instituted for eviction by the defendant on the ground of personal necessity and default in payment of rent.
The defendant contested the suit and filed his written statement asserting that the suit was not maintainable under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (here-in-after to be referred to as the BBC Act for short).
It is averred that since the plaintiff has taken additional ground of default hence, the suit was not maintainable under Section 14 of the BBC Act. It is pleaded that there is no relationship of landlord and tenant between the parties neither the defendant ever paid rent @Rs.2300/- per month to the plaintiff. The defendant has asserted that he is in possession of the suit property since 1981, pursuant to an agreement for sale dated 30.12.1981 entered between Renu Sen and the defendant for which a consideration amount of Rs.51,000/- was paid by the defendant. That unfortunately the sale deed could not be executed however, the defendant continued to be in possession of the suit property and he has acquired the title over the suit property by adverse possession. The defendant, subsequently, amended the written statement with a plea that plaintiff's husband was introduced to the defendant through a common friend namely, Suresh Nandan Prasad Srivastava in the month of July, 2003. That the husband of the plaintiff agreed to get the -3- sale deed executed by the heirs of Renu Sen on payment of commission amount of Rs.50,000/- by the defendant. The defendant believed the assertion made by the plaintiff's husband and paid Rs.15,000/- (by cheque of Rs.13,800/- and Rs.1,200/- in cash), by way of first installment and subsequently paid Rs.23,000/- by cheque to the plaintiff towards part payment of the brokerage commission. The defendant pleaded and alleged that the said cheques were now being utilized by the plaintiff to make out a case that the aforesaid amount was paid towards the rent payable by the defendant as tenant. It is also pleaded that plaintiff's description of the property does not tally with the property which is in possession of the defendant. That the defendant is possessing of the northern portion of Plot No.170 while the plaintiff has stated that she has purchased the southern portion of Plot No.170.
On the said grounds the defendant disputed the claim of ownership and title of the plaintiff over the suit land and stated that there is no cause of action and the suit is fit to be dismissed.
On the pleadings of the parties the trial court framed the following six issues:-
(i) Is the suit as framed maintainable in its present form?
(ii) Whether the plaintiff has valid cause of action for the suit?
(iii) Whether there exists landlord tenant relationship between the parties ?
(iv) Whether plaintiff requires the suit property in good faith by her own use and occupation?
(v) Is the plaintiff entitled to the relief/reliefs?
Additional issues was framed in terms of the order passed by the Hon'ble High Court as hereunder:-
(vi) Whether the sale deeds of the plaintiff -4- marked Ext.1 is genuine vis-a-vis the documents produced by the defendant i.e. Ext.A and Ext.S. Both the parties adduced oral and documentary evidence and the trial court on the basis of the evidence adjudicated the issues in favour of the plaintiff and decreed the suit.
Being aggrieved, the defendant preferred the appeal before the Judicial Commissioner- IV, Ranchi. The appellate court by the impugned judgment affirmed the judgment and decree of the trial court whereafter the defendant has carried this second appeal before the High Court.
4. Learned counsel for the defendant/ appellant has argued that the lower appellate court and trial court have committed gross error in not appreciating the evidence that in the sale deed dated 28.12.1984 (Ext. - 1), it is mentioned that the plaintiff had purchased the portion of the Plot No.170, marked as 170/II of Khata No.130 which is situated on the southern portion but the defendant is not in possession of the southern portion of the suit property. The defendant had acquired the property under MS Plot No.83 and some portion of MS Plot No.83 measuring an area of 11 kathas, 6 chhatak from Renu Sen, through an agreement of sale, on payment of consideration amount of Rs.51,000/- and after receipt of the consideration amount, Renu Sen had handed over the possession of the portion of the suit property to the defendant on 30.12.1981. She had assured that she would execute the sale deed on her next visit to Ranchi but due to her unfortunate demise the sale deed could not be executed. That the defendant despite his best efforts could not locate or contact the heirs or the husband -5- of late Renu Sen. That the plaintiff's husband was introduced through a common friend. That the plaintiff's husband asserted that he knew heirs of Renu Sen and assured the defendant that he would get the sale deed executed on payment of commission of Rs.50,000/- as brokerage. On the assurance given by the plaintiff's husband the defendant had paid Rs.15,000/- as first installment (Rs.13,800/- by cheque and Rs.1,200/- in cash) and another cheque of Rs.23,000/- as part of the commission.
Learned counsel has argued that courts below have erred in not appreciating the fact that the said cheques have been utilized cunningly by the plaintiff to show that the amount was paid as rent by the defendant. It is urged that the trial court has committed an error by considering Ext. - 3, i.e., the certified copy of the bank statement of the defendant, and the photocopy of newspaper cutting which has been marked Ext.- X for identification of the suit land which is inadmissible in evidence. It is contended that in fact there is no legal evidence on recored to establish the relationship of landlord and tenant between the plaintiff and the defendant.
It is contended that the appellate court has ignored Ext.- E, i.e., the certificate dated 04.03.2008, issued by the Registrar of Assurance, Kolkata, which shows that there is no map plan in the sale deed (Ext. - 1) of the plaintiff. That the court below has erred in relying on Ext.-1 which is the certified copy of the sale dated 28.12.1984.
It is argued that the lower appellate court has failed to appreciate that learned trial court has misunderstood and misconstrued the plaintiff's document, i.e., Ext.-1 by -6- considering it as genuine and ignored the copy of the sale deed Ext. - A and Ext. - S and has recorded a perverse finding by not considering Ext.- E produced by the defendant.
Learned counsel has contended that the courts below have not given any finding on partial eviction. That the judgment of the courts below is perverse due to no non- consideration of the documentary evidence of the defendant. Learned counsel has urged that non-consideration of the evidence in proper perspective gives rise to a substantial question of law for adjudication in the present appeal.
5. Per contra, learned counsel for the plaintiff respondent has submitted that the plea of partial eviction was never raised in the court below and the specific case of the plaintiff is that she requires the entire suit premises for her husband, who possess a degree in law and after superannuation from the service wants to practice as an Advocate. That there is concurrent findings by the courts below that there is a relationship of landlord and tenant between the defendant and plaintiff and the defendant has defaulted in payment of two months rent. That there is no illegality or perversity in the finding of the courts below and no substantial question of law is involved in the appeal.
6. Heard. It is settled proposition of law that questions of fact do not involve a substantial question of law. The arguments propounded by the learned counsel for the defendant/ appellant is founded on the reasoning that evidence has not been appreciated in its proper perspective.
On perusal of the impugned judgment it is explicit that the lower appellate court has considered the disputed -7- question of fact regarding identity of the suit property as well as about the existence of the relationship of the landlord and tenant between the parties.
Learned counsel for the appellant/ defendant has reiterated the same arguments which were considered and dismissed by the first appellate court. The appellate court has examined the certified copy of the sale deed, i.e. Ext.-1 and Ext.-E which was produced by the defendant from the Registrar of Assurance, Kolkata dated 08.03.2008. The lower appellate court had disbelieved Ext.-E as it was not properly proved and rightly held that it cannot rebut, Ext. - 1 which is the certified copy obtained from the competent authority. The suit property has been described and mentioned in Ext.-
1. In the recital of the sale deed it is stated that the plaintiff/ respondent purchased the northern portion of Plot No.170 and the southern portion was proposed to be sold to Prabhawati Devi. The learned appellate court has also considered Ext.-7 which is the certified copy of sale deed dated 28.12.1984 executed in the name of Prabhawati Devi which also does not contain the map-plan, but in the recital of the said sale deed it is mentioned that on the North is vendor's land proposed to be sold to Durga Sultania, i.e., the present plaintiff.
On consideration of both the documentary and oral evidence, the lower appellate court has rightly held that the plaintiff has purchased the northern portion of Plot No.170. The appellate court has also considered Ext.- A, i.e., the photocopy of the original sale deed, which has been filed by the defendant, which has a map showing that some portion has been purchased by the plaintiff. Ext. - S is the original -8- sale deed in which it has been shown that the plaintiff has purchased the southern portion of Plot No.170. The learned appellate court has perused Ext. - U, which is the sale deed executed by Prabhawati Devi in favour of Ajay Kumar Jain wherein it is mentioned that the entire 11 kathas and 6 chhatak of land pertaining to Sub-Plot No.170/B of village Morhabadi has been transferred and in the said sale deed Sub Plot No.170/A is shown lying on the northern portion to the said plot. The sale deed, i.e., Ext. - U contained a map showing that Prabhawati Devi had purchased the land on southern portion which was sold to Ajay Kumar Jain and it has not been disputed that Prabhawati Devi and Durga Sultania, i.e., the present plaintiff had purchased the property half and half each by two sale deeds on the same day from the heirs of the recorded owner, Renu Sen. On the basis of description of the suit property as mentioned in the sale deeds and the available evidence on record the court below has rightly held that the plaintiff has purchased half of the northern portion of Plot No.170 hence, the identity of the suit premises stands established.
On the question of land lord and tenant relationship the court below has considered the bank account statement of the defendant namely, Ext. - 3 & 3/a, i.e., payment of Rs.13,800/- and Rs.23,000/- which the defendant claimed that he paid as a brokerage amount and on consideration and appreciation of the evidence held that the defendant alleged that Rs.50,000/- was paid as brokerage amount out of which Rs.15,000/- was paid at one time by two modes, i.e., Rs.13,800/- through cheque and Rs.1,200/- in cash. The appellate court has taken note of the fact that when the -9- entire amount of brokerage was Rs.50,000/- then how come Rs.15,000/- was paid in one installment and that too Rs.1200/- in cash and Rs.13,800/- through cheque and rightly disbelieved the explanation offered by the defendant by assigning cogent reasons that when the defendant has tried to set up a case that he had entered into an agreement to purchase in 1981 and the fact that the plaintiff had purchased the land in 1984, then why would the plaintiff's husband project himself as a broker in 2003.
The courts below have recorded the finding that such a plea was not taken initially by the defendant but the additional plea was introduced by way of amendment because the defendant realized that he had to offer some explanation with regard to the payment made to the plaintiffs by him through cheques of Rs.13,800/- and 23,000/-.
The lower appellate court has rightly held that it is against a common man's prudence that when no work was done after payment of Rs.15,000/- as first installment then why would the defendants pay the second installment of Rs.23,000/-. Evidently, the defendant had miserably failed to adduce any tangible evidence to substantiate such a plea. The appellate court has analysed and discussed the material evidence and circumstance and held that the amount of Rs.13,800/- and Rs.23,000/- by cheques was paid as rent for 6 months and 10 months respectively @Rs.2,300/- per month while concurring with the findings of the trial court that there is relationship of landlord and tenant.
On the point of personal necessity there is a finding that the plaintiff's husband wants to practice as an advocate
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and he does not have any house at Ranchi and the fact that a person cannot be forced to reside in a tenanted premises when he has his own house at Ranchi. It is well settled that one persons' necessity cannot be equated or compared with the necessity of another person and it should not be founded merely on desire The defendant has not brought any evidence on record to show that the plaintiff has any other house at Ranchi. As per explanation of Section 11(1) (c) of the BBC Act, the aspect of partial eviction can be considered only when the defendant is agreeable on such partial eviction. It is noticed that the defendant has not pleaded about partial eviction rather he has tried to assert that he has acquired the title by adverse possession. On the other hand the plaintiff's case is that the suit property is required for residence and office purpose for the use of her husband. There is no scope of two persons having joint accommodation in the same house. The appellate court has recorded its satisfaction and rightly held that the issue of partial eviction looses significance when there is a unimpeachable finding that the defendant had defaulted in payment of rent.
The court below has taken note of the fact that the defendant has admitted that he came to Ranchi in the year 1985 and his plea that an agreement was entered in the year 1981 for purchase for the suit property culminating into adverse possession is self-destructive as there was no explanation as to why he had paid brokerage amount in 2003 for acquiring ownership and title which is indicative of the fact that there was lack of intention to posses the property as an owner.
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7. It is settled legal position that concurrent findings of facts by the courts below cannot be interfered in the second appeal until and unless there is perversity apparent on the face of the record. In view of the discussion made and on perusal of the impugned judgment in the considered opinion of this Court, there is no perversity in the findings of the lower appellate court and no substantial question of law is involved in the present appeal.
Consequently, the appeal stands dismissed and the judgment of the courts below is, hereby, affirmed.
(AMITAV K. GUPTA, J.) Chandan/-