Jharkhand High Court
Om Prakash Kesri Son Of Late Jagdish ... vs Smt. Chintu Devi on 20 June, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:16282
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 80 of 2011
Om Prakash Kesri Son of Late Jagdish Prasad Kesri, resident of
Kalimanda Road, Tiranga Chowk, Darji Mohalla, Giridih, P.S.-
Giridih (Town), P.O. & District- Giridih.
... ... Defendant/Appellant/Appellant
Versus
1. Smt. Chintu Devi, wife of Sri Puran Ram resident of Tiranga
Chowk, Darji Mohalla, Town & P.O. Giridih, P.S. Giridih (Town),
Dist-Giridih. (Substituted vide order dated 03.12.2021)
1(i) Puran Ram, husband of Late Chintu Devi S/o Late Dhaneshwar
Mahto
1(ii) Ajit Kumar Verma
1(iii) Amit Kumar Verma
Both S/o Puran Ram & Late Chintu Devi, all R/o Tiranga Chowk,
Darji Mohalla, Town & P.O., P.S. Giridih, Distt. Giridih.
... ... Plaintiffs/Respondents/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. R. N. Sahay, Senior Advocate : Mr. Yashvardhan , Advocate.
For the Respondents : Mr. Sudhir Kr. Sharma, Advocate : Mr. Harshit Pradhan, Advocate : Mr. Mahesh Kr. Mahto, Advocate
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24/20.06.2025 Lastly heard on 19.06.2025
1. Heard the learned counsel for the parties.
2. This second appeal has been filed by the defendant against judgment and decree dated 08.08.2011 and 19.08.2011 respectively passed by learned District Judge, Giridih in Eviction Appeal No. 4 of 2010 whereby the judgment and decree dated 25.09.2010 and 04.10.2010 respectively passed by learned Sub-Judge- IV, Giridih in Eviction Suit No. 2 of 1998 has been upheld.
3. This appeal was admitted vide order dated 08.01.2012 on the following substantial questions of law:
(A) Whether in view of the agreement for absolute sale (Ext. A), the suit property was a vacant land and therefore, suit for eviction under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (for short "the Act") is/was not maintainable?
(B) Whether the learned court below failed to consider and erred to hold that the relationship of landlord and tenant 2025:JHHC:16282 did not exist by and between the plaintiff vendor Narendra Prasad Sinha alias Budhu Lal Sinha and defendant appellant under the Act?
Arguments of the appellant.
4. Learned Senior counsel for the appellant, while referring to the substantial question of law no. (A), has submitted that on bare perusal of the exhibit-A which is dated 14.08.1986, it is apparent that there was an agreement for sale with respect to the vacant land for a consideration amount of Rs. 15,000/- out of which Rs. 5,000/- was already paid. It is not in dispute that the defendant was in possession of the property.
5. The learned Senior counsel further submits that the agreement for sale (exhibit-A) reveals that the suit property was a vacant land and therefore, it is submitted that the provision of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (in short "BBC Act") was not at all applicable. The learned Senior counsel submits that both the learned courts have failed to consider the agreement for sale (exhibit-A) properly which was an agreement for sale of vacant land and what was being paid as rent was the rent of vacant land @ Rs. 100/- and it was not rent for any building or constructed property over the land and therefore, on the face of the agreement (exhibit-A), the eviction suit was not maintainable under special law of "BBC Act"
which deals with tenancy in buildings and does not deal with tenancy of land.
6. With respect to the substantial question of law no. (B), the learned Senior counsel for the appellant has submitted that once the agreement for sale was entered into between the parties, the relationship of landlord and tenant between the ex-landlord Narendra Prasad Sinha and the defendant ceased to exist and therefore, merely on purchase of property by the plaintiff through a registered sale-deed of the year 1997, the same could not have revived the alleged relationship of landlord and tenant between the defendant and Narendra Prasad Sinha as the defendant was holding the property by 2 2025:JHHC:16282 his own right and not in the capacity of tenant of Narendra Prasad Sinha. For this, the learned Senior counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2000) 9 SCC 339 [R. Kanthimathi and Another Vs. Beatrice Xavier (Mrs.)] and has submitted that in the said case the agreement for sale was entered into between the parties and it was ultimately held that upon entering into agreement for sale between landlord and tenant the relationship of landlord and tenant came to an end. He submits that in the present case had the courts considered exhibit-A properly, there could not have been any conclusion, other than the conclusion that the relationship of landlord and tenant between Narendra Prasad Sinha and the defendant had come to an end by virtue of agreement for sale (exhibit-A) as back as in the year 1986 and therefore, even by virtue of purchase by the plaintiff in the year 1997, there was no continuation of relationship of landlord and tenant between Narendra Prasad Sinha and defendant and then between the plaintiff and the defendant upon purchase by the plaintiff.
Arguments of the Respondents.
7. Learned counsel for the respondents, while referring to the substantial question of law no. (A) has submitted that both the learned courts considered the evidences on record particularly the evidence of D.W. -1 on the basis of which it has been concluded that in the year 1985 itself, when the tenancy had commenced between Narendra Prasad Sinha and the defendant, there was a structure over the premises but the roof was in a dilapidated condition. The learned counsel has referred to paragraph 21 of the trial court's judgment relating to issue no. (1) and (2) and has submitted that every aspect of the matter has been considered while deciding the maintainability of the suit under the BBC Act, and the findings have been affirmed by the learned 1st appellate court.
8. The learned counsel for the respondents has also submitted that tenancy was created way back in the year 1985 and at that point of time itself the suit land was not a vacant land and having a structure thereon, therefore, the provision of BBC Act was duly applicable. He 3 2025:JHHC:16282 submits that merely because in Exhibit- A there is a mention of vacant land, the same is not a conclusive proof. Exhibit- A is an unregistered document and the learned courts have considered the evidences on record to come to a finding that at the time of tenancy, the suit land was not vacant land.
9. The learned counsel for the respondents has further submitted that in the agreement of the year 1986 (exhibit-A) , there is no mention about the creation of tenancy in the year 1985 although the plaint and the written statement clearly demonstrate that it stood admitted that tenancy was created way back in the year 1985 itself.
10. With regard to substantial question of law no. (B), the learned counsel for the respondents has submitted that the agreement for sale is required to be construed in order to come to a finding as to whether the relationship of landlord and tenant terminated upon entering into agreement for sale. He has further submitted that as per the agreement (exhibit-A) itself, the liability to pay rent at Rs. 100/- per month continued. He submits that in such circumstances it cannot be said that the tenancy between Narendra Prasad Sinha and the defendant discontinued upon entering into agreement for sale (exhibit-A).
11. Learned counsel for the respondents has submitted that so far as the plea regarding part performance of contract under section 53-A of of Transfer of Property Act is concerned, the same has been rightly rejected by both the learned courts. He has submitted that on bare perusal of exhibit-A, there is no timeline given for execution of sale- deed between Narendra Prasad Sinha and the defendant and at no point of time, the defendant filed any case for specific performance of contract. He submits that had the defendant filed any suit for specific performance of contract, the same would have failed as the basic ingredients for seeking specific performance of contract was itself missing in exhibit-A. He has also submitted that no substantial question of law has been framed with regard to specific performance of contract or with regard to part performance of contract under section 53-A of Transfer of Property Act and findings with respect to those matters stand concluded and binding on the parties.
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12. So far as the judgment relied upon by the learned Senior counsel for the appellant reported in (2000) 9 SCC 339 (supra) is concerned, the learned counsel for the respondents has submitted that the judgment itself says that the agreement between the parties is required to be considered and he has submitted that there cannot be a straightjacket formula that merely because the agreement of sale has been entered into, that would automatically end the tenancy between the parties.
13. The learned counsel for the respondents has also submitted that it is not in dispute that even after the agreement of sale (exhibit-A) entered in the year 1986 between Narendra Prasad Sinha and the defendant, the defendant continued to pay rent @ Rs. 100/- till the sale deed was executed by Narendra Prasad Sinha in favour of the plaintiff in the year 1997. He has submitted that no new jural relationship has been created and it was the existing jural relationship which continued after the purchase of the property by the plaintiff. Findings of the trial court.
14. As per the plaint, one Narendra Prasad Sinha was the absolute owner of the premises comprising of Holding No. 373 (old), 487 (present), ward no. 4 (old), ward no. 12 (present) of Giridih Municipality. The defendant was inducted as monthly tenant in the portion of the said holding with respect to one Khapraposh room and a platform in front of the room mentioned in the schedule to the plaint in the year 1985 by Narendra Prasad Sinha on a monthly rent of Rs. 300/- and the defendant came in possession as tenant. The defendant paid rent to Narendra Prasad Sinha upto the month of July, 1997. Narendra Prasad Sinha sold a portion of the said holding including the suit premises to the plaintiff by virtue of a registered deed of sale dated 21.08.1997 and then put the plaintiff in possession thereof as owner. The plaintiff being the purchaser intimated about the sale to the defendant by registered notice dated 06.10.1997 calling upon the defendant to pay monthly rent of Rs. 300/- per month to the plaintiff from 21.08.1997 and the defendant replied to the notice and denied the relationship of landlord and tenant between said Narendra Prasad 5 2025:JHHC:16282 Sinha and the defendant and also between the plaintiff and the defendant.
15. Further, as per the plaint, the defendant falsely alleged that he took vacant land and himself made construction and was running a shop and that it was false to say that Narendra Prasad Sinha realized Rs. 5000/- as premium and was realizing rent @ Rs. 100/- per month. In the plaint, it was further mentioned that it was falsely alleged in the reply sent by the defendant that Narendra Prasad Sinha entered into an oral agreement for sale of the scheduled property measuring 15 ft. X 8 ft. for Rs. 15,000/- and that Narendra Prasad Sinha had agreed to adjust the aforesaid premium of Rs. 5,000/- against consideration money of Rs. 15,000/-. It was alleged that the statement made by the defendant in reply to the legal notice was false, incorrect and concocted.
16. It was further the case of the plaintiff that on 22.08.1997, Narendra Prasad Sinha also intimated the defendant verbally about the sale in favour of the plaintiff and had directed the defendant to pay monthly rent to the plaintiff.
17. It was the case of the plaintiff that in spite of receipt of notice dated 06.10.1997, the defendant did not care to pay rent from 21.08.1997 to January, 1998 and denied the title of the plaintiff. The plea of personal necessity of the plaintiff was also raised in the plaint.
18. The suit was filed seeking eviction of the defendant and to put the plaintiff in Khas possession of the suit premises. A prayer was also made for a decree for arrears of rent amounting to Rs. 1,600/- in favour of the plaintiff. The schedule of the property was as under:
"Schedule One Khapraposh room and a platform in front of the room comprised in Holding in No.373 (old, 487 (present) Ward No.4 (old), Ward No.12 (present) of the Giridih Municipality butted and bounded as follows:-
North: Ashok Kumar Sinha, South - Part of the same Holding of the plff. in possession of tenant Gopal Prasad.
East Kalimanda Road, 6 2025:JHHC:16282 West- House of Krishna Murari Lal Sinha."
19. The defendant filed a written statement denying the relationship of landlord and tenant. He stated that in a partition amongst co-sharers, the property came in possession of Narendra Prasad Sinha which contained constructed portion and vacant land towards the road side of the constructed portion. Narendra Prasad Sinha was in need of money and therefore, he leased out the vacant portion and the defendant along with others were desirous of getting land for construction for business purposes and consequently, Narendra Prasad Sinha leased out 15 ft. from north to east having breadth of 8 ft. in dimension and realized a premium of Rs. 5,000/- to be adjusted when finally, the portion would be transferred to the respective lessees including the defendant. It was the specific case of the defendant that he had put a structure over a portion leased out to him at his own cost and covered the roof with corrugated sheets in the year 1985 which was still in existence and hence, it was contended that it was not correct to say that suit premises was Khapraposh.
20. It was further case of the defendant that Narendra Prasad Sinha had entered into a concluded contract for sale of the suit premises with the defendant on a consideration amount of Rs. 15,000/- and in the meantime, till the sale was to materialize, Narendra Prasad Sinha began to realize Rs. 100/- per month for use and occupation of land as rent from the defendant. The other lessees were also similarly situated who were Kali Sao, Gopal Prasad Sinha and Puran Ram, husband of the plaintiff.
21. It was further case of the defendant that the defendant offered remaining consideration to Narendra Prasad Sinha but at the instance of one Ashok Kumar Sinha, who was himself interested in the property, the matter was deferred. It was stated that on account of ill health of Narendra Prasad Sinha, Ashok Kumar Sinha in collusion with Kali Sao got a sale deed executed by Narendra Prasad Sinha without the knowledge of the defendant in the name of Kali Sao for all the 4 parts on 18.08.1997 and ultimately, a Title Suit No. 1 of 1998 was filed which was pending. In the meantime, Puran Ram (the 7 2025:JHHC:16282 husband of the plaintiff) got a sale-deed executed in the name of his wife with respect to 3 parts leaving the portion of Kali Sao and issued notice to the defendant on 06.10.1997 which was suitably replied. Narendra Prasad Sinha expired on 29.08.1997. It was asserted that the plaintiff had full knowledge of the agreement of sale in favour of the defendant with respect to the suit land and consequently, the defendant had rightly denied the relationship of landlord and tenant. It was also asserted that the construction over the vacant portion was done by the defendant.
22. It was further case of the defendant that the plaintiff and her husband knew fully well that there was a concluded contract between Narendra Prasad Sinha and the defendant.
23. The learned trial Court framed the following issues for consideration:
I. Is there any cause of action for this suit? II. Is the suit is maintainable?
III. Is there any relationship of landlord and tenant between the plaintiff and the defendant?
IV. Is the monthly rent payable by the defendant for the suit premises at the rate of Rs. 300/- per month?
V. Is the defendant defaulter?
VI. Does the plaintiff require the suit premises for her
own bonafide use and occupation and partial
eviction shall satisfy the propose of plaintiff? VII. Is the plaintiff entitled to a decree for ejectment of the defendant from the suit premises?
VIII. Is the plaintiff entitled to decree for Rs. 1600/- as arrear of rent from 21.8.97 to January, 1998?"
24. The plaintiff as well as defendant examined both oral and documentary evidences. The plaintiff examined altogether 4 witnesses including Puran Ram (P.W. 1) - husband of the plaintiff. The plaintiff also filed certified copy of the sale-deed executed by Narendra Prasad Sinha in favour of the plaintiff dated 21.08.1997 with map. The defendant examined 4 witnesses. The defendant himself was examined as D.W. 3. The defendant also filed the agreement dated 14.08.1986 executed by Narendra Prasad Sinha in favour of the defendant which was marked as Exhibit- A. 8 2025:JHHC:16282
25. Issue no. 3 was decided first by the learned trial court. The learned trial court, while deciding issue no. 3, recorded that the sale- deed dated 21.08.1997 (exhibit- 1) executed by Narendra Prasad Sinha in favour of the plaintiff stood admitted. The learned court also recorded that it was an admitted fact that there was relationship of landlord and tenant between Narendra Prasad Sinha and the defendant with respect to the suit premises. It was the case of the defendant that they had put the structure over the portion leased out to them at their own cost and covered it with corrugated sheets in the year 1985.
26. The learned trial court further recorded that the defendant who was a tenant under Narendra Prasad Sinha became the tenant of Chintu Devi - the plaintiff after sale of the property to the plaintiff and consequently, the defendant was also liable to pay at least admitted rent of Rs. 100/- per month to the plaintiff. The defendant had also argued that he had not at all paid rent to the plaintiff and therefore, there was no relationship of landlord and tenant between the plaintiff and the defendant. However, this argument was rejected by the learned trial court upon considering the argument of the plaintiff that the attornment of tenant is not a condition to create relationship of landlord and tenant. Ultimately, the issue no. 3 was decided in favour of the plaintiff.
27. While considering issue no. 5 and 6, the learned trial court decided both the issues in favour of the plaintiff. However, considering the substantial question of law involved in the present case, the findings in connection with issue no. 5 i.e., as to whether the defendant was a defaulter, and issue no. 6 i.e., as to whether the plaintiff required the suit premises for her own bonafide use and occupation and partial eviction should satisfy the purpose of the plaintiff, do not call for any further discussion.
28. The learned trial court, while deciding issue nos. 4 and 8 was of the view that the plaintiff was entitled to recover rent from 21.08.1997 to January, 1998 @ Rs. 100/- per month which was the rent being paid by the defendant to Narendra Prasad Sinha.
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29. The learned trial court, while deciding the issue nos. 1 and 2 i.e. the issue with regard to cause of action for filing the suit and the issue as to whether the suit was maintainable, has recorded a finding that as per paragraph 2 of the plaint, the defendant was inducted as a tenant by Narendra Prasad Sinha in a portion of his holding with respect to Khapraposh room and a platform in front of the room in the year 1985 and the defendant had admitted tenancy of the year 1985 as per paragraph 7 of the written statement, but in paragraph 6, the defendant had given a statement that he took vacant land and constructed corrugated roof and in paragraph 5 of his written statement, he had stated that Narendra Prasad Sinha began to realize the rent @ Rs. 100/- per month.
30. The learned trial court recorded a clear finding that it was immaterial as to whether the roof was Khapraposh or corrugated sheets as there was roofed premises on the suit land. To support this finding, the learned trial court referred to the evidence of D.W. - 1 who stated in his deposition that he had worked in constructing the shop and during his cross-examination at paragraph 6, he stated that over the suit land, there was a house in dilapidated condition and he had repaired the said structure. On the basis of this evidence, the learned trial court was of the view that the statement of D.W. -1 in his cross-examination showed that the constructed house was let out to the defendant and not vacant land. Further, the learned trial court went on to consider that even if it is assumed for the sake of argument that vacant land was let out, it was admitted that the construction has been made on the property and therefore, the provision of BBC Act would apply.
31. So far as the plea of the defendant regarding claiming possession in part performance of the contract between Narendra Prasad Sinha and defendant is concerned, the learned court recorded that the defendant had not disclosed the date of alleged agreement and it was not disclosed as to why the agreement in question was reduced in writing on 14.08.1986. While observing as aforesaid, it was also observed that as per the pleading it was admitted that defendant was 10 2025:JHHC:16282 inducted as a tenant in the year 1985 and the alleged agreement also took place simultaneously which was apparent from the statement made in paragraph 6, 7 and 16 of the written statement and that the defendant himself in his deposition in paragraph 2 admitted that inception of tenancy and agreement took place simultaneously. The learned court also referred to the evidence of D.W. 3 - the defendant himself who admitted in paragraph 2 of his deposition that inception of tenancy and agreement took place simultaneously. The learned trial court recorded that it remained unexplained by the defendant that if the agreement was entered in the year 1985, then why the same was reduced in writing on 14.08.1986. On this count, the learned trial court was of the view that there was no agreement of sale as alleged and therefore, the plea of part performance taken by the defendant was also not available as per section 53-A of Transfer of Property Act. The learned court further held that it was established that the defendant was tenant of Narendra Prasad Sinha and Narendra Prasad Sinha sold the suit property to the plaintiff and thus, the defendant became a tenant under the plaintiff and the defendant could not deny the plaintiff's title on the suit premises under section 116 of the Indian Evidence Act. Consequently, the learned trial court held that the suit was maintainable.
Findings of the appellate court
32. The learned 1st appellate court framed following points for determination:
"(i) Whether the suit is maintainable under Bihar Building (Lease, Rent & Eviction) Control Act?
(ii) Whether there is relationship of landlord and tenant between the plaintiff and the defendant?
(iii) Whether defendant/appellant is entitled to protection of provisions of Section 53-A of Transfer of Property Act to defend his possession?
(iv) Whether the plaintiff is entitled to the decree for eviction against the defendant on the ground of default in payment of rent and bonafide requirement of the suit premises for personal use and occupation?"11
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33. With respect to the point of determination no. (i), the learned 1 st appellate court recorded its finding at paragraph no. 11 that from oral evidence of defendant himself, at the time of lease there was a dilapidated room over the suit land which was repaired and it was not totally vacant land. The learned 1st appellate court summarized its finding on point of determination no. (i) and recorded as under:
"For the aforesaid discussions and reasons, it is crystal clear that the defendant was leased out 15 ft x 8 ft land including dilapidated room, which was later on repaired by the defendant for the purpose of making shop hence the provisions of Bihar Buildings (Lease, Rent & Eviction) Control Act is applicable in this case and the suit is maintainable thereunder."
The learned 1st appellate court accordingly decided the point of determination no. (i) against the defendant and in favour of the plaintiff.
34. The learned 1st appellate court took up the points of determination no. (ii) and (iii) together and recorded its findings at paragraph 12. The learned 1st appellate court considered the landlord- tenant relationship between the plaintiff and the defendant and also considered section 53-A of Transfer of Property Act and recorded its findings as under:
"In the instant case Ext A goes to show that Narendra Prasad Sinha has agreed to sell his vacant land 15 ft x 8 ft near his house to Om Prakash Kesri (defendant) for Rs.15,000/- out of which Rs.5,000/- earnest money was given. It is further mentioned that said Om Prakash Kesri will construct a shop in the above land and carry on it until execution of sale deed for monthly payment of rent Rs.100/- for use of the said land. It bears the signature of Narendra Prasad Sinha @ Buddhu Lal Sinha, Om Prakash Kesri (defendant) and one witness Mohan Prasad Gahlot dt.14.08.86. There is no pleading in the written statement of the appellant about date of execution of the above agreement in his favour although tenancy has been admitted to be created in the year 1985. There is no pleading that since 1986 he was always ready and willing to perform his part of the contract and nothing has been done by him towards completion of the sale and execution of the sale deed in his favour. No period is stipulated for execution of sale deed in the said agreement. No rent receipt issued by 12 2025:JHHC:16282 Narendra Prasad Sinha has been adduced in respect of rent Rs.100/- per month. There is no mention in the Ext A that Om Prakash Kesri is already in possession of the land in the year 1985 as part performance of the agreement with him on monthly rental of Rs. 100/-. Thus, the contents of Ext A as well as pleading in written statement differs in material particulars, which conclusively indicates that since 1986 the appellant/defendant has taken till the time of filing this suit, for execution of sale deed in his favour. He has failed to show his readiness and willingness to perform his part of the contract. There is no evidence to show advance payment of Rs.5000/- to Narendra Prasad Sinha by the defendant. In this regard, the defendant Om Prakash Kesri (D.W.3) in his cross- examination has admitted that he gives rent Rs.100/-per month for which no written document was prepared and the agreement which was executed by Narendra Prasad Sinha was not given to his lawyer in spite of his demand. He has further admitted that after execution of agreement to sell he constructed the shop and thereafter started paying rent to Narendra Prasad Sinha and for the first time in the year 1986 he paid rent to the landlord. He has also admitted that he never issued any notice to Narendra Prasad Sinha for execution of sale deed in his favour and never attempted to give balance amount of consideration money, nor he instituted any case of specific performance of the said contract. Moreover, it has not been proved that on Ext A there is signature of Narendra Prasad Sinha and none of the oral witnesses have deposed that the said agreement was signed by Narendra Prasad Sinha in their presence.
These facts are sufficient to show that the ingredients of Section 53-A of Transfer of Property Act has not been fulfilled by the defendant/appellant as is apparent from the aforesaid citations relied upon by the appellant/defendant himself. For the aforesaid discussions and reasons I find that admittedly there is landlord and tenant relationship between plaintiff and defendant and the defendant has no right to defend his possession on the strength of doctrine of part performance by virtue of Ext A."
35. The findings of the learned 1st appellate court while deciding points of determination no. (ii) and (iii) clearly reveals that the learned 1st appellate court has held that the defendant had no right to defend his possession on the strength of doctrine of part performance by 13 2025:JHHC:16282 virtue of exhibit- A as well as pleading in written statement differed in material particulars and since 1986, the defendant had taken time for filing the suit and the defendant failed to show his readiness and willingness to perform his part of the contract. The defendant, in his cross-examination, had also admitted that he had given rent @ Rs. 100/- per month for which no written document was prepared and the agreement which was executed by Narendra Prasad Sinha was not given to his lawyer in spite of his demand. Accordingly, the learned 1st appellate court also decided the points of determination no. (ii) and
(iii) against the appellant (defendant) and in favour of the respondent (plaintiff).
36. The learned 1st appellate court thereafter considered the point of determination no. (iv) with regard to default in payment of rent and bonafide requirement of the suit premises by the plaintiff for personal use and occupation and recorded its findings at paragraph 13 which reads as under:
" It is the case of plaintiff that since 21.08.97 to January 98 defendant has not paid the monthly rent to the plaintiff. The defendant has denied payment of any rent to the plaintiff challenging her entitlement to receive any rent as there was no existence of landlord and tenant relationship between them by virtue of agreement to sale in his favour. In the foregoing paras I have recorded findings that there is relationship of landlord and tenant between plaintiff and defendant by virtue of transfer of the suit premises in favour of plaintiff and she stepped into the shoes of her transferer Narendra Prasad Sinha. Hence, defendant was legally bound to attorn rent to the plaintiff due to his failure in payment of agreed rent to the transferee (plaintiff) definitely he became defaulter within the provisions of Section 11 of Bihar Building (Lease, Rent & Eviction) Control Act. Similarly, another ground for eviction of defendant pleaded by plaintiff is that her husband is carrying on business of seeds and fertilizers in a rented premises and she requires the suit premises for her bonafide need for carrying on business. This plea has also not been denied by the defendant specifically rather, evasively. This fact has also been proved by plaintiff's husband in his evidence. The bonafide requirement of the plaintiff has not been rebutted by the defendant by any cogent evidence.14
2025:JHHC:16282 For the aforesaid discussions and reasons recorded by me I find that plaintiff has been able to prove the defendant as defaulter in payment of rent as well as bonafide requirement of the suit premises for her own use and occupation and carrying on a business. Accordingly, this point is also decided in favour of respondent and against the appellant."
37. Accordingly, the learned 1st appellate court decided all the points of determination in favour of the plaintiff and against the defendant.
38. The learned 1st appellate court concluded its findings at paragraph 14 of its judgment which reads as under:
"14. From the foregoing discussions and reasons, I arrive at definite conclusion that there is landlord and tenant relationship between the plaintiff and defendant and plaintiff is landlord by virtue of transfer of the suit premises in her favour through registered sale deed (Ext 1) by the lawful owner of it and became landlord within the meaning of Section 2 of Bihar Building (Lease, Rent and Eviction) Control Act. It is also established that the suit land was not vacant land at the time of making its lease in favour of defendant by the vendor of the plaintiff rather, it was a dilapidated room which was repaired by the defendant. The provisions of Section 53-A Transfer of Property Act is also not available to the defendant in view of the fact that from Ext A (the said agreement to sale) the terms necessary to constitute the transfer cannot be ascertained with reasonable certainty. It is also proved that the defendant has failed to prove that he has done some act in furtherance of the said contract or performed his part of the contract or at any point of time he was ready and willing to perform his part. As such, doctrine of part performance is not available to the defendant. The plaintiff has proved the defendant as defaulter as well as her bonafide requirement of the suit premises, as such, there was valid cause of action for the suit and it was maintainable under the Bihar Building (Lease, Rent & Eviction) Control Act. In this view of the matter, I do not find any illegality or infirmity in the impugned judgment and decree, which is hereby upheld and confirmed."
39. The learned 1st appellate court accordingly dismissed the appeal with costs on contest.
Findings of this court.
I.A. No. 310 of 2023 152025:JHHC:16282
40. Before dealing with the arguments of the respective parties, it is important to note that one interlocutory application being I.A. No. 310 of 2023 has been filed at 2nd appellate stage seeking to adduce additional evidence to bring on record photocopy of the plaint and written statement of another title suit being Title Suit No. 121 of 2012. However, no arguments have been advanced by referring to the aforesaid interlocutory application nor the same has been referred to during the course of arguments by the learned counsels for the parties. Otherwise also the plaint and written statement of another case has no bearing in these proceedings and certainly has no bearing on the substantial question of law involved in this case. The fact that the plaintiff had purchased the property through registered deed in the year 1997 is not in dispute and the registered deed is not under challenge in the suit. Accordingly, interlocutory application being I.A No. 310 of 2023 is dismissed as not pressed.
The substantial question of law No. A
41. The finding of facts recorded by both the learned courts upon consideration of materials on record reveals that it was the admitted case of the defendant that they had taken the property on rent at Rs. 100/- per month as back as in the year 1985, but they claimed that the rent was for vacant land and then they erected the structure over the suit premises. However, both the learned courts have recorded a clear finding of fact that the defendant was leased out 15 ft. X 8 ft. land including dilapidated room which was later on repaired by the defendant for the purpose of making shop. This finding of fact arrived upon appreciation of materials on record, is not the subject matter of any substantial question of law as framed by this Court. In fact, the impugned judgments and the records reveal that such finding of fact was primarily based on the oral evidence led by the defendant himself. The learned Court has recorded that the defendant admittedly started running tea shop in the year 1985 and in this connection, D.W. 1 had deposed that 15 ft. X 8 ft. vacant land was taken by the defendant on which he had constructed room for making shop. However, in his cross-examination he admitted that at the time of construction of the 16 2025:JHHC:16282 said shop there was a room in dilapidated condition which he had repaired. This Court has gone through the evidence of D.W-1 and is of the considered view that his evidence has been rightly recorded and considered by the courts. Thus, the person who had participated in the construction work of the shop-room had himself admitted that he had only repaired the dilapidated room existing on the suit premises. No perversity in connection with appreciation of the evidence of the defence witnesses as such has been pointed out by the learned counsel appearing on behalf of the appellant.
42. So far as the exhibit- A is concerned, the same is dated 14.08.1986 and upon perusal of the same, it refers to agreement in connection with vacant land and also payment of advance of Rs. 5000/- out of total consideration amount of Rs. 15000/-. It also states that the defendant would construct a shop on the land at his own cost and would run the shop and till the sale-deed in connection with the land is executed, the defendant would pay an amount of Rs. 100/- per month for the use of the land.
43. The evidences on record reveal that it stood admitted that the shop was running on the property since 1985 and that the property was given in tenancy since 1985 itself. This finding of fact has been recorded by the court and this finding is not in dispute.
44. This Court is of the considered view that the agreement (exhibit- A) cannot be seen in isolation and admittedly, the agreement (exhibit- A) is an unregistered document and even the defendant never acted upon the said agreement for seeking specific performance of contract nor the said agreement revealed as to after how much time the sale-deed with regard to the land was to be executed. It is also important to note that as per the agreement the rent was fixed for the land at Rs. 100/- per month, but the said agreement does not reveal the commencement of tenancy since 1985 nor does it reveal that the tenancy since 1985 was for the rent of Rs. 100/- per month. The recital in the agreement (exhibit- A) executed in the year 1986 that the land is vacant and a shop would be constructed is contrary to the materials on record on the basis of which it has been proved that the tenancy had 17 2025:JHHC:16282 commenced in the year 1985 and the shop was running since 1985 and that a room in dilapidated condition was standing prior to 1985 and the D.W-1 had repaired the room and made it to a shop with roof of corrugated sheet .
45. Considering the totality of facts and circumstances of the case and particularly the evidences brought on record by none other than the defendant that on the date of creation of tenancy, there was a structure in dilapidated condition which was repaired for its use, this Court is of the considered view that whatever be the nature of construction over the property, once there is a construction even if it was in a dilapidated condition at the time of tenancy, the applicability of BBC Act cannot be denied. This Court is also of the view that the the agreement (exhibit- A) cannot be seen in isolation particularly in view of the fact that the tenancy admittedly commenced in the year 1985 and the agreement (exhibit- A) dated 14.08.1986 does not even refer to the existence of tenancy and makes no reference to the continuing tenancy since 1985 along with a room in dilapidated condition which was standing prior to 1985 and the D.W-1 had repaired the room and made it to a shop with roof of corrugated sheet.
46. Further, it is also important to note that the perusal of the evidence of D.W. -1 shows that his evidence is fully reliable and he is an independent witness, though he deposed from the side of the defendant. His evidence has been rightly believed by both the learned courts to come to a finding that a room in dilapidated condition stood on the property which was only repaired by D.W. 1 at the instance of the defendant and corrugated sheet was placed at the roof and repair of the wall was also done.
47. In view of the aforesaid findings, there is no doubt that tenancy was created in the year 1985 with a room in dilapidated condition over the suit property and the room was repaired and converted into shop with roof of corrugated sheet and therefore the suit for eviction was maintainable under BBC Act. The finding in this connection has been arrived by the court by considering all the materials on record including exhibit-A that the suit was maintainable under BBC Act and 18 2025:JHHC:16282 the same does not call for any interference. The substantial question of law No. A is accordingly answered in favour of the respondents (plaintiffs- landlord) and against the appellant (defendant - tenant).
The substantial question of law No. B
48. So far as substantial question of law no. (B) is concerned, this Court finds that even as per exhibit-A which is the agreement for sale dated 14.08.1986, the defendant was to pay rent of Rs. 100/- per month till the sale-deed in connection with the property is executed. Admittedly, no sale-deed was executed. The aforesaid clause in the agreement regarding continuation to pay rent itself indicates that the parties agreed to continuation of tenancy till sale deed is executed. Further, in the present case the question of default arose only when the defendant refused to pay rent to the plaintiff from 21.08.1997 in spite of demand, i.e. after the property was purchased by the plaintiff through registered sale deed. It is not the case of the defendant that after entering into the agreement for sale he never paid rent to Narendra Prasad Sinha who was the vendor of the plaintiff.
49. It is further not in dispute that after purchasing the property in the year 1997 the plaintiff had issued legal notice to the defendant for payment of rent but the defendant refused to pay rent in response to the legal notice.
50. This Court, upon perusal of the exhibit- A, is of the view that in spite of entering into the agreement (exhibit- A) the tenancy continued as per the agreement (exhibit- A) itself, and the rent was to be paid till execution of sale-deed. Admittedly, Narendra Prasad Sinha never executed sale-deed in favour of the defendant and consequently, this Court is of the considered view that the tenancy was continuing and upon purchase of the property by the plaintiff, the defendant was under legal obligation to pay rent to the plaintiff which he refused to pay and became a defaulter.
51. So far as the judgment relied upon by the appellant reported in (2000) 9 SCC 339 (Supra) is concerned, the point for consideration in the said case was, whether on the execution of agreement of sale by 19 2025:JHHC:16282 the landlord with the tenant and landlord having received substantial portion of sale consideration, the relationship of landlord-tenant inter se between them ceases and fresh rights and obligations flow from the said agreement. In the said case, the agreement of sale was executed 04.05.1977 and the tenant paid rent regularly only upto March, 1977 and thereafter did not pay the rent regularly. The terms and conditions of the agreement of sale have been quoted in the said judgment itself wherein it was clearly mentioned that the balance consideration will be paid at the time of registration and the landlady shall complete the transaction of sale and conveyance and the property demised was already been surrendered to possession of the tenant. It was the case of the tenant that after entering into the agreement, the landlady accepted Rs. 20,000/- confirming delivery of possession and in this context, there was clear intent of the landlady to change the nature of relationship between the parties and much emphasis was laid on the words "already been surrendered" which found place in the agreement involved in the said case. In this background, the Hon'ble Supreme Court held that any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitations under the law. The Hon'ble Supreme Court further noted that earlier when the appellants were inducted into tenancy it only meant that both agreed for a relationship of landlord and tenant and later on, when the landlord decided to sell the property to the tenant and the tenant agreed by entering into agreement, they by their positive act changed their relationship as purchaser and seller. Paragraphs 6 to 9 of the aforesaid judgment are quoted as under:
"6. Any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitations under the law. Earlier when the appellants were inducted into tenancy it only means both agreed that their relationship was to be that of landlord and tenant. Later when the landlord decided to sell this property to the tenant and the tenant agreed by entering into agreement, they by their positive act changed their relationship as purchaser and seller. When the seller-landlord accepts the sum, he actually acts under this agreement. This 20 2025:JHHC:16282 acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change, their relationship of landlord-tenant ceases.
7. This Court in Arjunlal Bhatt Mall Gothani v. Girish Chandra Dutta (1973) 2 SCC 197 held as under:
"The appellants were tenants in the premises of the respondent landlord and three suits, including an eviction suit, were pending against them. By an agreement between the appellants and the respondent, the respondent agreed to sell the whole property to the appellants for a certain sum to be paid to him by equal instalments. Clause (5) of the agreement provided that in case of default of any instalment, the agreement for sale would stand cancelled and if the purchasers failed to pay the defaulted instalments within one month's notice the payments made would stand forfeited and purchasers would make over possession of the property to the vendor."
"Under clause (5) of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does not arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit could not be filed without giving notice under the Transfer of Property Act. We are of opinion that when the agreement, dated June 7, 1959, was entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked out on the basis of that agreement."
8. This decision clearly spells out that once there is agreement of sale between a landlord and a tenant, the old relationship as such comes to an end. It goes on to record that even after the cancellation of such agreement of sale the status of tenant is not restored as such. In other words, on the date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that of a purchaser and a seller.
9. Thus, within this legal premises, the submission by learned counsel for the respondent for revival of their old relationship 21 2025:JHHC:16282 of landlord and tenant when she repudiates this agreement by sending back to the tenant Rs. 20,000 through a cheque (which according to the appellant was not encashed) cannot be accepted. So, we have no hesitation to reject the same. Every conduct of the landlady right from the date of entering into agreement of sale, accepting money towards the sale consideration, delivering possession in lieu of such agreement all clearly indicates and has to be construed in law that she repudiated her old relationship of landlord and tenant. Thus, after this parties enter into a new cloak of seller and purchaser and their relationship is to be governed under the said terms of the agreement. Every right and obligation thereafter would flow from it. Even if parties under the agreement of sale do not perform their obligations, remedy may be availed in law as permissible under in law. Hence, we have no hesitation to hold that the courts below including the High Court committed error in holding that the tenant committed wilful default. When the appellant is no more the tenant how can non-payment be construed as wilful default?"
(emphasis supplied)
52. After considering the conduct of the landlady and also the agreement of sale involved in the said case, it has been held in the aforesaid judgment that once accepting the change of relationship, the relationship of landlord and tenant ceases. In the present case, in spite of entering into an agreement of sale (exhibit-A) between the defendant and the ex-landlord Narendra Prasad Sinha, the parties to the agreement clearly intended that the relationship of landlord and tenant would continue and the defendant would continue to pay the rent at Rs. 100/- per month till the execution of the sale-deed. Thus, considering the agreement (exhibit- A), the relationship between the defendant and Narendra Prasad Sinha while entering into the agreement (exhibit- A) in the year 1986 continued to be that of tenant and landlord . The plaintiff entered into the shoes of the ex-landlord Narendra Prasad Sinha upon purchase of the property vide registered sale deed in the year 1997 and the relationship of landlord and tenant between the plaintiff and the defendant continued and the plaintiff acquired the status of landlord in place of Narendra Prasad Sinha. The substantial question of law no. (B) is accordingly decided in favour of the respondents(plaintiffs- landlord) and against the appellant( defendant - tenant) .22
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53. All the aforesaid substantial questions of law having been answered in favour of the respondent (plaintiffs-landlord) and against the appellant (defendant-tenant) the impugned judgement and decree do not call for any interference.
54. This second appeal is accordingly dismissed.
55. The interlocutory application being I.A. No. 310 of 2023 is dismissed as not pressed as discussed above in paragraph 40 of this judgment.
56. Other pending I.As are closed.
57. Interim order stands vacated.
58. Let a copy of this order be communicated to the concerned courts through "Fax/E-mail".
(Anubha Rawat Choudhary, J.) Pankaj-/Rakesh-/ 23