Patna High Court
Kanhaiya Lal vs Shivjee Prasad And Ors. [Alongwith ... on 6 January, 1998
Equivalent citations: 1998(2)BLJR931
JUDGMENT S.N. Jha, J.
1. These two revision petitions under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (in short 'the Act'), arising out of the same judgment, have been heard together and are disposed of by this common order.
2. The plaintiff-opposite party filed Eviction Suit No. 13 of 1989 for eviction of one Most. Tetari from the suit premises standing over 11 dhurs land of plot No. 1239 situate at Mirganj on the ground of personal necessity. According to the plaintiff, the aforesaid plot was Gairmajrua of Hathwa Raj, different portions of which were settled by it with different persons for construction of houses and shops. Butan Ram, grand father of the plaintiff and Mahendra Ram took settlement of the disputed land from Hathwa Raj on 2.3.25 on Nazrana of Rs. 22/-. No rent was fixed as the settlement was for residential purposes. Butan Ram constructed tiled-roof room thereon. He later took settlement of another piece of land adjacent west of the disputed land over which also he constructed house and started living therein. The house situate over disputed land was used for keeping fuel and shop articles. In February, 1975 Radha Sah, Tetari's husband, took the premises on rent. It is said that Radha Sah had two wives. From the first wife he had a son Rama Sah. Radha Sah took the disputed house on rent as the relationship between Rama Sah and Tetari was estranged. Radha Sah and Tetari thereafter started living in that house. Radha Sah died in the year 1978. Thereafter, Tetari continued to pay the rent. She did so upto January 1987, whereafter she stopped paying the same. The suit was filed on the ground that the size of the plaintiff's family had increased and the plaintiff was experiencing difficulties in living in the other house situate on the western side of the disputed house.
3. Most Tetari filed written statement and contested the claim of the plaintiff. She, inter alia, denied the story of settlement from the Hathwa Raj set up by the plaintiff. She further denied the relationship of landlord and tenant. According to her, the land in question had been settled in favour of her husband on 5.5.22 i.e. prior to the alleged settlement in favour of the plaintiff. She further denied the plaintiff's case regarding his reasonable and bona fide requirement of the suit premises. According to her, the double storeyed house situate over portion of plot No. 1239 in which the plaintiff resides is sufficient for his need.
4. The Court below accepted the plaintiff's case and decreed the suit on 12.7.91 Tetari was directed to vacate the suit premises and deliver its vacant possession to the plaintiff. Tetari filed civil revision, C.R. No. 1599 of 1991, in this Court challenging the said order of eviction. The revision was filed on 9.9.91. Soon thereafter on 20.10.91 she died. On 25.5.92 present defendant No. 1 Kanhaiya Lal filed an application for his substitution in place of Tetari on the ground that he had purchased the suit land/premises from her daughter Shail Kumari on 25.11.91. From the record of C.R. No. 1599 of 1991 it appears that the said application was put up for orders on 7.9.92 when notice was ordered to be "served on the proposed heirs sought to be substituted on 30.10.92 the said order was virtually modified. The Bench observed, "No step is to be taken for service on the proposed heirs sought to be substituted because the sole heir is being represented by the counsel and on whose behalf Vakalatnama has been filed". It appears that the said order dated 30.10.92 was understood by the office as order of substitution of Kanhaiya Lal in place of deceased petitioner Most. Tetari Devi and, accordingly, his name was mentioned in the cause title in her place. The civil revision was finally allowed in course of time on 22.12.95. The judgment and order dated 12.7.91 was set aside and the case was sent back to the trial Court for fresh hearing in accordance with law.
5. In the meantime, in fact, prior to the purchase by Kanhaiya Lal, the present defendant Nos. 2 and 3 Ramdeo Prasad and Baidyanath Gond had purchased the suit land/premises from Rama Sah (son of Radha Sah) and his son on 14.11.91. After remand they filed application for being added as defendants, which was allowed. The plaintiff did not oppose the prayer, Ramdeo Prasad and Baidyanath Gond were accordingly added as defendant Nos. 2 and 3. Kanhaiya Lal also filed an application for addition/substitution (although his name had been substituted, albeit without: any express order of this Court in place of Most. Tetari in the civil revision). The prayer was allowed despite opposition by the plaintiff. Kanhaiya Lal was added as defendant No. 1.
6. Both Kanhaiya Lal and Ramdeo Prasad and Baidyanath Gond filed their written statement. While Kanhaiya Lal reiterated the case pleaded by Most. Tetari, adding further that Radha Sah had two wives and both Rama Sah and Shail Kumari were born to him from his first wife, Ramdeo Prasad and Baidyanath Gond in their written statement supported the plaintiff's case of settlement in favour of his ancestor. They further pleaded that Radha Sah had only one wife from whom Rama Sah was born. According to them. Tetari was the maid servant of Radha Sah, who lived with him as his concubine. Shail Kumari was born to her from another person. After Shail Kumari attained puberty she fled away to Bathua Bazar where she started living. According to these defendants further, after death of Tetari on 20.11.91 Rama Sah came in possession of the premises. He and his son later sold the same to them on 14.11.91.
7. The Court below did not go into the question of title on the ground that the suit was one for eviction. Only possession was to be seen. It disbelieved the case of Kanhaiya Lal as being in possession of the suit premises. Accepting the plaintiff's case in this regard, it passed the order of eviction against Ramdeo Prasad and Baidyanath Gond. Both the section of defendants have, accordingly, come in revision.
8. Mr Shashi Shekhar Dwivedi, learned Counsel for Kanhaiya Lal, petitioner in C.R. 852 of 1997, submitted that as per the own case pleaded by the plaintiff paragraph 5 of the pLalnt, the suit premises had been let out to Radha Sah and Tetari on account of altercation between Rama Sah and Tetari, and, thus, it is Most. Tetari alone who would be the tenant after the death of Radha Sah. Defendant Nos. 2 and 3 being purchasers from Rama Sah (and his sons) cannot be treated to be tenant Counsel urged that if the plaintiff wanted any decree against defendant Nos.2 and 3 treating them as tenants, they should have amended their plaint and sought relief of eviction against them. Reference was made to paragraphs 57 and 58 of the deposition of the plaintiff as P.W. 5. Mr Dwivedi contended that defendant Nos. 2 and 3 have set up rival claim vis-a-vis defendant No. 1, which is not permissible and cannot be decided in an eviction suit. Counsel submitted that in an appropriate case the Court may decide the title and order eviction of the defendant in an eviction suit under Order VII Rule 7 of the Code of Civil Procedure but that is possible only as between the plaintiff and defendant and not as between two sets of defendant. He pointed out that in the present case the Court below did not decide the question of title even incidentally. According to the Counsel, thus, defendant Nos. 2 and 3 have no place in the suit. Being interlopers the findings recorded by the Court below either in their favour or against them are nonest, the civil revision at their instance, therefore, is not maintainable. It was submitted that correctness of the order of addition/substitution of defendant Nos. 2 and 3 can be challenged even at the stage of revision (which is like appeal, being the only remedy provided under the Act) in terms of Section 105 of the Code of Civil Procedure. Mr. Dwivedi pointed out that as per the findings recorded by the Court below it was Most. Tetari, the original defendant, and after her death, defendant Nos. 2 and 3, who are the tenants. He contended that if defendant No. 1 is not tenant the suit for eviction is bound to fail as with the death of Most. Tetari her tenancy would be deemed to have come to an end since defendant Nos. 2 and 3 claim tenancy through Rama Sah and not Tetari. He stated that even the plaintiff does not lay that defendant Nos. 2 and 3 are his tenants.
9. Mr. Shiv Nandan Roy, learned Counsel for the plaintiff, submitted that the civil revision, C.R. 852 of 1997, by Kanhaiya Lal is not maintainable as no order of eviction has been passed against him. He contended that Kanhaiya Lal cannot be treated to be a tenant as he is only a transferee pendente lite. It was pointed out that 'transferee' is not included in the definition of 'tenant' under Section 2(h) of the Act. It was submitted that in terms of Section 5 of the Transfer of Property Act there can be transfer of only 'property'; tenancy not being property is not transferable. Counsel referred to the Whaton's Law Lexicon, Legal Theserus by William C. Burton as well as Salmond's Jurisprudence in this connection. Counsel submitted that the claim of independent title by Tetari has been considered incidentally, as is required in an eviction suit, an rejected by the Court below.
10. Mr. Mahesh Narain Parbat, learned Counsel for defendant Nos. 2 and 3, petitioners in C.R. No. 949 of 1997, submitted that defendant No. 1 and defendant Nos. 2 and 3 are in the same boat being purchasers from heirs of Radha Sah. While defendant No. 1 claims through Shail Kumar (daughter from Most. Tetari, the second wife), defendant Nos. 2 and 3 claim through Rama Sah (son from the first wife). Thus, if the submission of the Plaintiff's Counsel is accepted and Kanhaiya Lal is held to be not tenant, the same argument should apply to these defendants as well and the suit of eviction, therefore, should be dismissed. He pointed out that the Court below has decided the case only on the point of tenancy without going into the question of title. He urged that the trial Court should be directed to decide the title of defendants Nos. 2 and 3 along with the plaintiff and defendant No. 1.
11. Mr Shiv Nandan Roy, Counsel for the plaintiff, did not make any separate argument in C.R. 949 of 1997.
12. I have considered the submission of the Counsel for he parties. From the narration of the. cases of the parties and the submission made on their behalf it is clear that there is inter se dispute not only between the plaintiff on the one hand and the defendants on the other but also as between the two sets of defendants. While the dispute as between the plaintiff and Most. Tetari (now defendant No. 1 Kanhaiya Lal) involves question of title because Tetari claimed to have got the land in question in settlement earlier in point of time on which her husband had built the premises in question, defendant Nos. 2 and 3 do not claim independent title from the erstwhile owner i.e. Hathwa Raj in so many word, but they claim to be tenants in occupation of the premises. The point for consideration is whether by reason of the respective purchase from Shail Kumari or Rama Sah (and his son,), either defendant No. 1 or defendant Nos. 2 and 3 can be said to be tenants.
13. Section 2(h) of the Act defines 'tenant' as follows:
(h) "tenant" means any person by whom, or on whose account rent is payable for a building and includes-
(i) a person continuing in possession after the termination of the tenancy in his favour and
(ii) a person who occupies a building as an employee of the landlord of such building either on payment of rent or otherwise.
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and condition specified, respectively, in Explanations I and II to his clause, such of the aforesaid persons-
(a) spouse;
(b) son or unmarried daughter, or where there are both, both of them;
(c) parents
(d) daughter-in-law, being the widow of predeceased son, as had been ordinarily residing in the premises with such person as a member or members or his family upto the date of his death, but does not include any person against whom an order or decree for eviction has been made.
Explanations I, II and III omitted as they merely lay down the order of succession as between the different categories of heirs mentioned in Clause (iii) above and are not relevant for the purpose of this case.
From the above definition of 'tenant' it would appear that besides the person, understood in the ordinary sense of the term as tenant liable to pay rent, statutory tenant, i.e. a person continuing in possession after the tenancy is terminated, an employee in occupation of building owned by the employer as well as the heirs mentioned in Sub-clauses (a), (b), (c) and (d) are also deemed, by fiction of law, to be tenants. In otherwords, besides the person who is inducted as tenant and with whom the owner enters into relationship of the landlord and tenant, such other persons who came in any of the three categories, viz, (i),(ii) and (iii) would also be called tenant within the meaning of and for the purpose of the Act. Thus, if the tenancy of the person is terminated, he continues to be statutory tenant entitled to the protection of the Act. Likewise, if the tenant dies while in occupation of the building, his spouse, son or unmarried daughter, parent and daughter-in-law of predeceased son, subject to the other conditions mentioned on the clause, would also be deemed to be tenant(s). The point to be noted is that the transferee from tenant is not included within the definition of the term. In other words, if the tenant or his heir, be it spouse or son or unmarried daughter or parent or daughter-in-law of a predeceased son, transfers his tenancy rights, the transferee would not be deemed to be tenant within the meaning of Section 2(h) of the Act. The position would, of course, be different if the landlord accepts such transferee as tenant on the principle of attornment
14. The Court in Nenadhar Mishra v. Dipak Kumar Sharan 1996 PLR 57) had occasion to consider somewhat similar question, albeit in a different context. In that case, the tenant of the building had executed a will on the basis of which the Executor filed application for intervention under Order I Rule 10(2) of the Code of Civil Procedure. This Court rejected the claim of the intervenor on the ground that there cannot be bequeath of tenancy rights as will can be executed with respect to 'property' under Section 2(h) of the Indian Succession Act. This Court noticed a decision of the Apex Court in Basant Pratap Pandit v. Anand Trimbak Submis , wherein the claim of executor/legatee for eviction of the tenant was rejected observing that when a tenant is in occupation of the premises, the tenancy is taken by him not for his own benefit but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies the protection had to be given to the members of the family as well. Such protection, however, is not available to legatees, for a legatee could be an outsider as well. It can be said that if an outsider as a legatee does not have legal competence to claim eviction or resist the claim for eviction, on the same logic, an outsider-transferee cannot have the same legal character or competence as the tenant to resist the claim for eviction.
15. I find force in the submissions of Mr. Dwivedi, Counsel for the first defendant Kanhaiya Lal, that in view of the specific case pleaded by the plaintiff in paragraph 5 of the plaint that the very purpose of tenancy was separate occupation of the premises by himself and his second wife Most. Tetari, it is Most. Tetari alone who would be tenant, in the event her claim of independent title is rejected. Defendant Nos. 2 and 3 being purchasers from Rama Sah, the son from the first wife of Radha Sah, cannot be treated to be tenants. In fact, in view of the case pleaded by them (defendant Nos. 2 and 3), Tetari being a concubine and not wife of Radha Sah, Rama Sah born from the first wife would not be deemed to be tenant even if the term 'son' occurring in Section 2(h)(iii)(b) is given an enlarged meaning so as to include step son, which would have been the position if the said defendant had admitted Teta'ri Devi to be second wife of Radha Sah. I also find force in the submissions of Mr, Dwivedi that inter-se dispute claimed between the two sets of defendants cannot be decided in a suit for eviction.
16. In my opinion, on the own submissions, made on behalf of the plaintiff, that transferees are not included within the definition of tenant, the order of eviction passed in the present suit, which has been decided as a suit for eviction, has to be set aside. It hardly need be emphasised that the relationship of landlord and tenant between the plaintiff and the defendant is the foundation of the suit for eviction. Where such relationship does not exist the decree of eviction cannot be passed. In appropriate case, as rightly submitted by Mr. Dwivedi, it is open to the Court to grant the relief of eviction on the basis of title in terms of provisions of Order VII Rule 7 of the Code of Civil Procedure. But that is possible where the plaintiff and the defendant claim independent title i.e. where the suit is confined to the plaintiff on the one hand and the defendant on the other. Where the two sets of defendants set up claims, adverse to each other, I have doubts, if the provisions of Order VI Rule 7 of the Code can be invoked. In any view, this is not what has been done in the present case. Prima facie, it appears that if the questions relating to title were or are to be gone into, the respective vendor of the defendants would be necessary or proper parties. In view of the case pleaded by the parties, particularly the, first defendant who, following the defence of Most. Tetari claiming independent title, I am inclined to think, the Court should have decided the question of title between them. In these premises, the order of eviction cannot be sustained.
17. In the result, the impugned judgment and order dated 25.2.97 is set aside and these civil revisions are allowed, The case is sent back to the Court below for fresh trial. It will be open to the parties, should they so desire, to amend their pleadings and adduce further evidence on question of title. Needless to say that in such an eventuality the plaintiff may be asked to pay further Court fee in accordance with law. I will make no order as to cost.