Jharkhand High Court
Mostt. Badama Devi And Ors. vs Ram Lakshman Sharma @ Pancham Singh on 18 February, 2002
JUDGMENT Gurusharan Sharma, J.
1. Ramlal Khubi Sharma had two sons, namely, Jadunandan Sharma and Ramlaxman Sharma, alias Pancham Singh. Jadunandan Sharma filed Title Suit No. 34 of 1983 against his brother for eviction from the Suit Holding No. 110 situated in new Sitaramdera Basti in Jamshedpur town, detailed in Schedule 'A' to the plaint under the provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982.
2. Plaintiff claimed to have purchased the suit holding in a Court's auction sale exclusively and thereafter inducted the defendant-tenant therein. Defendant claimed his half share in the suit holding and his possession as co-sharer.
3. The suit was decreed in part holding that the plaintiff was the absolute owner of Suit Holding No. 110 and defendant being his younger brother was living therein not as a tenant but as a licencee with his consent, which stood terminated by notice (Exhibit 2) sent by the plaintiff asking him to vacate and thereafter defendant was to be treated as trespasser. Trial Court also observed that since the question of title and ownership has already been held in favour of plaintiff in the present suit, he should not be driven to file another suit for the purpose of eviction in the interest of equitable-Justice. It was further observed that relief for declaration of title was not prayed in the suit, but as the plaintiff was held to be absolute owner of the suit holding, it was just and proper to pass a decree of eviction in his favour to meet larger ends of justice.
4. Trial Court did not go into the question whether suit holding was required for bona fide occupation of plaintiff for accommodation of his sons, after it was found that plaintiff was absolute owner of the suit holding and had determined defendant's licence.
5. On defendant's appeal. First appellate Court set aside trial Court's judgment and decree and dismissed the suit holding that defendant was not a monthly tenant under the plaintiff in the suit holding and there was no question of payment of arrears of rent and electrical charges as claimed in suit. Plaintiff had not come in the suit with clean hands so as to enable him to equitable relief as per Order VII, Rule 7 of the Code of Civil Procedure and without putting proper valuation of the suit holding on existing market value and without paying ad valorem Court fee thereon, no such equitable relief can be allowed to him.
6. At the time of admission of present appeal on 5.2.1993, following substantial questions of law were framed :
"(i) Whether the learned lower appellate Court has committed a gross error of law in reversing the judgment and decree of the learned trial Court without even touching much less considering the oral and documentary evidences led on behalf of the plaintiff which had been considered by the learned trial Court from paragraphs (12) to (16) of its judgment wherein, the learned trial Court has considered the evidence led on behalf of the parties and has held that the suit properties belong exclusively to the plaintiff and that the same had been allotted by TISCO to the plaintiff and the defendant had no interest therein ?
(ii) Whether the learned lower appellate Court has gravely erred in law in reversing the judgment and decree of the trial Court without meeting the reasonings of the learned trial Court in support, of its judgment and decree ?
(iii) Whether the learned lower appellate Court has further gravely erred in not at all considering much less discussing the question of the plaintiff/appellant's general title in the suit properties and in not upholding the judgment and decree of the trial Court which had granted the relief of ejectment against the defendant/appellant/respondent on the basis of plaintiff/appellants general title to the suit properties under the provisions of Order VII Rule 7, CPC, notwithstanding the plaintiff/appellant's failure to prove the existence of relationship of landlord and tenant for it is well settled that in all such cases relief on the basis of general title should as a rule be allowed if the defendant has no semblence of title in the suit premises, particularly when question of title was fairly investigated and determined by the trial Court in view of a series of Judicial pronouncement of this Hon'ble Court to that effect commencing from AIR 1951, judgment repeated and reiterated in subsequent decisions reported in 1963 BLJR. ?
(iv) Whether the learned lower appellate Court has also gravely erred in declining to grant equitable relief on the basis of plaintiff/appellant's general title to the suit premises under the Provisions of Order VII, Rule 7. CPC particularly when arguments on that line were urged before the learned Court below and the plaintiff/appellant was and is still prepared even to pay the ad valorem Court Fee on the value of the subject matter of the suit as at the date of institution of the suit?"
In the said order dated 5.2.1993 this Court also observed that "as the appellant was entitled to a decree by virtue of the finding of the trial Court that, he had title over the property although the relationship of landlord and tenant could not be established, the plaintiff would have to pay ad valorem Coutt Fee which must be done before hearing of this appeal."
Further, by order dated 8.9.1993 this Court directed the Munsif, Jamshedpur, to decide the value of the suit property after notice to both the parties and taking such evidence, if necessary.
7. On 13.9.1994, this Court passed the following orders :
"After hearing the counsel for the parties and considering the facts of the case, the value of the suit properties is determined at Rs. 20,000/- subject to final determination and the appellant shall pay Court Fee on that valuation, on the plaint and memo of appeal. The appellant shall also make necessary correction in the plaint as well as memo of appeal."
Accordingly, plaintiff-appellant amended the suit and appeal valuation, from Rs. 2760 to Rs. 20,000/- and paid deficit Court Fee of Rs. 3522/- thereon.
8. The present appeal was heard by this Court and was allowed on 30.5.2001. Judgment and decree of the First Appellate Court was set aside and that of the trial Court was confirmed.
9. Defendant thereafter preferred Civil Appeal No. 8237 of 2001 in the Supreme Court of India, which was allowed on 3.12.2001 and Judgment dated 30.5.2001 of this Court was set aside and the present appeal was directed to be heard and disposed of on merits.
10. In view of the fact that at the time of admission of the appeal the aforesaid substantial questions of law were already framed and the plaintiff-appellant had already paid ad valorem Court Fee on the market value of the suit holding, approved the trial Court's finding of equitable relief of eviction having been granted to the plaintiff on establishment of his exclusive title over the suit holding. It is true that neither the plaintiff had sought for declaration of his title over the suit holding nor made such amendment in the plaint and the suit proceeded and was decided as pure suit for eviction under the Act. No doubt, trial Court on defendant's claim of title over the suit holding had also gone into the question of title in the present suit incidently and recorded findings in favour of the plaintiff and on that basis granted equitable relief under Order VII, Rule 7 of the Code of Civil Procedure to him.
11. In a recent decision, the Apex Court in Rajendra Tiwary v. Basudeo Prasad, 2001 (2) JLJR 890 : 2002 (1) JCR 1 (SC), has held that where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief, Order VII, Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted, where the Courts which tried the suits were ordinary Civil Courts having jurisdiction to grant alternative relief and pass decree under Order VII, Rule 7. A Court of Rent Controller having limited jurisdiction to try suits on grounds specified in the special Act obviously does not have jurisdiction of the ordinary civil Court and therefore cannot pass a decree for eviction of the defendant on a ground other than the one specified in the Act. If, however, the alternative relief is permissible within the ambit of the Act, the position would be different. In such a case, the provisions of Order VII, Rule 7 are not attracted.
12. In the present case, the very foundation of the suit was that plaintiff is the landlord and defendant is the tenant, which was concurrently found to be not established by the two Courts below. In any event enquiry into title of the plaintiff was beyond the scope of the Court exercising jurisdiction under the Act. That being the position on the ratio of the decision in Rajendra Tiwary (supra), the relief under Order VII, Rule 7 of the Code of Civil Procedure could not have been granted to the plaintiff. However, it is made clear that the plaintiff is not precluded from filing a suit for declaration of title and recovery of possession of the suit Holding No. 110 against the defendant.
13. In the result, this Appeal is dismissed, with the above observations. There shall be no order as to costs. Lower Court records may be sent down.