Patna High Court
Sundari Devi And Anr. vs Dilip Kumar Singh on 26 April, 2006
Equivalent citations: [2007(1)JCR313(PAT)]
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
JUDGMENT Navaniti Prasad Singh, J.
Page 845
1. These three civil revision applications arise out of an eviction proceedings instituted by the plaintiffs Smt Sundari Devi and her husband Sheo Dhyan Singh for eviction of the defendant Dilip Kumar Singh who happens to be one of their son for evicting him from their residential house being Eviction Suit No 18 of 1999 as before Additional Munsif III, Patna.
2. In civil revision No 340 of 2005, the plaintiffs have challenged the order dated 25.02.2005 passed in the said suit wherein while deciding the preliminary issue on the basis of pleadings, the trial Court held defendant to be a coparcener of the joint family and, as such, he held that the question of title is essential to be decided. Hence, the plaintiffs were directed to take appropriate steps in the matter. In the second civil revision application that is C R No 1183 of 2005, the plaintiffs' challenge is to the order dated 21.05.2O05 passed in the sane suit whereby in view of non-compliance of the direction given in the order dated 25.02.2005, the plaint was rejected and the third civil revision application being C R No 1557 of 2005 is also by the plaintiffs challenging the order dated 31.05.2005 by which consequent to the plaint being rejected, the arrears of rent and the rent deposited in Court by defendant was ordered to be released to the defendant.
3. Heard Shri A B Ojha, learned Counsel for the plaintiffs-petitioners and Shri Devendra Kumar Sinha, learned Senior Counsel appearing on behalf of the defendant-opposite party.
Page 846
4. From the detailed and lengthy arguments before this Court, it appears that the main controversy is whether in an eviction proceedings instituted with reference to the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as "BBC Act"), can the question of title be gone into and if so to what extent white determining, the question of landlord and tenant relationship. Secondly, what would be the effect and consequence of such a determination. An incidental question also arises whether rejection of plaint would amount to a decree as contemplated under the Code of Civil Procedure (hereinafter referred to as "CPC") and, as such is impugnable only by preferring an appeal and not in a proceeding for revision under Section 115 of CPC.
5. The facts relating to the present litigation necessary for resolving the controversy in issue are that the plaintiffs being wife and husband allege that the land was purchased in the year, 1957 in the name of plaintiff No 1, the wife/mother alongwith an uncle, brother of plaintiff No 2. The plaintiffs then built a house thereon in which they were residing. The plaintiffs have seven sons and two daughters. One of them is being sought to be evicted on ground of default in payment of rent. It is alleged that the defendant is employed in the Office of the Controller of Defence (Accounts) at Patna. He had built his own house at Rajiv Nagar at Patna and was residing there. His wife was detected to be suffering from breast cancer. Their house being at some distance from the hospital and the house of the parents being near, they requested to be permitted to stay in the house for the treatment of the daughter-in-law on payment of rent for a fixed period. For that purpose, the parents made place in the house by shifting out of rooms into the verandah and let them occupy the part of the premises. On expiry of the period, not only did the defendant-son refused to vacate, he refused to pay any rent. Hence, the suit for eviction.
6. In the written statement, the defendant alleged that the land having been purchased in the Farzi name of the wife of plaintiff No 2 and mother of defendant alongwith uncle of defendant showed that it was a joint family property. It was purchased out of various agricultural incomes of the joint family. Defendant had contributed substantial amount towards construction of the house and had been living there since his childhood with his family. As Such, it was submitted that there was no relationship of landlord and tenant. The story of being permitted to use the accommodation on payment of rent was totally denied.
7. The proceedings having been instituted, an application was filed by the plaintiffs as contemplated under Section 15 of the paid Act for deposit arrears of rent and rent during the pendency of the suit. The trial Court on basis of materials available on record and the pleadings as between the parties came to a prima facie conclusion that the relationship of landlord and tenant stands as between the plaintiffs and defendants and, as such, directed payment of arrears of rent and deposit of rent month to month by order dated 28.09.2001. The defendant challenged the said order before this Court by filing civil revision No 1897 of 2001. This Court, by judgment and order dated 01.08.2002, noticing that the trial Court had found prima facie relationship of landlord and tenant, the order could not be said to be suffering from any jurisdictional error and, as such, the order impugned was not interferred with.
8. That, thereafter, the defendant sought to amend his written statement by , giving genealogy of family apparently to show and establish his assertion that it was a Page 847 joint family property. This was objected to by the plaintiffs and the same was upheld by the trial Court by its order dated 25.07.2003 and the amendment was not allowed. The defendant-son preferred another civil revision application before this Court being civil revision No 1323 of 2003 which was disposed of by order dated 13.05.2004 wherein the defendant was permitted to amend his pleading. While doing so, this Court observed that in such proceedings, question of title is invariably arises and the same has to be considered by the trial Court if there is denial of relationship of landlord and tenant. This question could not be said to be irrelevant. Consequent to the aforesaid order, the written statement was amended then the defendant prayed that the issue whether there is landlord and tenant relationship be decided as a preliminary issue on the basis of the pleadings. The Court apparently accepted and proceeded on basis of the pleadings as abovementioned. The trial Court, by the impugned order dated 25.02.2005 held that the defendant was a coparcener apparently meaning thereby that the property was a joint family property and, as such, the question of title had to be decided and, accordingly, directed the plaintiffs "to take appropriate step".
9. Shri Ojha, learned Counsel appearing for the plaintiffs-petitioners submitted that on basis of the plaint and the written statement, the Court had not competently arrived at the conclusion that it was joint family property or for that matter, defendant, was a coparcener. The finding was perverse inasmuch as it could not be sustained with reference to material on record. various decisions were cited by both the sides as to the jurisdiction and propriety of the trial Court to arrive ft such a finding at this juncture. Shri Ojha's contention was that such a finding could only be arrived after a full-fledqed trial especially when earlier the trial Court had prima facie found the relationship of landlord and tenant, established while passing order under Section 15 of the Act which was affirmed by this Court in the first civil revision. The contention of Mr. Sinha, the learned Senior Counsel appearing for the defendant-opposite party was inter alia, that whetever may be the situation the Court having come to a finding that the question of landlord and tenant and consequently the title being substantially in issue and the Court having decided the same, the plaintiffs not having taken steps to, convert the suit into a full-fledged title suit, the plaint was rightly rejected and, as such, the first impugned order merged into the order rejecting the plaint, the second impugned order, which was an appealable order and could not be interferred now in civil revision.
10. In the case of Sheo Shankar Prasad and Ors. v. Barhan Mistry and Ors. 1985 PLJR 358, L M Sharma, J. as he then was, held that in such matters where the Court, after hearing at length and recording evidence in detail having determined the relationship of landlord and tenant going into the question of title, the plaint ought to have been amended into a title suit on payment of proper Court fee and valuation and, as such, set aside the decree and remitted the matter to trial Court. This decision was noticed and specifically overruled by the Apex Court in the case of Ram Narain Prasad and Anr. v. Atul Chander Mitra and Ors. (1994) 4 SCC 349 where the Apex Court held that the question of suit valuation or Court fee has to be decided on basis of the plaint and not on the basis of averments made in the written statement or the defence set up in the written statement. This Court again was confronted with a similar question in the case of Basant Kumar Agarwalla v. Ajit Kumar Sinha 1997(2) PLJR 87 when this Court held that for the purposes of seeking eviction under the Page 848 Act, the question of title does incidentally arise but that does not mean that the question of valuation and payment of ad valorem Court fee would then be determined on basis of pleading of the defendant in the written statement. His Lordship (M Y Ekbal, J) noticed the earlier decision in the case of Sheo Shankar Prasad and Ors. (supra) had been overruled by the Apex Court in the case of Ram Narain Prasad and Anr. (supra) . It also held that if the plaintiff fails to prove relationship of landlord and tenant and prays for a decree of eviction on the basis of title, the Court may give him that relief in that suit itself in view of Order 7 Rule 7, CPC if the parties have led evidence on the question of title and the plaintiff has not forefeited his right to seek relief on equitable grounds. Similar view has been taken by this Court again in the case of Krishna Nandan Jha v. Basudeo Prasad Maskara and Anr. 2001 (3) PLJR 444 wherein once again the aforesaid decisions were noticed. Also noticed was the Apex Court's decision in the case of Shamim Akhtar v. Iqbal Ahmad and Anr. AIR 2001 Supreme Court 1 wherein in paragraph-12, the Apex Court has inter alia held that in such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff, it was absolutely necessary for the Small Cause Court to determine finally the title to the property. The tenant-respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid eviction proceedings under the Rent Control Act. It also held that the question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent Court.
11. An examination of the above decisions would brings out one thing very clearly is that the finding in relation to the landlord and tenant relationship and incidentally the title of the parties a full-fledged hearing, trial of the suit is necessary. This does not mean that the suit should always be converted into a ful1-fleaged Title Suit.
12. Shri Ojha is correct in submitting that an issue involving mixed questions of law and fact cannot be decided as a preliminary issue. The matter must go to a full-fledged trial. In view of this short submission, I am satisfied that the trial Court erred in exercising the jurisdiction to decide this issue as a preliminary issue on basis of the averments alone and the impugned order dated 25.02.2005 is liable to be and is set aside accordingly.
13. There is yet another consideration for the same. The only material which the trial Court seems to have relied is that the land was purchased in the joint name of plaintiff No 1 and her brother-in-law (brother of plaintiff No 2) which showed that it was joint family property. I am afraid no such inference in fact or in law can be drawn from this one fact alone. A reference to the sale deed by which the land was purchased would show that the share of plaintiff No 1 was thirteen annas and four paises which is about 83.13% and the share of her brother-in-law was two annas and eight paises which is 16.23%. Prima facie such unequal shares would not in fact show a purchase of asset as a joint family asset, that is presuming that plaintiff No 1 was merely a name lender for plaintiff No 2, the purchase being ostensibly by two brothers. It was not the case of defendant that the property in question had devolved on plaintiffs by inheritance. I do not find any warrant for the conclusion that the defendant was a coparcener and the property was joint family property. This is so far as the pleadings and the material that is available at this juncture of the suit. This finding of this Court is not to be taken as final and conclusive because it is to be Page 849 ultimately determined after a full-fledged hearing and on basis of evidence brought on record.
14. Further, as noticed earlier, in the Section 15 proceedings, the trial Court itself had come to a prima facie finding that the landlord and tenant relations lip existed. The said decision, inter party, was not disturbed by this Court in earlier civil revision application against the said order.
15. I may also mention hat as has been noticed in several other decisions of this Court that if such a plea is permitted to be taken by tenants then all eviction suits under BBC Act would stand stultified for every tenant would deny the title of landlord and force the proceedings to be converted into a full-fledged title suit to be tried dehorse the provisions of the BBC Act, thus, defeating the very purpose for which the said Act had provided special procedures.
16. In view of my finding above, the order impugned in the second civil revision application does not survive and, as such, I am not required to decide whether the revision application is maintainable or not because the plaint consequently could not have been rejected.
17. Here, I may mention that in the first impugned order, the trial Court having come to the conclusion prima facie that the defendant was a coparcener of the joint family, the trial Court directed the "plaintiff to take appropriate steps in the light of observations of this Court and the finding of the trial Court". That, to say the least, is absolutely vague and uncertain direction. The plaintiffs have to keep guessing as to what appropriate steps the trial Court had, in mind. The trial Court was required to give specific and unambiguous order/directions.
18. The consequence of the first civil revision application being allowed, the second and the third revision applications are also to be allowed.
19. This Court has been informed at the bar that pursuant to the order as made in the third revision application being withdrawal of money as ordered to be deposited by the defendant earlier in the proceedings, the defendant has already withdrawn the amount. Needless to say as the order has been set aside, the defendant would be bound by order passed under Section 15, CPC proceedings till the conclusion of proceedings the amount withdrawn would be liable to be redeposited forthwith.
20. Accordingly, the three revision applications are allowed and the orders impugned are quashed. The trial Court is directed to proceed with the suit expeditiously as it is a case of the year 1999.