Patna High Court
Krishna Nanadan Jha vs Basudeo Prasad Maskara And Anr. on 26 June, 2001
Equivalent citations: 2001(2)BLJR1518
Author: Sudhir Kumar Katriar
Bench: Sudhir Kumar Katriar
JUDGMENT Sudhir Kumar Katriar, J.
1. The appellant is the defendant against a judgment of reversal. This appeal is directed against the judgment dated 23-9-2000, passed by the learned Ist Addl. District judge, East Champaran, Motihari, in Eviction Appeal No. 6 of 1995 (Basudeo Prasad Maskara v. Krishna Nandan Jha and Anr.), whereby the same was allowed, the defendant's eviction from the suit premises ordered for, after setting aside the judgment dated 5-7-1995, passed by the learned Munsif, Motihari, in Eviction Suit No. 2/7 of 1994 (Basudeo Prasad Maskara v. Krishna Nandan Jha and Anr.).
2. The plaintiff (respondent 1st set herein) instituted the suit for eviction of the defendants (the appellant and respondent 2nd set herein) for their eviction from the suit premises. The plaintiffs case as set out in the plaint is that Brijnandan Jha, father of the defendants, had been inducted as a tenant in the suit premises had vacated the same on 19-10-1991, and died soon thereafter on 11-1-1992. The defendants, who are full brothers and sons of the said Brijnandan Jha, were inducted as tenants who entered the suit premises on 1-2-1992 as per an oral agreement and on monthly rental of Rs. 250/-. According to the further case of the plaintiff, the defendants paid rent up to July 1992, stopped paying rent from August, 1992, and did not pay till the date of institution of the suit. The plaintiff, therefore, instituted the suit for eviction of the defendants on the ground of default in payment of rent as well as on the ground of personal necessity, namely, Ajay Kumar Maskara, the plaintiff's son, was married and was without engagement and a separate business had to be set up for him.
3. The defendants filed separate written statements, Defendant No. 1 (Krishnanandan Jha, and the appellant herein) filed written statement and set up title adverse to the plaintiff and, therefore, there was no occasion to pay rent. His further case on the question of personal necessity, as stated in (sic) contained in Paragraph 3 is personal affair of the plaintiff and has been written in a distorted way."
4. Defendant No. 2 (Raj Kumar Jha, and respondent 2nd set herein) filed a separate written statement and stated in Paragraph 3 therein that it is correct to say that there was oral tenancy between the plaintiff and Brijnanadan Jha, who had vacated the suit premises on 19-10-1991, and had died soon thereafter on 11-1-1992. His further case is that the defendants had occupied the suit premises on rent on 1-9-1992 on the basis of an oral tenancy, and the rent had been paid upto December, 1993.
5. The plaintiff and defendant No. 1 led evidence in support of their respective cases. Defendant No. 2 did not lead evidence in support of his case. The trial Court held at one place that "in the light of the above discussions and findings I find that the plaintiff has proved the tenancey between the parties and this issue is decided accordingly..." At another place he concluded that"... I find that the plaintiff has failed to prove need itself. Even the plaintiff has failed to establish the relationship of landlord and tenant between the parties. This issue is, therefore, decided accordingly..." The suit was dismissed.
6. The plaintiff appealed. The learned Court of appeal below has held that the plaintiff has been able to prove prima facie his title over the suit land. He has also held there is relationship of landlord and tenant between the parties. He has further held that there was default on the part of the defendants in payment of rent. He has also upheld the plaintiff's case of personal necessity.
7. Defendant No. 1 has preferred the present appeal. The plaintiff has been arrayed as respondent No. 1 herein, and defendant No. 2 has been impleaded as respondent No. 2 herein.
8. While assailing the validity of the impugned judgment, Mr. Yogendra Mishra, learned Counsel for the appellant, submitted that he has challenged the plaintiff's title and has set up title adverse to the plaintiff. It was, therefore, incumbent on the Courts below to try the suit as Eviction-cum-Title suit, and the plaintiff should have been called upon to pay ad valorem Court-fee. The matter should, therefore, be remitted back to the trial Court. He has relied on the judgment of a learned Single Judge of this Court reported in 1985 PLJR 358 (Sheo Shankar Prasad v. Barhan Mistry) as well as the judgment of a Division Bench of this Court reported in 1985 BBCJ 696 (Raghubar Dayal v. Ramekbal Sah).On the other hand, Mr. Rajendra Narain, learned Counsel for respondent No. 1 (the plaintiff) has submitted that the judgment in Sheo Shankar Prasad v. Barhan Mistry (supra) has been overruled by the Supreme Court in its judgment (Ram Narain Prasad V..Atul Chander Mitra).
9. Learned Counsel for respondent No. 1 is right in his submission that the Court-fee has to be computed on the basis of averments made and relief sought in the plaint in terms of Section 7 (xi) of the Court Fee Act, 1870, and not on the basis of the written statement. The averments made and the relief (s) sought in the plaint determine the character of the suit for the purpose of Court fee payable thereon. The case set up in the written statement is not material in this regard. Learned Counsle for respondent No. 1 has therefore, rightly relied on the judgment of the Supreme Court in Ram Narain Prasad v. Atul Chander Mitra (supra) which has laid down to the aforesaid effect, and the judgment of this Court in Sheo Shankar Prasad v. Barhan Mistry (supra) has been overruled. Learned Counsel for the appellant should have taken care not to rely on an over-ruled judgment. In so far as the judgment in Ram Dayal v. Ramekbal Sah (supra) is concerned, the same stood on a different footing and decided an altogether different issue. It has been held therein that the relief of recovery of possession can in appropriate cases be granted, even though the plea was not specifically made but was covered by the issues and the parties had entered the trial and led evidence, provided ad valorem Court-fee is paid thereon. This judgment is, therefore, wholly inapplicable to the facts and circumstances of the present case. I, therefore, conclude that the Courts below have rightly valued the suit on the basis of the the averments made, and the reliefs prayed for, in the plaint. The contention advanced on behalf of the appellant is accordingly rejected.
10. Learned Counsel for the appellant next submitted that in view of the case of defendant No. 1, the learned Court of appeal below ought to have gone into the question of title in full-fledged manner, though the trial Court had done it. I am unable to accede to this contention. I find from the impugned judgment that in view of nature of the suit and the pleadings of the parties, learned Court of appeal below did go into the question of title incidentally and has negatived the contention of defendant No. 1. He has discussed this issue in paragraphs 47 to 50 of the impugned judgment and has held that the plaintiff has prima facie title of the suit property. Learned Counsel for respondent No. 1 has, therefore, rightly relied on the judgment of the Supreme Court reported in 2000 (8) SCC 123 (Shamim Akhtarv, Iqbal Ahmad), wherein it has been held that the tenant cannot avoid eviction proceedings merely by denying the relationship of landlord and tenant between himself and the landlord. In an eviction suit, merely because of the defendant's denial of landlord-tenant relationship, the trial Court is not required to decide the question of title in a full-fledged manner on payment of ad valorem Court-fee. The question of title can be considered by the Court as an incidental question.
11. Learned Counsel for the appellant next submitted that in a case of reversal of judgment of the trial Court, the first appellate Court should consider all the reasonings of the trial Court and assign reasons for rejecting them. He further contended that the trial Court has considered the case of defendant No. 1 as to title but has not been properly considered in the impugned judgment. The contention is stated only to be rejected. The entire issues of fact and law were at large before the learned Court of appeal below, being the last Court of facts. Law is well settled that he is obliged to apply hisown mind to the cases of the parties and the evidence on record and come to independent findings, unmindful of the findings recorded by the trial Court. He is bound in law to discuss the entire evidence on record and assign reasons in support of his own conclusions. He is not obliged to assign reasons for rejecting the reasonings or conclusions of the trial Court. Furthermore, in so far as the question of title is concerned, I am satisfied on the basis of the perusal of the impugned judgment, particularly Paragraphs 47 to 50, that the question of title as set up by defendant No. 1 is concerned, has adequately been gone into by the lower appellate Court. The contention is, therefore, rejected. Furthermore, the case of defendant No. 1 with respect to his title adverse to the plaintiff having been rejected and further finding of fact that there is relationship of landlord and tenant between the parties, non-payment of rent by defendant No. 1 in specific terms stands admitted.
12. Learned Counsel for the plaintiff (Respondent No. 1) is right in his submission that the issues are concluded by findings of facts. The learned Court of appeal below, being the last Court of facts, has found that the plaintiff has title of the suit property. He has been able to prove the relationship of landlord and tenant between the parties. It has also been found that the defendants have defaulted in payment of rent. The plaintiffs case of personal necessity has also been upheld. I am of the view that the learned Court of appeal below has in his wel|-considered judgment discussed all the issues satisfactorily.
13. In the result, I find that there is no merit in this appeal. It does not raise any substantial question of law which needs to be adjudicated by this Court. The issues are concluded by findings of facts. This appeal is accordingly dismissed with costs.