Dr. Yogesh Verma vs Shiv Kumar Agarwal And Anr on 28 June, 2017

[Cites 28, Cited by 1]

Sikkim High Court

Dr. Yogesh Verma vs Shiv Kumar Agarwal And Anr on 28 June, 2017

Equivalent citations: AIR 2018 (NOC) 278 (SIK.)

1. Aggrieved and dissatisfied with the Judgment and Decree, both dated 28-06-2016, passed by the Learned District Judge, East Sikkim, at Gangtok, in Eviction Suit No.01 of 2014, dismissing the suit of the Plaintiff, the instant Appeal has been preferred. A Cross Objection was also filed by the Defendants assailing the finding of the Learned Trial Court in Issue no.1. RFA No.13 of 2016 and CO No.03 of 2016 3 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

2. The Regular First Appeal and the Cross Objection are being taken up together and disposed of by way of this common Judgment as they arise out of the same impugned Judgment.

3. The Appellant was the Plaintiff before the Learned Trial Court, while the Respondents were the Defendants therein. They shall be referred to in terms of their appearance in the Learned Trial Court.

4. The Plaintiff had filed a Suit for Eviction and other reliefs under Sections 4, 5 and 12 of the Gangtok Rent Control and Eviction Act I of 1956 (hereinafter referred to as the "Act of 1956"), which are extracted hereinbelow for convenience;

"GANGTOK RENT CONTROL AND EVICTION ACT I OF 1956 (Received assent of His Highness the Maharaja of Sikkim on 3Ist May 1956) Preamble. Whereas it is deemed expedient and necessary to control rent and eviction of accommodation in Gangtok Bazar premises ; it is hereby enacted as follows :-

..........................................................................................................

1. .................................................................................

2. .................................................................................

3. .................................................................................

4. A Landlord may not ordinarily eject any tenant. When, however, the whole or part of the premises are required for the bonafide occupation of the landlord or his dependents or for thorough overhauling (excluding additions and alterations) or when the rent in arrears amount to four months rent or more, the landlord may evict the tenant on filing a suit of ejectment in the Court of the Chief Magistrate. The tenant so evicted shall, however, have the first right to re-occupy the premises, after over-hauling, on such enhanced rent as may be fixed by the Sikkim Darbar before it is let out to any other tenant.

5. No tenant shall sub-let the premises, either in whole or in part, to a third party without the consent of the Landlord.

RFA No.13 of 2016 and CO No.03 of 2016 4

Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

6. .................................................................................

7. .................................................................................

8. .................................................................................

9. .................................................................................

10. .................................................................................

11. .................................................................................

12. No tenant shall make any additions or alterations to the building, or damage the structure in any way, save in the course of ordinary wear and tear, without the approval in writing of the landlord, failing which the landlord shall have the right to evict such tenant.

13. .............................................................................."

5. The Plaintiff‟s case briefly narrated is that, he is the owner of one flat measuring 15' x 20', presently in the occupation of the Defendants, on the 4th floor of "Verma Building", situated on the National Highway, Gangtok. The property earlier belonged to his sister, Mrs. Karuna Khanna (nee Verma, hereinafter referred to as "P.W.2"), for which rent was tendered by the Defendant No.1 in her name. On 01-05-2013, the suit property came to be mutated in the Plaintiff‟s name vide Exhibit 8, i.e., letter of the Sub-Registrar, informing him of mutation of the property in his name. Consequently, P.W.2 sent a letter, Exhibit „A‟, by registered post on 21-05-2013 to the Defendant No.1, duly received by him on 22-05- 2013, requesting him to attorn as a tenant under the Plaintiff, for the suit premises. No heed being paid, a legal Notice was issued on 25-05-2013, by the Plaintiff to the Defendant No.1, requiring the Defendants to hand over vacant possession to the Plaintiff. The Defendant No.1 while responding to the legal Notice on 09-09-2013, denied any relationship of landlord and tenant between him and the Plaintiff, asserting that P.W.2 was the owner thereof and he had not RFA No.13 of 2016 and CO No.03 of 2016 5 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma been informed of the change of such ownership. The Plaintiff accordingly sought for eviction of the Defendant No.1 on the following four grounds, viz.; that he required the premises for his bona fide use and occupation having retired from Government service, although he is reemployed elsewhere and has taken up residence at the hospital quarters. That, the Defendant No.1 has defaulted in payment of rent from May 2013, besides sub-letting the premises to Defendant No.2, and carrying out unauthorised alterations and additions in the suit premises.

6. The Defendant No.1 for his part averred that he was inducted as a tenant of Late Tek Chand Verma, the Plaintiff‟s father, in 1981. On his death in March 2005, P.W.2 had received the suit property in her share and the rent thereof was being collected by Rakesh Verma, her brother, on her behalf. Although he admitted receipt of Exhibit „A‟, however, he denied awareness of the transfer of ownership of the suit property in the name of the Plaintiff and that, except the legal Notice dated 25-05-2013, which also was sent sans any Registered Deed, neither Exhibit 8, nor Exhibit „A‟, mentioned such transfer, hence, he continued tendering rent to P.W.2, through Rakesh Verma. While denying the landlord-tenant relationship between him and the Plaintiff, claimed that the additions and alterations were carried out with the due permission of Tek Chand Verma and he had not sub-let the premises, but was in joint occupation with the Defendant No.2, his younger brother and other family members. Hence, the Suit be dismissed. RFA No.13 of 2016 and CO No.03 of 2016 6 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

7. On the basis of the pleadings of the parties, the Learned Trial Court framed the following issues;

(i) Whether the Plaintiff is the absolute owner of the suit premises and whether a Landlord-Tenant relationship exists between them? (Onus on the Plaintiff)

(ii) Whether the Defendant No.1 has defaulted in the payment of monthly rent in respect of the suit premises since the month of May 2013? (Onus on the Plaintiff)

(iii) Whether the Defendant No.1 has made additions and alternations to the suit premises and has sublet the same suit premises to the Defendant No.2? (Onus on the Plaintiff)

(iv) Whether the Plaintiff requires the suit premises for his bona fide occupation? (Onus on the Plaintiff)

(v) Whether the Plaintiff is entitled to the reliefs claimed?

8. The Learned Trial Court while deciding Issue No.1 reached the following findings;

"34. The mutation order dated 01.05.2013 (Exhibit-

8) produced by the plaintiff for the first time on 18.08.2015 shows the plaintiff to be the owner of the suit premise (sic). Hence, at the moment it is undeniable that the plaintiff is the owner of the suit premise (sic). The first part of issue No.1, whether the plaintiff is the absolute owner of the suit premise (sic) has to be answered in affirmative (sic). However, I hasten to mention that before the institution of the suit, defendant No.1 was unsure of the same.

35. ................ The second part of issue No.1, whether landlord-tenant relationship exists between them, is answered in affirmative. ......................" The remaining Issues being Issue No.2 to Issue No.5 were decided in favour of the Defendants and the Suit of the Plaintiff dismissed.

RFA No.13 of 2016 and CO No.03 of 2016 7

Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

9. Before this Court, the arguments advanced by Learned Counsel for the Plaintiff were that, during his employment in Government service, he resided in Government accommodation deducting rent from his salary. Although after his retirement, he is reemployed in another Hospital, but is in occupation of hospital accommodation, towards which house rent is deducted from his salary, besides he is not assured of permanent accommodation, hence, the bona fide requirement of the suit premises. Secondly, the Defendant No.1 has defaulted in payment of house rent from May 2013, apart from altering the suit premises without the Plaintiff‟s written permission, which therefore, are sufficient grounds, as per Law, to evict him. The ground of sub-letting was not pressed before this Court. It was next contended that no infirmity obtains in the decision of the Learned Trial Court in Issue No.1, which found him to be the owner of the suit premises in view of Exhibit 8, hence the provisions of Section 109 of the Transfer of Property Act, 1882 (for short "T.P.A.") falls into place. To fortify his submissions, attention of this Court was invited to the provisions of Sections 8, 106 and 109 of the T.P.A. and the decisions in―

(i) Phiroze Bamanji Desai vs. Chandrakant M. Patel and Others1;

(ii) M/s. Hajee K. Assainar & Co. vs. Chacko Joseph2;

(iii) Vasantkumar Radhakisan Vora (Dead) by his Lrs. vs. Board of Trustees of the Port of Bombay and Another 3;

(iv) Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta4;

(v) Revankumar R. Gaikwad vs. Bachchubhai P. Jethwa5;

                            (vi)      Keshar Bai vs. Chhunulal6.

           1.   AIR 1974 SC 1059             2.   AIR 1984 Kerala 113
           3.   (1991) 1 SCC 761             4.   (1999) 6 SCC 222,
           5.   AIR 2007 Bombay 132          6.   (2014) 11 SCC 438
                                    RFA No.13 of 2016 and CO No.03 of 2016                              8

Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

10. Resisting the stand taken by the Plaintiff, it was canvassed by Learned Counsel for the Defendants that, Exhibit „C‟ a registered document, indicates that the property belongs to P.W.2, consequently Exhibit 8, relied on by the Plaintiff for ownership, mutation for which was directly from the name of Tek Chand Verma (his father), is an invalid document, in view of Exhibit „C‟. In this context, attention of this Court was drawn to the provisions of Sections 107, 122 and 123 of the T.P.A. which mandates that a registered instrument be executed between the parties, but no such instrument exists between them. That, no sale in terms of Section 54 of the T.P.A. has taken place between the Plaintiff and P.W.2. Reliance was also placed on Sections 22 and 101 of the Indian Evidence Act, 1872 (for short "Evidence Act"). It was urged that in the absence of compliance of any of the provisions supra, it is evident that a fraud has been committed by the Plaintiff with regard to Exhibit 8, hence, the Plaintiff is not the owner of the premises. That, the letter of attornment, Exhibit „A‟, being devoid of a date was not exhibited by the Plaintiff. The contents therein required the Defendant No.1 to attorn immediately, but the absence of a date therein resulted in vagueness, while Exhibit 8 was filed subsequently by the Plaintiff, without leave of the Court. It is also speculated that, had the Defendant No.1 paid rent to the Plaintiff on the basis of Exhibit „A‟, in all likelihood P.W.2 would have raised the plea, that, the rent had been erroneously paid since Exhibit „A‟ did not bear her signature, as her signature allegedly affixed on Exhibit „A‟ differs from that on Exhibit „C‟. The Acknowledgment Card purported to be that for Exhibit „A‟ does not reflect as to what RFA No.13 of 2016 and CO No.03 of 2016 9 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma document was delivered to the Defendant No.1. That, the evidence of P.W.2 does not reveal that she had transferred the property to the Plaintiff. She has merely deposed that the premises was mutated in the name of the Plaintiff since 01-05-2013 and hence, the Defendant No.1 was to attorn as the tenant of the Plaintiff.

11. That, the ground of bona fide requirement of the Plaintiff is only a ruse to evict them from the suit premises as the Plaintiff has always availed of Government accommodation and on retirement is living in quarters provided by the hospital, where he is employed. The crux of the Suit is the escalating commercial rates in the area, resulting in the collusive suit between the Plaintiff and P.W.2, to evict the Defendants. In order to buttress his submissions, reliance was placed on Rangammal vs. Kuppuswami and Another7. To establish that when the Plaintiff has not proved his title and the title relied on is invalid in law, succour was drawn from Bajranglal Shivchandrai Ruia vs. Shashikant N. Ruia and Others8. Reliance was also placed on Kailash vs. Nanhku and Others9. Support was also taken from Uppalapati Veera Venkata Satyanarayanaraju and Another vs. Josyula Hanumayamma and Another10, wherein a Single Judge although in agreement with three other Judges to dismiss the Appeal, by a separate Judgment, held that attornment is complete the moment the tenant agrees to acknowledge the new landlord to be his landlord. Thus, as in the instant case, he has not attorned to the Plaintiff, it is evident that he has not acknowledged the Plaintiff

7. (2011) 12 SCC 220

8. (2004) 5 SCC 272

9. (2005) 4 SCC 480

10. AIR 1967 SC 174 RFA No.13 of 2016 and CO No.03 of 2016 10 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma to be his landlord and the question of default does not arise nor can the other grounds for eviction come into play.

12. In Cross Objection, the grounds taken by the Defendant No.1 was that the Learned Trial Court had reached an erroneous finding that the Plaintiff was the owner of the suit premises as no registered instrument evidencing such transfer by P.W.2, to the Plaintiff existed. That, the suit property had fallen in her share, vide Exhibit „C‟, a Partition Deed, between the offspring of Tek Chand Verma, for which she had been collecting rent. That, Exhibit 8 was filed only with the amended Plaint instead of the first Plaint, although no leave of the Court was sought to file an additional document. Hence, Exhibit 8 could not be relied on as it was objected to at the trial stage, despite which the Learned Trial Court considered it, without deciding upon its admissibility. Even assuming that Exhibit 8 is admissible in evidence, it is clear that the property was mutated to the Plaintiff‟s name from that of Tek Chand Verma, who was not the owner as on 01-05-2013, P.W.2 being the owner thereof. Per contra, it was claimed by the Plaintiff that no error obtains in the said decision.

13. I have considered the rival contentions of both Learned Counsel at length and given due consideration to their submissions. I have also carefully considered the documents on record and the pleadings as well as the impugned judgment.

14. Thus, what requires consideration of this Court is ―

(i) Whether a jural relationship exists between the Plaintiff and the Defendant No.1 as landlord and tenant?

RFA No.13 of 2016 and CO No.03 of 2016 11

Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

(ii) Whether the Plaintiff is entitled to the reliefs sought, on grounds put forth by him?

15. Taking up the first question for consideration, it is no one‟s case that the Suit is for declaration of title, it is indeed a Suit for eviction, thus, the pivotal argument of Defendant No.1 concerning Exhibit 8 is taken up. Exhibit 8 reads as follows;

"GOVERNMENT OF SIKKIM EAST DISTRICT COLLECTORATE GANGTOK-SIKKIM Memo No. 5/DC/E/DCE Dated Gangtok 1/5/013 . To, Dr. Yogesh Verma S/o Lt. T.C Verma Gangtok.

Sub: Mutation Reference your application dated: Nil on the subject cited above, you are hereby informed that a property as shown in the schedule below has been mutated in your name from Lt. Tek Chand Verma .

SCHEDULE OF THE PROPERTY One of the two shop space on the Northern site of the ground floor (NH-31A Level) and the entire first floor and entire fourth floor being part of the seventh storied RCC building built on plot no.III, Block C,NH-31 A ,Gangtok.

Sd/- seal Sub-Registrar, Gangtok"

16. The letter thus postulates that the property, as identified in the letter, has been mutated in the name of the Plaintiff. It is not disputed that the property so described is the suit property. The moot point would be whether this document confers title to the Plaintiff. The consequences of a mutation have been discussed by this Court in Karma Doma Gyatso alias Babila Kazi vs. Mrs. Kesang Choden & Ors.11 which while referring to the case of Arjun Kumar Pradhan and Others vs. Ram Kumar Mazi12, held that mere

11. AIR 2009 Sikkim 6 12. Civil Revision 3 of 2005, decided on 28-09-2005 RFA No.13 of 2016 and CO No.03 of 2016 12 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma recording of name(s) in the record of rights, including khatiyan, does not confer any right or title to any land. Thus, mutation proceedings not being judicial proceedings, no question relating to proprietary rights in immovable rights are determined in such proceedings. In (Thakur) Nirman Singh and Others vs. Thakur Lal Rudra Pratap Narain Singh and Others13, it was held that, mutation proceedings are much more in the nature of fiscal inquiries, instituted in the interest of the State, for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property, may be put into occupation of it, with greater confidence that the revenue for it will be paid. Such proceedings are not evidence that the successful applicant was in possession as sole legal owner, in a proprietary sense, to the exclusion of all claims of the other members of the family as co- owners, or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim. In Smt. Sawarni vs. Smt. Inder Kaur and Others14, it was, inter alia, held that, mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. This was reiterated in Municipal Corporation, Gwalior vs. Puran Singh alias Puran Chand and Others15. Thus, what emerges from the gamut of decisions reflected hereinabove, is that, mutation does not confer title. The same would be apposite for the instant case.

13. AIR 1926 PC 100

14. AIR 1996 SC 2823

15. (2015) 5 SCC 725 RFA No.13 of 2016 and CO No.03 of 2016 13 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

17. What is relevant for the present purposes is that, despite the Defendant No.1 raising arguments on the non- compliance of Sections 54, 107, 122 and 123 of the T.P.A., P.W.2 has no quarrel with the signature appearing on Exhibit „A‟, given the fact that, she has identified Exhibit „A(a)‟ on Exhibit „A‟ as her signature and admitted that the suit property had been recorded in the name of the Plaintiff. If the Defendant No.1 was suspicious of the authenticity of Exhibit „A‟, all that he was required to do to clear the air on this issue, was to either approach the Plaintiff or P.W.2 or in her absence Rakesh Verma, who was collecting the rent on her behalf. P.W.2 has clearly admitted that the property belongs to the Plaintiff, merely because, electricity bills are still being issued in her name does not establish that the property is hers in the face of her denial. In this context, the provisions of Section 58 of the Evidence Act are thus applicable. In any event, the Defendant No.1 was also free to approach the appropriate Authorities to redress his grievances regarding forgery if he deemed it relevant or appropriate. In the light of the above facts, I see no reason as to why the Defendant No.1 should take up cudgels on behalf of P.W.2, who is not aggrieved by the entire situation, and neither is there any acrimony between her and the Plaintiff, with regard to the ownership of the suit property. In other words, on the admission of P.W.2, the suit property does indeed belong to the Plaintiff and it is not the place of the Defendant No.1 to question the Plaintiff‟s ownership.

RFA No.13 of 2016 and CO No.03 of 2016 14

Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

18. The Law on this aspect is well-settled, inasmuch as, in a Suit for eviction the title of the Appellant cannot be adjudicated upon. In Keshar Bai6, the Hon‟ble Supreme Court observed that;

"15. The High Court has expressed that the respondent was justified in asking the appellant to produce the documents. Implicit in this observation is the High Court's view that the respondent could have in an eviction suit got the title of the appellant finally adjudicated upon. There is a fallacy in this reasoning. In eviction proceedings the question of title to the properties in question may be incidentally gone into, but cannot be decided finally.

16. A similar question fell for consideration of this Court in Bhogadi Kannababu [(2006) 5 SCC 532]. In that case it was argued that the landlady was not entitled to inherit the properties in question and hence could not maintain the application for eviction on the ground of default and sub- letting under the A.P. Tenancy Act. This Court referred to its decision in Tej Bhan Madan v. Addl. District Judge [(1988) 3 SCC 137] in which it was held that a tenant was precluded from denying the title of the landlady on the general principle of estoppel between the landlord and the tenant and that this principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. Section 116 of the Evidence Act is clearly applicable to such a situation. This Court held that even if the landlady was not entitled to inherit the properties in question, she could still maintain the application for eviction and the finding of fact recorded by the courts below in favour of the landlady, was not liable to be disturbed. The position on law was stated by this Court as under: (Bhogadi Kannubabu case, SCC p. 538, para 19)

"19. In this connection, we may also point out that in an eviction petition filed on the ground of sub-letting and default, the court needs to decide whether relationship of landlord and tenant exists and not the question of title to the properties in question, which may be incidentally gone into, but cannot be decided finally in the eviction proceeding."

In the backdrop of this decision, it is elucidated here that the question of title is not relevant and reiterated that it is not the place of the Defendant No.1 to make enquiries about such.

19. Now, addressing the question of attornment, it is the contention of the Defendant No.1 that on account of the doubts of RFA No.13 of 2016 and CO No.03 of 2016 15 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma the authenticity of Exhibit „A‟ in view of Exhibit „C‟, he refused to attorn to the Plaintiff as his tenant. That, so long as, he does not accept the Plaintiff as his landlord, the attornment cannot be complete.

20. On this point, useful reference may be made to Section 109 of the T.P.A. which deals with the rights of the lessor‟s transferee. The underlying principle of the Section is that the rights attached to property which arise out of the possession and control of property will pass with the property. For convenience, the Section is reproduced hereinbelow;

"109. Rights of lessor's transferee.--If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased."

On a bare reading of the Section, it is clear that the Section does not insist that the transfer of the landlord‟s rights can take effect only if the tenant attorns. We may also beneficially refer to the decision in Vasantkumar Radhakisan Vora3 wherein it was, inter alia, held that --

RFA No.13 of 2016 and CO No.03 of 2016 16

Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma "13. It is no doubt true that per se Section 109 T. P. Act does not apply to the facts of this case. It contemplates transfer of lessor‟s right inter vivos. But when right, title and interest in immovable property stand transferred by operation of law, the spirit behind Section 109 perforce would apply and successor in interest would be entitled to the rights of the predecessor. This is what the learned Single Judge of the High Court in the impugned judgment has held and we approve of the view as correct. We accordingly, hold that the notice terminating the tenancy of Vasantkumar would enure to the benefit of the respondent and it could be availed of by the respondent to lay the suit for ejectment."

21. The decision clarifies that attornment by a tenant is not necessary, in which situation Exhibit „A‟ falls into place, the document being admitted, by P.W.2. It stands to reason that the Plaintiff is the owner of the suit property and consequently, it cannot be denied that a jural relationship of landlord and tenant exists between the Plaintiff and the Defendant.

22. The next question that arises now is with regard to the admissibility of Exhibit 8. This document was filed subsequently by the Plaintiff. Order VII Rule 14 of the Code of Civil Procedure, 1908 (for short "CPC") deals with production of document on which the Plaintiff sues or relies. The provision reads as follows;

"14. Production of document on which plaintiff sues or relies.--(1) Where a Plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such document in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) ......................................................................"

RFA No.13 of 2016 and CO No.03 of 2016 17

Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

23. The provision is self-explanatory and in view of the specific mandate therein, I am inclined to agree with the argument of Learned Counsel for the Defendants that while filing Exhibit 8, the provisions of Order VII Rule 14 of the CPC ought to have been complied with. No leave of the Court was sought to file the said document. The records of the Learned Trial Court reveal no reference to Exhibit 8, when the prayer for amendment under Order VI Rule 17 read with Section 151 of the CPC was put forth by the Plaintiff. It is also evident that the Defendant No.1 objected to Exhibit 8, when the Plaintiff was re-examined after filing of the amended Plaint, on the ground that the document was not filed along with the original Plaint, nor had the Plaintiff sought leave of the Court to exhibit the document subsequently. Besides, on walking through Order XIII Rule 3, of the CPC, it specifically lays down that the Court may at any stage of the Suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. Thus, the above provision of Law requires the Court to either allow or reject any document which may be found to be either irrelevant or inadmissible by a speaking order. In Smt. Lachungmu Lepcha and Another vs. Shri Gyatso Lepcha and Others16, this Court had issued directions for compliance of Order XIII Rule 3 of the CPC to the Subordinate Courts in Sikkim, which apparently have not been adhered to. The Learned Trial Court has failed to comply with the mandate of Law as provided in Order VII Rule 14 of the CPC or Order XIII Rule 3 of the CPC. In the said circumstances, it is evident that Exhibit 8 could not

16. RFA No.15 of 2013, decided on 12-08-2015 RFA No.13 of 2016 and CO No.03 of 2016 18 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma have been admitted in evidence and is, therefore, not eligible for consideration.

24. The question of admissibility of the Exhibit 8 having thus been settled, it is now required to be considered, Whether the Plaintiff is entitled to the reliefs claimed? The evidence of the Plaintiff reveals categorically that, he was a Government Doctor serving as Principal Chief Consultant and Medical Superintendent in the STNM Hospital, Gangtok and was residing at the STNM Hospital Doctors quarters, for which monthly rent of Rs.9,000/- (Rupees nine thousand) only, was being deducted from his salary. Thereafter, he retired from Government service and is now employed at the Central Referral Hospital, Tadong, but once again in occupation of Doctors quarters at the Hospital premises, deducting rent from his salary while the Defendant No.1 continues to remain in occupation of premises owned by him.

25. In Shiv Sarup Gupta4, the Hon‟ble Supreme Court while referring to a Full Bench decision of the High Court of Madhya Pradesh in Damodar Sharma and Another vs. Nandram Deviram17 held that; Pandey, J., recording the majority opinion emphasised the distinction between the expressions "genuinely requires" and "reasonably requires" and said;

"15. .........................................................................

"It is wrong to say that „genuinely requires‟ is the same as „reasonably requires‟. There is a distinction between the two phrases. The former phrase refers to a state of mind; the latter to an objective standard. „Genuine requirement‟ would vary according to the idiosyncrasy of the individual and the time and circumstances in which he lives

17. AIR 1960 MP 345 RFA No.13 of 2016 and CO No.03 of 2016 19 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma and thinks. Reasonable requirement belongs to the „knowledge of the law‟ and means reasonable not in the mind of the person requiring the accommodation but reasonable according to the actual facts. In my opinion, in this part of Section 4(g), the landlord is made the sole arbiter of his own requirements but he must prove that he, in fact, wants and genuinely intends to occupy the premises. His claim would no doubt fail if the Court came to the conclusion that the evidence of „want‟ was unreliable and that the landlord did not genuinely intend to occupy the premises."

In Phiroze Bamanji Desai1 it was observed that juridical possession of other premises by a landlord cannot be considered in determining the need of the landlord. In Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal and Others18 it was observed that, it is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business the tenants cannot be heard to say that the landlord already have their business at other places. The tenant cannot dictate terms to the landlord and advise him what he should do and what he should not. It is for the landlord to choose the nature and place of business. Thus, what categorically emerges from all of the above is that there must be an element of genuine need and not a mere desire on the part of the landlord. On the touchstone of the aforesaid decisions and while considering the plight of the Plaintiff and the fact that he has had to move from Government quarters to Doctors‟ quarters paying rent, when he owns private premises which the Defendants continue to occupy, there is no doubt that his requirement is not a mere desire, but a genuine requirement, in other words, it is a bona fide requirement for his own occupation.

18. (2005) 8 SCC 252 RFA No.13 of 2016 and CO No.03 of 2016 20 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

26. The next ground raised was with regard to the default in payment of rent. Evidently, from the month of May 2013, rent has not been deposited by the Defendant No.1. In this context, when we peruse the evidence of the Defendant No.1, he has admitted receipt of Exhibit „A‟. He also admits that he was sending the rent by Post in the name of P.W.2, however, after the Money Orders for the rent was returned to him, with the endorsement that, P.W.2 did not reside in the said address, he, admittedly, made no effort to verify her address, but continued to send the Money Orders in the previous address. He refused to accept the reality of the contents of Exhibit „A‟ and continued to forward the rent to P.W.2, who had already requested him to attorn to the Plaintiff as his tenant. The act of the Defendant No.1 has thus resulted in default of payment of rent from May 2013.

27. The ground of sub-letting requires no discussion, not having been pursued before this Court.

28. Coming to the question of eviction on the ground of alterations and additions made to the suit premises, Section 8 of the T.P.A. deals with operation of transfer and provides that unless by the terms of the deed the transfer is limited, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property. The general principle being that a person cannot transfer to another more than what he or she is entitled, ofcourse, it may be added that the method of such transfer is immaterial, inasmuch as it could be by sale, gift, mortgage or lease. The alternations/additions were RFA No.13 of 2016 and CO No.03 of 2016 21 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma carried out in 1992, when neither P.W.2 nor the Plaintiff were the owners of the suit premises. P.W.2 could not have passed on a better title than she had as apparent from the aforesaid legal position. Thus, this ground is not available to the Plaintiff.

29. Hence, in consideration of the totality of the facts and circumstances, the evidence and documents on record and the foregoing discussions, it is concluded that there is undoubtedly a jural relationship between the Plaintiff and the Defendant No.1 as landlord and tenant. The Plaintiff is entitled to the eviction of the Defendants on grounds of bona fide use and occupation of the Plaintiff himself and on account of default of rent by the Defendant No.1 from the month of May 2013.

30. With regard to the decision in Issue No.1, although this Court has arrived at a finding of ownership on a different footing from that of the Learned Trial Court, nevertheless, it cannot be denied that the Plaintiff owns the suit premises and is thus the Defendants‟ landlord.

31. Appeal allowed. Cross Objection dismissed.

32. The Defendants shall vacate the suit premises on or before 31-12-2017 and hand over vacant possession to the Plaintiff. The Defendant No.1 shall pay the arrears in rent from the month of May 2013, till the time that he hands over vacant possession of the suit premises to the Plaintiff as ordered herein. RFA No.13 of 2016 and CO No.03 of 2016 22 Dr. Yogesh Verma vs. Shiv Kumar Agarwal and Another & Shiv Kumar Agarwal and Another vs. Dr. Yogesh Verma

33. Copy of this Judgment be sent to the Learned Trial Court for information.

34. No order as to costs.

35. Records of the Learned Trial Court be remitted forthwith.

Sd/-

( Meenakshi Madan Rai ) Judge 28-06-2017 Approved for reporting : Yes Internet : Yes ds

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