Jharkhand High Court
Suresh Singh And Anr. vs Smt. Arti Choubey And Anr. on 21 April, 2006
Equivalent citations: [2006(3)JCR47(JHR)]
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
ORDER Narendra Nath Tiwari, J.
1. In this revision application, preferred under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the said Act) the tenants-defendants-petitioners have assailed the judgment and decree dated 16th August, 2005 passed in Eviction Suit No. 7 of 2002 by learned Munsif, Daltonganj, whereby the landlord-plaintiffs-opposite party's suit for eviction filed on the ground of personal necessity, has been decreed and the defendants-petitioners have been directed to have over the vacant possession of the premises.
2. The landlords-plaintiffs' case in short is that the suit premises was once owned and possessed by one Jagarnath Choubey, the grandfather-in-law of the plaintiffs. The said Jagarnath Choubey had a daughter, namely, Ram Pyari Devi, who became widow in her early age. She was brought to parental home by her father and in order to make provision for subsistence, her father executed a deed of maintenance dated 18.51955 in her favour giving right of maintenance out of the income from the suit house. The said Ram Pyari Devi, after coming in possession of the same, let out the house on rent and out of rental income, used to maintain herself. After coming into force of Hindu Succession Act, 1956, the said limited right of Ram Pyari Devi became absolute and she became the full owner of the house. She, thereafter, got her name mutated in the office of State and had been paying rent. Her name was also mutated in the Municipality and she had been paying tax and getting receipts thereof. Ram Pyari Devi, subsequently, transferred the said house by virtue of a registered deed of gift dated 27th July, 2002, in favour of the plaintiffs. The defendants were inducted as tenants in the suit premises by the said Ram Pyari Devi. The western portion of the suit house was let out to the defendant No. 1 on a monthly rent of Rs. 530/- per month including electric charge and the defendant No. 2 was inducted as tenant on monthly rent of Rs. 500/- per month including the electric charge in the eastern portion of the house. The said tenants were informed about the transfer of the suit house in favour of the plaintiffs asking them to pay rent to the plaintiffs. However, the plaintiffs themselves required the suit premises for use and occupation of their husband(s). They requested the defendants to vacate the suit premises, but the defendants did not vacate and also refused to pay rent to the plaintiffs saying that they have been paying rent to one Kameshwar Choubey, elder brother of Ram Pyari Devi. The plaintiffs, thereafter, sent a notice requesting the defendants to vacate the suit premises, as they required the same for their use and occupation. But the same also was not heeded upon. The plaintiffs, then, filed the said suit.
3. The defendants, on receiving the summons, appeared and under the provisions of Section 14 of the said Act obtained leave to contest the suit. The defendants then filed written statement contesting the plaintiffs' case on identical grounds. Besides taking the usual pleas, they denied the relationship of landlord and tenant and challenged the maintainability of the suit. It was stated that the plaintiffs are neither the title holder nor is the landlady of the premises and that Kameshwar Choubey was their landlord to whom the defendants used to pay rent to the knowledge of Ram Pyari Devi. It was stated that Ram Pyari Devi had no right, title or interest and has no authority to execute deed of gift in favour of the plaintiffs. As there was no relationship of landlord and tenant between the parties, there was no question of vacating the house by the defendants for the alleged personal necessity of the plaintiffs.
4. It appears from the record that the petitioners' defence against ejectment was struck of for non-compliance of the order of the Court passed under Section 15 of the said Act, directing the defendants to pay monthly rent to the plaintiffs.
5. On the basis of the pleadings, learned trial Court framed the following issues:
(i) Whether the suit is maintainable in its present form or not?
(ii) Whether the plaintiffs have valid cause of action?
(iii) Whether there exists relationship of landlord and tenant between the parties?
(iv) Whether the suit premises is required by the plaintiffs for their personal use?
(v) Whether the partial eviction of the tenanted premises would solve the purpose of the plaintiffs?
(vi) Whether the plaintiffs are entitled for a decree of eviction against the defendants?
6. The plaintiffs, in order to prove their case, adduced oral and documentary evidences. Though the defence of the defendants was struck off for non-compliance of the order of the Court under Section 15 of the Act, they were allowed to adduce evidence in support of the other pleas except their defence against ejectment. The defendants produced two witnesses DW 1 and DW 2 to support their defence that there was no relationship of landlord and tenant between the parties.
7. Learned trial Court, after discussing and considering the pleadings and evidences and other materials on record, came to the finding that the plaintiffs are the owner of the suit property for the purpose of maintaining this eviction suit on the ground of personal necessity and there exists relationship of owner and tenant between me plaintiffs and the defendants and that the suit is maintainable in its present form. Learned Court below further held that the plaintiffs required the premises for their personal necessity. Considering the question of partial eviction, learned trial Court held that the defendants neither had any evidence on the point nor have raised the question during the course of argument and as such the same were decided in favour of the plaintiffs and against the defendants. Learned trial Court has also decided the other issues in favour of the plaintiffs and decreed the suit.
8. Mr. N.K. Prasad, learned senior counsel, appearing on behalf of the petitioners, sought to assail the judgment and decree of the learned trial Court on the following grounds:
(i) The Court below has erred in deciding the question of title and ownership in a suit of summary nature under the provisions of Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act. The finding is wholly without jurisdiction and illegal.
(ii) Learned Court below, without deciding the issue regarding the relationship of landlord and tenant between the parties, has passed the decree for eviction against the defendants, which is not permissible. Learned Counsel relied on a decision of the, Supreme Court in Rajendra Tiwary v. Basudeo Prasad .
(iii) The Court below has not complied with the mandatory provision of law as provided under proviso to Section 11(1)(c) of the Act and has casually decided the issue of partial eviction observing that no such point was raised by the defendants whereas the duty is cast on the Court to consider the same even if the same is not claimed by the tenants.
(iv) The plaintiffs have filed one suit against two defendants for two separate tenancies, which is not permissible in law.
9. Mr. P.C. Roy, learned Counsel appearing on behalf of the opposite parties, replying to the said arguments, submitted that in the instant suit the tenants-petitioners have themselves admitted that they are tenants in the suit premises. They have not claimed their own title and ownership and as such there was no dispute of title between the parties. The tenants-petitioners, in their affidavit in paragraph 6 of their petition for leave to contest, have admitted that Shri Kameshwar Choubey, the elder brother of Ram Pyari Devi used to collect rent for and on her behalf. Learned Counsel submitted that in view of the said admission of the tenants no issue of contesting claim of ownership was involved between the parties. However, only for the limited purpose of the eviction on the ground of personal necessity, learned Court below has incidentally considered and held that the petitioner is the owner of the suit premises and the defendants are tenants. So far as the second ground is concerned, since the defendants, themselves, have admitted that the rent was collected by Kameshwar Choubey on behalf of her sister Ram Pyari Devi, the relationship of landlord and tenant was admitted and the defendants are estopped from challenging the plaintiffs' title under the provisions of Section 116 of the Evidence Act. Since the said fact was admitted, the relationship was established by the said admission and relationship between the parties as landlord and tenant was established, no further finding was required on the said point. Replying to the appellants' third ground, learned Counsel submitted that the defendants never denied the plaintiffs' claim of necessity of the entire premises, which is an old mud built katcha house in dilapidated condition and requires demolition and reconstruction for the purpose of the plaintiffs' need. Since the defendants did not contest the suit and did not deny the landlords' said need of the entire premises, nothing further was required to be considered and the Court below has rightly concluded and has effectively met the requirement of the proviso to Section 11(1)(c) of the Act. Mr. Roy, replying to the petitioners' last ground, has submitted that the landlords are the same and the suit premises were part of the same house and both the tenanted premises are required by the plaintiffs for reconstructions according to the need of the plaintiffs' separate Court fees were paid in accordance with law, there is no legal impediment in suing the tenants of the said two premises in one suit. It was also convenient for the parties and thereby multiplicity of legal proceeding is avoided. It has not caused any prejudice to the tenants-petitioners in any way.
Learned Counsel, thus, concluded that the grounds taken by the petitioners are wholly baseless and there is absolutely no error or infirmity in the Judgment and decree of the Court below which is well considered and supported by sound reasons and the same does not warrant any interference by this Court.
10. Having heard learned Counsel for the parties and considered their submissions and materials available on record, I find that the learned Court below has not entered into and decided any complicated issue of title and ownership. In fact the tenants-petitioners had not claimed any ownership or their own title over the suit premises rather they have admitted themselves as tenant. On perusal of the affidavit filed seeking leave to contest the suit, I find that they have made specific statement that they had been paying rent to Shri Kamesh-war Choubey who was collecting the same on behalf of his sister, Ram Pyari Devi. The defendants, thereby, admitted that said Ram Pyari Devi was their landlady. It has been rightly argued by the learned Counsel for the opposite parties that once, relationship of landlord and tenant having admitted, the petitioners are estopped from challenging the title of Ram Pyari Devi in view of the provisions of Section 116 of the Evidence Act. Learned trial Court, having noticed the same, has held that in view of the said admission made by them, the defendants cannot deny the tenancy under Ram Pyari Devi. Learned trial Court has, thus, come to the finding that the plaintiffs have proved themselves as the owner for seeking eviction on the ground of personal necessity. The Court below has, thus, not decided any complicated issue of title, as has been contended by the learned Counsel for the petitioners, rather he has incidentally discussed and held the plaintiffs as owners entitled to file suit on the ground of personal necessity. The decision of the Supreme Court in Rajendra Tiwary (supra) has got absolutely no application to the facts of this case. The Apex Court, in the said case, has held that the question of title to the suit premises is not relevant having regard to the width of the definition of the terms 'landlord' and 'tenant' in Clauses (f) and (h) respectively of Section 2 of the Act. The sine qua non for granting the relief in the suit under the Act is existence of relationship of landlord and tenant, which was, as aforesaid, admitted by the tenants in the instant case. For the purpose of filing the eviction suit on the ground of personal necessity, ground taken by the learned Counsel for the petitioners that the judgment and decree of the learned trial Court is bad in absence of a finding that the plaintiffs are the landlords as the said Act speaks about landlords and not about the owners and the Court has not given any finding that the plaintiffs are the landlords within the definition of the said Act. In my considered opinion, the contention of the learned Counsel for the petitioners is misconceived. Section 2(f) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 defines landlord as follows:
(f) "landlord" includes the person who for the time being is receiving or is entitled to receive rent of a building whether on his own account or on behalf of another, or on account or on behalf of for the benefit of himself and others or as an agent, trustee, executor, administrator, receiver, guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant;
From plain reading of the said definition, it is apparent that the definition of landlord does not exclude the owner of the premises who is also entitled to receive rent of his/her building. The ownership is the right indefinite in point of user, and unlimited in point of duration. As defined in Halsbury's Laws of England ownership consists of innumerable rights over properties e.g. the rights of exclusive enjoyment of destruction, alteration and alienation and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing but as merged in one general right of ownership. Thus, the owner Includes a person who is receiving or is entitled to receive rent of any building or land, which he or she owns and thus is not excluded from the definition of the landlord as given in Section 2(f) of the said Act.
11. In view of the above, I find no error in the judgment and decree of the learned Court below in using the word 'owner' in place of 'landlord' as 'landlord' within the meaning of Section 2(f) of the said Act includes an owner for the purpose of maintaining an eviction suit. So far as the non-consideration of the question of partial eviction is concerned, I find no substance in the submission of the learned Counsel. Learned Court below has rightly come to the conclusion that since the defendants have not contested the point of requirement of the whole premises, neither has raised any question during the trial or hearing, there was no material before the Court for giving a thought as to the reasonable requirement of the landlord could have been satisfied from evicting the tenants from a part of the building and allowing the tenants to continue occupation of the rest of the premises. The said proviso to Section 11(1)(c) comes into play when there are material on record for the Court to think that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building, allowing the tenant to continue occupation of the rest and when the material satisfying the said condition is available on record, it becomes mandatory to pass decree for partial eviction of the tenant, fixing proportionate fair rent for the portion to be occupied by the tenant. The said proviso postulates existence of some material on record over which the Court would give a thought on the aspect of partial eviction. Further, as it appears from the record, the defence of the tenants against ejectment was struck off for not complying with the order of the Court passed under the provisions of Section 15 of the Act, i.e. for non-payment of rent. The said proviso to Section 11 (1)(c) is based on principles of equity and the benefit of such provision cannot be extended to a person who is guilty of non-compliance of the order of the Court. The tenants-defendants did not comply with the order of the Court passed under Section 15 and their defence against ejectment having been struck off against whole of the suit premises and not against partial eviction, allowing such tenant to occupy part of the premises under the proviso to Section 11 (1)(c) would frustrate the object of Section 15 of the Act, as even a defaulter can use the same for taking defence only for his partial eviction.
12. So far as the maintainability of one suit against the defendants in respect of tenancies is concerned, in my view there is no bar in filing one suit against two tenancies in the same premises, particularly on common ground like personal necessity of the landlord of the premises of the same building. The said view finds support from the decisions in Padam Singh Jain v. Chander Mohan reported in 1991-PLJR 797 and in Bharti Pustak Kendra v. Chhedi Lal Daruka reported in 1992(2) PUR 692.
13. I, therefore, find no illegality or infirmity in the judgment and decree of the Court below warranting intervention by this Court in its revisional jurisdiction under Section 14(8) of the Bihar Building (Lease, Rent and Evictin) Control Act, 1982. This revision application is accordingly, dismissed. However, there shall be no order as to costs.