Patna High Court
Jai Chandra Prasad And Ors. vs Bishwanath Prasad on 8 December, 1980
Equivalent citations: 1981(29)BLJR736
JUDGMENT Shivanugrah Narain, J.
1. This application by the plaintiffs is directed against an order of the Additional Munsif, Patna City dismissing their application under Section 13 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1977 for an order directing the defendant who is opposite party in this Court to deposit arrears of rent and current rent at the rate of Rs. 50/- per month.
2. The aforesaid application was filed in a suit brought by the plaintiffs for eviction of the defendant from a portion of a house situate in Mahalla Sultanganj, Patna City bearing new holding No. 160 Admittedly, plaintiff No. 1 who is husband of plaintiff No. 2, and the defendant Bishwanath Prasad are both sons of Narain Sah by two different wives'. The suit for eviction was brought by the plaintiffs on the footing that the suit house as well as some other properties were gifted to them by Daulati Kuer, widow of Jitu Sao, the admitted owner of the suit properties and that the defendant was a tenant in a portion of the suit house. According to the plaintiffs, the rent which was originally Rs. 30/- per month was increased to Rs. 50/- per month in 1975 and the defendant paid rent at that rate till 1975 but he defaulted in payment of rant from January 1976 to June 1977. On the aforesaid allegations and also on further averment that part of the building which was in suit was required by the plaintiffs for their own use and occupution, the plaintiffs filed the aforesaid suit for eviction and arrears of rent.
3. The suit was resisted by the defendant on the ground that the alleged deed of gift by Mossomat Daulati Kuer, even if it was genuine, was never acted upon and that after her death all the sons of Narain Sao became entitled to the house and were living in that house as owners thereof, occupying small but separate portions of the suit house. Thus, the defendant specifically denied the existence of relationship of landlord and tenant between the plaintiffs and himself.
4. In course of hearing or the application under Section 13 of the Act plaintiff No. 1 examined himself and filed various documents including the registered deed of gift, municipal receipts etc. to show that the names of the plaintiffs have been mutated in respect of the house and some other document of which it is necessary only to refer Exts. 2 series and 6 series. Ext. 2 is a certified copy of a petition purported to be filed by Narain Sao, father of plaintiff No. 1 and the defendant to the Executive Officer supporting the case of mutation of the plaintiffs in respect of the holding including the suit holding and stating therein that he and his brothers including Han Das and Ram Das who had filed petitions objecting to the aforesaid mutation, had no concern with the house and were residing therein as tenants on payment of rent to the plaintiffs. Ext. 2/1 is a petition filed Bishwanath Prasad to the Chief Engineer, Patna Electric Supply Company Ltd., praying that the metre for the electric supply to the house which stood in his name be transferred in the name of his younger brother Jai Chandra Prasad who was also owner of the house (jo ki makan malik bhi hain), Ext. 6 series are statement of account showing the amount payable by the plaintiffs on account of foodgrains supplied from the shop of the defendant and the rent payable to the plaintiffs by the defendant. According to the plaintiffs, Ext. 6 was in the pen of the defendant himself and other documents of Ext. 6 series were in the pen of their brother Amar Nath who was Munib of the defendant. The defendant examined himself and also another witness to deny the relationship of landlord and tenant. The learned Munsif held that though it appeared from the evidence that the plaintiffs had title over the house but it was not dear from the evidence that the defendant was their tenant. He, accordingly, rejected the application stating that if in the course of hearing it appeared that such a relationship of landlord and tenant existed between the plaintiff and the defendant then the point may be reconsidered. On these findings, he rejected the petition.
5. Now it is well settled that even when the relations of landlord and tenant is denied in course of an application for deposit of rent made under Section 11-A of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947. hereinafter called the 1947 Act which corresponds to Section 13 of the present Act, the Court inspite of the denial has to make an investigation into the matter and come to a tentative decision on that point. As who pointed out by Tarkeshwar Nath, J speaking for the Full Bench in Mahabir Ram v. Shiva Shankar Prasad and Ors. 1968 P.L.J.R. 75. upon an application under Section 11-A of the 1947 Act.
The correct procedure for a Court to adopt would be that it should tentatively examine the materials available on the record and determine whether the denial of relationship of landlord and tenant by the defendant or dispute raised by him with regard to the title of the plaintiff was bonafide or a mere pretence and without any merit. If the Court finds that the said denial is merely for the sake of denial and that there was no substance in that denial, the Court should proceed to make an order for deposit of rent if the other conditions laid down in that section are fulfilled.
Now in this case it cannot be doubted that the Court below has proceeded to examine the materials available on record and has recorded its conclusion that on the materials the plaintiffs had not been able to satisfy him about the existence of relationship of landlord and tenant between them and the defendant.
6. Shri Parmeshwar Prasad, appearing on behalf of the plaintiff petitioners, contends that the Court below has erred in so holding. Now prima facie the question whether the evidence justifies a finding regarding the existence of relationship aforesaid, is a question of fact. I am not satisfied that any error of law has been committed by the Court below in arriving at that finding. Shri Prasad referred to Exts. 2 series and Exts. 6 series but as the defendant had definitely stated that Ext. 6 was not in his pen and the fact that it was proved to be in pen of the defendant only by the testimony of the plaintiffs and the circumstance that the other Ext. 6 series were in the pen of a full brother of plaintiff No. 1, who it was asserted by the defendant was in collusion with the plaintiff, it cannot be said that the Court acted perversely in coming to the conclusion that he was not satisfied about the relationship of landlord and tenant. Admittedly, the defendant was also a son of Narain Sah and he was residing along with the plaintiffs and others in the house since long before the deed of gift and there was no specific evidence as to when the relationship of landlord and tenant came into existence. I see, therefore, no jurisdiction for interfering in revision with the finding of the Court below that the plaintiffs were unable to establish that the relationship of landlord and tenant existed between them and the defendant. I must, however, add that this finding is only a tentative finding and the Court below as it has itself pointed out will be competent to go back on that finding if evidence so requires.
7. At any rate I find no reason to hold that any failure of justice has with occur or any irreparable injury to the plaintiffs would be caused if the impugded order is allowed to stand. As I have already pointed out that the plaintiffs have still a right to prove that the relationship of landlord and tenant exists and if they prove that relationship they will be certainly entitled to recover in appropriate proceedings the amount which the defendant would have been required to deposit, if their application under Section 13 had succeeded. I would, accordingly, dismiss the application. As there is no appearance on behalf of the opposite party there will be no order as to costs.