Jharkhand High Court
Suresh Sharma And Ors vs Md Basiruddin on 11 September, 2015
Equivalent citations: 2016 (1) AJR 498, (2015) 4 JCR 845 (JHA)
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No.91 of 2014
1. Suresh Sharma
2. Jogesh Sharma
3. Rajesh Sharma, all sons of late Ram Awatar Sharma, resident of Mithu Road, Police Station Bank More, Post Office Dhanbad Chouki, DistrictDhanbad (Jharkhand).....Appellants Versus Md. Basiruddin, son of late Hulas Mian, resident of Mithu Road, P.S. Bank More, Post Office Dhanbad Chouki, DistrictDhanbad (Jharkhand) .............Respondent CORAM: HON'BLE MR. JUSTICE D.N. UPADHYAY For the Appellants : Mr. Amar Kumar Sinha, Advocate Mr. Sandeep Verma, Advocate For the Respondent : Mr. Ayush Aditya, Advocate Mr. Shashank Shekhar, Advocate O R D E R C.A.V. on : 09.09.2015 Pronounced on : 11.09.2015 The defendantsappellants have preferred present appeal against the judgment dated 21st April, 2014 and decree dated 03.05.2014 passed and signed by learned District JudgeVII, Dhanbad in connection with Title Appeal No.61 of 2012 by which the lower appellate court has affirmed the judgment dated 06.06.2012 and decree dated 22.06.2012 passed and signed by the Civil JudgeI, Jr. Division, Dhanbad in Title (Eviction) Suit No.31 of 2006.
2. The case of the plaintiff, in brief, is that the suit premises as described in ScheduleA of the plaint is a big shed made of brick walls and tin roof having an area of 700 sq. ft. approximately, being a part of municipal holding no.109 new (old 130) ward no.15 (new 17) situated at Mithu Road, P.S. Barkatta More, town and district Dhanbad was given on monthly rent to the defendant. At the time of filing of the suit, the rent for the suit premises was Rs.500/ per month besides electricity charges payable in the first week of each succeeding month according to English Calendar. Originally the tenancy was given to late Ram Awatar Sharma and after his death his sons (defendants) succeeded to the said tenancy and are occupying the suit premises as a tenant. They have been paying monthly rent at the rate of Rs.500/ per month which was paid till June, 2002 but thereafter defaulted 2 in making payment of rent since 8th July, 2002 for more than two months. The plaintiffs have brought the suit for the willful default in payment of rent and also on the ground of personnel necessity as his son Md. Shamim who is unemployed and requires the suit premises for starting a business of fabrication with the help of plaintiff. It is further pleaded that the defendants have damaged the suit premises and instead of vacating the premises, laid false claim hence the suit was brought by the plaintiff.
3. The case of defendants, in brief, is that the suit property is not a building as defined in Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (for short hereinafter referred to as 'BBC Act') rather it was a Parti land which was given on monthly rent of Rs.18/ to Ram Awatar Sharma (father of the defendants). After the death of Ram Awatar Sharma, the defendants inherited the tenancy and continued to pay the rent. As a matter of fact, a shed was constructed by late Ram Awatar Sharma from his own money and therefore the plaintiff is not the owner of said shed. The defendants have inherited the property left by their father. It is denied that the defendants are, or their father was, tenant of the suit premises under the plaintiff on monthly rent of Rs.500/ per month payable in the first week of succeeding month according to English Calender. It is specifically averred that the defendants have been regularly remitting the rent for the Parti land in question and it was paid up to June, 2002. They have not been given printed rent receipts on the ground of unavailability with an assurance from the plaintiff that same would be given to them on being available. It is incorrect to say that the defendants have failed to pay agreed rent to the plaintiff since July, 2002 onwards and they have not paid any rent despite the repeated request and demand made thereof. It is contended that the defendants are not defaulter in making the payment of rent. Now the suit premises is required by the plaintiff for his personal use.
4. The learned trial Court framed following issues: I. Is the suit maintainable ?
II. Has the plaintiff any valid cause of action ?
III. Whether the defendants are monthly tenant under the plaintiff in respect of the suit holding ?
IV. Whether the rent as claimed by the plaintiff is correct ? V. Whether the tenanted premises is part of Municipal Holding no.109 3 in occupation of the defendants ?
VI. Whether the defendants are defaulters in the matters of payment of agreed rent and as such they are liable for eviction ?
VII. Whether the plaintiff requires the tenanted ScheduleA premises for use of the son of the plaintiff for dealing business for bonafide requirement ?
VIII. Whether the defendants have damaged the tenanted premises due to their wrongful use and negligence of the defendants ?
IX. Whether the plaintiff is entitled for decree of eviction as claimed ? X. To what relief or reliefs the plaintiff is entitled under law and equity ?
XI. Is the suit hit by the provision of B.B. (L. R. & E.) C. Act, 1982, Transfer of Property Act and the Contract Act ?
and decided the suit on contest without cost and directed the defendants to handover vacant possession of the tenanted premises as described in ScheduleA of the plaint within three months from the date of judgment.
5. The defendantsappellants preferred Title Appeal No.61 of 2012 before learned District Judge, Dhanbad. That Title Appeal No.61 of 2012 stood dismissed from the court of learned District JudgeVII, Dhanbad vide judgment dated 21st April, 2014 and hence, this appeal by the defendants.
6. Learned counsel appearing for the appellants has mainly raised a question that suit premises, as described in the plaint, was not given on rent to the father of the defendants rather it was a Parti land given to Ram Awatar Sharma in the year 1959 on a monthly rent of Rs.18/. It was Ram Awatar who constructed a shed thereon on his own cost. The defendants who are sons of late Ram Awatar Sharma have inherited the tenancy and the property left by their father. As a matter of fact, the plaintiff is not the owner of said shed which is described as tenanted premises in the plaint rather Parti land was given on rent. Therefore, it is not a building according to the definition given in Section 2(b) of the BBC Act. The courts below have wrongly decided the suit invoking the provision contained under BBC Act. He has relied upon the judgments reported in 1993 (1) PLJR 524 (M/s Ashok Chitra Pvt. Ltd. Vrs. State of Bihar) and 1993(2) PLJR 77 (Anant Pd. Sah Vrs. Devendra Nath Gupta) and submitted that substantial 4 question of law on this point is required to be framed for just decision of this appeal. He has further referred ExhibitD, D/1 to D/58 and the money order coupons in support of his contention that rent was paid for the land and not for any shed or building.
7. Learned counsel appearing for the plaintiffrespondent has opposed the prayer and submitted that no substantial question of law is involved and the issue has well been decided by both the courts below. There is concurrent findings on the issues framed and the suit has been decided in favour of the respondents. He has relied on the judgment reported in 2000(2) PLJR 869 (Binay Kumar Maheshwari Vrs. Fanindra Prasad Mishra) and 2007(3) PLJR 582 (Hindustan Petroleum Corporation Ltd. Vrs. Rajeshwar Prasad). He has further placed reliance on the judgment reported in (2014) 2 SCC (Civ) 370 (Jogendra Ram Vrs. Phullan Mian) and (2005) 2 SCC 500 (Govindraju Vrs. Mariamman) and submitted that on the facts on which both the courts have given concurrent findings, there should not be any third trial. Learned counsel has referred ExhibitA and submitted that it is an admitted document of the defendantsappellants in which they themselves have admitted in para3 that tenanted premises is a shed and they had requested for giving permission for necessary repair.
8. I have gone through the judgments impugned and lower court records. The question of willful default in making payment of rent is a pure question of fact which could not be considered in this second appeal. So far substantial question of law as proposed by the defendantsappellants is concerned, that also does not need to be framed. The judgments on which the appellants have placed reliance are having different facts. In the case of M/s Ashok Chitra Pvt. Ltd. (supra) the land was leased out for running business or for the purpose of creating any industry and there was agreed terms and conditions that after determination of the lease the leassee shall remove all the structures. There was an admission that vacant land was given on rent. The facts similar to the case appearing in the case of M/s Ashok Chitra Pvt. Ltd. (supra) is appearing in the judgment of Anand Pd. Sah (supra). In the case at hand, the plaintiffs have made out a specific case that a shed as described in schedule of the plaint was given on rent. Besides above, ExhibitA which is reply given by the advocate of the defendants indicates their admission that tenanted premises was a shed and 5 for repairing of the shed they had sought permission. ExhibitA is a document brought by the defendants themselves.
9. Considering aforesaid aspects of the matter, I do not feel inclined to frame a substantial question of law that: "Whether the tenanted premises comes within the definition of Section 2(b) of the BBC Act or not ?"
Accordingly, I do not find any merit in this appeal and the same stands dismissed at the admission stage itself.
(D. N. Upadhyay, J.) Jharkhand High Court, Ranchi Dated : 11.09.2015 NKC// N.A.F.R.