Jharkhand High Court
Defendant/ vs G.E.L. Church on 3 August, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
SA No. 242 of 2014
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 242 of 2014
(Against the judgment dated 27.11.2014 passed by learned Judicial
Commissioner-XI, Ranchi in Title (Eviction) Appeal No. 11)
Kartar Singh, S/o Late Jiwan Singh, Proprietor M/s Orissa Saw Mill,
Old H.B. Road, P.O. + P.S.- Chutia, District- Ranchi
... Defendant/Appellant/ Appellant
Versus
G.E.L. Church, a Society Registered under the Society Registration Act,
1980 through its General Secretary Board of Property G.E.L. Church
Compound, P.O. & P.S.- Chutia, District- Ranchi
... Plaintiff/Respondent / Respondent
For the Appellant : Mr. Rahul Gupta, Adv.
For the Respondent : Mr. Jai Prakash, Sr. Adv.
Ms. Omiya Anusha , Adv.
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree of concurrence dated 27.11.2014 passed by learned Judicial Commissioner-XI, Ranchi in Title (Eviction) Appeal No. 11 of 2007 whereby and where under learned First Appellate Court dismissed the appeal and confirmed the judgment and decree of dismissal of Title (Eviction) Suit No. 8 of 1998 passed by learned Sub- Judge II, Ranchi on 20.12.2006.
3. The brief facts of the case is that the plaintiff filed a suit for eviction of the defendant who was a tenant under the plaintiff in respect of the suit premises, from the said suit premises and the decree for Rs. 27,485/- on account of arrear rent from January, 1997 to November, 1998, cost of the suit and other reliefs. The defendant in his written statement interalia pleaded that the suit is not maintainable for want of notice under Section 106 of the Transfer of the Property Act as 1 SA No. 242 of 2014 portion of the suit land was leased out by the plaintiff to the defendant under the provisions of Transfer of Property Act and unless the tenancy is determined, the defendant cannot be evicted during the continuance of the tenancy but the defendant admitted that he is tenant of the plaintiff. It was also pleaded by the defendants that the plaintiff allowed the defendant to continue over suit property on oral lease from April 1991 at the enhanced rate of Rs. 1195/-. The defendant never promised to vacate the suit land. The defendant pleaded that the defendant is not defaulter of the payment of rent but in fact, the plaintiff refused to accept the rent, when tendered by the defendant. It was also interalia pleaded by the defendant that the suit is not maintainable under the Bihar Building (Lease, Rent and Eviction ) Control Act, 1982.
4. On the basis of the rival pleadings , learned trial Court framed following ten issues :-
1. Is the suit maintainable in its present form?
2. Is there any cause of action for the suit ?
3. Is the suit barred under the principle of waiver, estoppel and acquiescence?
4. Is the suit barred for want of notice under Section 106 of the T.P.Act?
5. Is there relationship of landlord and tenant between the parties for the suit land?
6. Whether the plaintiff requires the suit premises reasonably and bonafidely?
7. Whether the defendant became defaulter in payment of rent of suit premises for two consecutive months ?
8. As to whether plaintiff is entitled for a decree of eviction of defendant from the suit land as prayed for?
9. As to whether plaintiff is entitled for a sum of Rs. 27,485/- on account of the arrears of rent from January 1997 to November 1998?
10. To what relief or reliefs the plaintiff is entitled to?
5. Learned trial Court considered the oral evidence of the seven witnesses examined by the plaintiff and documents which were marked as Exhibit 1, 1/A, 1/B and 2 as well as five witnesses were examined by the defendants and the documents which were marked as Exhibits A to I.
6. Learned trial Court first took up issue no. '5' and came to conclusion that on the basis of the admission of the defendant in the written statement that portion of the suit premises was leased out by the plaintiff to the defendant under the 2 SA No. 242 of 2014 provisions of Transfer of Property Act and also on the basis of the lease deed, marked as Exhibit E and came to conclusion that there is relationship of landlord and tenant between the parties in respect of the suit property. Then, the trial Court took up issue nos. 7 and 9 together and held that the defendant defaulted in payment of rent to the plaintiff amounting to Rs. 27,485/- during the period from January 1997 to November, 1998. In respect of issue no. 6, learned trial Court held that the plaintiff required the suit property reasonably and bonafidely. In respect of issue no. 4 and 1 taken up together, learned trial Court held that the notice is valid under section 106 of the Transfer of Property Act and the suit is maintainable under the Transfer of Property Act. Learned trial Court disposed of the issue no. 3 as not pressed and in respect of issue nos. 2, 8 and 10, which were taken up together, learned trial Court held that there is valid cause of action for the suit and as the tenancy has been determined by a valid notice under Exhibit 2 and upon determination of the tenancy, the plaintiff can recover the possession of the suit premises and the plaintiff is not required to prove other grounds like default or personal necessity as required under the Rent Act, hence, held that the plaintiff is entitled for decree for eviction of the defendant from the suit land and decreed the suit.
7. Being aggrieved by the said judgment and decree, passed by learned trial Court in Title (Eviction) Suit No. 8 of 1998 dated 20th December, 2006, the defendant-appellant filed the Title (Eviction) Appeal No. 11 of 2007.
8. The First appellate Court made a limited remand of the Title Suit to the trial Court for the purpose of considering and deciding the issue as to whether bonafide personal necessity of the plaintiff would be satisfied by the partial eviction of the suit premises in question of the tenant and also directed for additional evidence of the parties if required shall be recorded by the trial court. Learned trial Court vide order dated 3 SA No. 242 of 2014 03.08.2013 after taking the fresh evidence and also considering the evidence in the record, came to a finding that the plaintiff required the whole of the suit premises in order to meet out his requirements and partial eviction would not satisfy the bonfide personal necessity of the plaintiff.
9. Learned First Appellate Court vide the impugned judgment, ultimately dismissed the appeal and confirmed the judgment passed by the trial Court. Learned First Appellate Court formulated the following points for consideration :-
1. Whether the respondent/plaintiff has determined the tenancy and notice is required as per provisions 106 of the Transfer of Property Act?
2. Whether the suit premises come within the purview of Bihar Building (Lease, Rent and Eviction) Control Act, 1982?
3. Whether the appellant/defendant has defaulted in payment of rent?
4. Whether the respondent/plaintiff requires the suit premises bonafidely and in good faith?
10. In respect of first point, learned First Appellate Court observed that as by Exhibit 2, the plaintiff terminated the tenancy and the defendant continued in possession over the suit property after expiration of the lease period hence, the decree passed in Title Suit is valid. In respect of the 2nd point for determination, learned First Appellate Court held that since there has been construction over the suit property after execution of the lease deed, hence, the provisions of the Bihar Building (Lease, Rent and Eviction ) Control Act, 1982 is applicable to the matter and dispute between the parties. In respect of the 3rd point for determination, learned First Appellate Court came to the conclusion that the appellant-defendant has not defaulted in payment of rent for consecutive two months. In respect of fourth point for determination, learned First Appellate Court came to the conclusion that the plaintiff requires the suit premises bonafidely and in good faith and dismissed the appeal, as already indicated above.
11. At the time of hearing of the appeal, following substantial question of law was formulated vide order dated 9th July, 2015:-
4 SA No. 242 of 2014"Whether in view of admitted fact that vacant land had been leased out by the lessor i.e. the plaintiff-respondent to the lessee i.e. the appellant -defendant, a suit under Bihar Building (Lease, Rent and Eviction) control Act, 1982 was maintainable?"
12. Mr. Rahul Kumar Gupta, learned counsel for the appellant submits that the provision under Bihar Building (Lease, Rent and Eviction ) Control Act , 1982 is not applicable to a vacant land and learned First Appellate Court erred by considering the provisions of Bihar Building (Lease, Rent and Eviction ) Control Act , 1982 in dismissing the appeal.
13. Mr. Rahul Kumar Gupta, learned counsel for the appellant relies upon the judgment of the Hon'ble Patna High Court in the case of M/s Ashok Chitra Private Limited vs. The State of Bihar & Ors. Reported in 1991 SCC OnLine Pat 288, paragraph 9, 10 and 11 of which read as under :
"9. Our Findings:--
10. The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, was initially enacted as a temporary statute. It underwent changes from time to time and took shape of Act in question. The word 'Building' has been defined under section 2(b) of the Act which runs as follows:--
"Building" means any building, or hut a part of the building or hut, let or to be let separately for residential or non-residential purposes, and includes
(i) the garden, grounds, and out houses, if any appurtenant to such building or hut or part of such building or hut; and
(ii) any furniture supplied by the landlord for use in such building or hut or part of a building or hut"(emphasis added).
11. A bare perusal of the definition shows that the word building as defined above does not include within its ambit any vacant piece of land."
and submits that it is a settled principle of law that the provisions of Bihar Building (Lease, Rent and Eviction ) Control Act, 1982 is not applicable to vacant lands, hence, it is submitted that the impugned judgment passed by learned First Appellate Court is based on illegal and irrelevant considerations hence, the same be reversed and the suit of the plaintiff be dismissed.
14. Mr. Jai Prakash, learned senior counsel for the respondents on the other hand defends the impugned judgment passed by both the Courts below. Mr. Jai Prakash further submits that the plaintiff has not filed the suit under the provisions of Bihar Building (Lease, Rent and Eviction ) Control Act, 1982 rather it 5 SA No. 242 of 2014 is a suit under the provisions of Transfer of Property Act for eviction and money decree for realising arrear rent of Rs. 27,485/- and in this respect, Mr. Jai Prakash, learned senior counsel by drawing attention of the Court to paragraphs 3 and 11 of the plaint and paragraph 5 of the written statement, filed by the parties in the suit, submits that there is clear cut averments in the pleadings of the parties to indicate that the suit was filed under the provision of Transfer of Properties Act for eviction and money decree for realization of money. The learned senior counsel further draws attention of the Court to the judgment of the trial Court dated 20.12.2006 and submits that in the said judgment, learned trial Court, has in no uncertain terms, categorically stated that as in this case, the tenancy has been determined by valid notice vide Exhibit 2 and on determination of the tenancy, the plaintiff is entitled to recover the possession of the suit, hence, the plaintiff does not require to prove the ground of default or personal necessity as required under the Rent Act, also indicates that learned trial Court dismissed the suit, treating the same to be a suit under the Transfer of Property Act and decreed the suit without taking any aid of the provisions of Bihar Building (Lease, Rent and Eviction ) Control Act , 1982. It is further submitted by Mr. Jai Prakash that the defendant-appellants themselves in the First Appeal, agitated before the First Appellate Court that the suit is one under the provisions of Bihar Building (Lease, Rent and Eviction ) Control Act , 1982 and agitated before the First Appellate Court that as the Trial Court has not considered the issue whether the partial eviction from the suit premises suffice the purpose or not, hence, at the behest of the defendant-appellant the suit was remanded back by the First Appellate Court and trial Court vide its order dated 03.08.2013, returned the finding in the matter of limited remand by holding that the plaintiff required the whole of the suit premises in order to meet out its requirement and partial 6 SA No. 242 of 2014 eviction would not satisfy the bonafide personal necessity of the plaintiff but the defendant-appellant in this Court has taken the diametric opposite stand that First Appellate Court committed error by considering the provisions of Bihar Building (Lease, Rent and Eviction ) control Act , 1982, hence, it is submitted that the substantial question of law framed in this appeal, does not arise at all. In respect of the principle of formulating the substantial question of law in the 2nd appeal, the learned senior counsel relies upon the judgment of the Hon'ble Supreme Court of India in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs. reported in (2001) 3 SCC 179 , paragraph 9 and 10 of which read as under :-
"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438], Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722].)
10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction."
15. It is further submitted by the senior counsel that at the hearing of the appeal, the scope of hearing is circumscribed by the substantial question of law formulated by the High Court and as in this appeal, the question formulated, does not arise at all, hence, this appeal be dismissed. Mr. Jai Prakash further relies 7 SA No. 242 of 2014 upon the judgment of the Hon'ble Supreme Court of India in the case of Damodar Lal vs. Sohan Devi & Ors. reported in (2016) 3 SCC 78 ,paragraph 15 of which reads as under:-
"15. We do not propose to discuss other judgments, though there is a plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and the first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment [Sohan Devi v. Damodar Lal, Civil Second Appeal No. 109 of 2000, decided on 27-9-2012 (Raj)] of the High Court and restore that of the trial court as confirmed by the appellate court."
and submits that in view of the concurrent findings of the fact by the Trial Court as well as the First Appellate Court, it would not be proper for this Court to look into the finding of the facts arrived at by both the Courts below in respect of termination of the tenancy by valid notice marked as Exhibit 2 as well as default of the defendant in payment of rents from January 1997 to November 1988 amounting to Rs. 27,485/- and undisputed fact of existence of relationship of the landlord and the tenant between the plaintiff and the defendants, hence, on this score also, this appeal be dismissed.
16. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that the provisions of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 does not exclude the jurisdiction of any Court in filing any suit but it only protects the tenant by putting some additional constraints upon the landlord, by specifying only six grounds mentioned in Section 11 of the said Act which reads as under :-
"11. Eviction of tenants- (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of Section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:-
(a) for breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment;8 SA No. 242 of 2014
(b) where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of the tenant or of any person residing with the tenant or for whose behavior the tenant is responsible;
(c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord:
Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the building within the meaning of clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under section 5;
Explanation I.- In this clause the word "landlord" shall not include an agent referred to in clause (f) of Section 2.
Explanation II.- Where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference.
(d) where the amount of [two months] rent, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 16;
(e) in case of a tenant holding on a lease for a specified period, on the expiry of the period of the tenancy; and
(f) the landlord requires the premises in order to carry out any building work at the instance of the Government or the Municipality or Municipal Corporation or the Notified Area Committee or the Regional Development Authority or any other Authority within whose jurisdiction the building lies and such building work cannot be properly and fully carried out without the premises being vacated.
(2)(a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building he shall give fifteen day's previous notice in writing of his intention to do so to the landlord and to the District Magistrate who shall under intimation to the landlord within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government or direct that the landlord shall be put in possession of the building:
Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building.
(b) Where a building is vacated by a servant of the Government any person occupying such building other than the person referred to in clause
(a) shall be liable to be evicted by the District Magistrate in such manner as may be prescribed:
Provided that after a landlord has been or is deemed to have been put in possession of such building, he may let it to any person."
17. Now coming to the facts of the case and perusal of the record reveal that the trial Court in its judgment dated 20.12.2006 had no doubt in its mind that the suit is under the provisions of Transfer of Property Act. The essential ingredients to comply for a landlord to succeed in evicting the tenant under the provisions of Bihar Building (Lease, Rent and Eviction ) 9 SA No. 242 of 2014 Control Act, 1982, is tougher than under the provisions of Transfer of Property Act. Learned First Appellate Court apparently at the behest of the defendant- appellant himself, considered and came to a conclusion that the plaintiff has succeeded in fulfilling the tougher conditions envisaged under Bihar Building (Lease, Rent and Eviction ) Control Act , 1982 but in the process, learned First Appellate Court has also given concurrent finding in respect of the grounds upon which the tenant can be evicted from a lease hold land, i.e. valid termination of tenancy, existence of landlord and tenant relationship. It is needless to mention that there is no contention of the appellants that the impugned judgment and decree passed by the first appellate court of concurrent finding of facts is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence. This Court finds that, the finding of fact arrived at by the first appellate court is reasonable and cannot be termed as perverse.
18. Under such circumstances, this Court finds that it is a misnomer that the plaintiff filed the suit under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982.
19. In view of the concurrent finding of facts, this Court finds that there is no substantial question of law, involved in this appeal, as both the Courts below have returned concurrent finding of facts regarding the essential ingredients for making the plaintiff entitled for the relief prayed for in the suit, this Court is in the considered opinion that there is no merit in this appeal, accordingly, the same is dismissed on contest.
20. No order as to costs.
21. Let a copy of this Judgment along with the Lower Court Records be sent back to the Court concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi.
Dated 3rd August, 2022 Smita/AFR 10 SA No. 242 of 2014 11