Patna High Court - Orders
Mogammad Quamruddin vs Shamim Ara Naaz & Anr on 6 November, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
S.A. No.123 of 2007
Mohammad Quamruddin son of Abdul Majid,
resident of Mohalla Mohammadpur Sahganj, P.O. Mahendru, P.S.
Sultanganj, District Patna..........Defendant-Appellant-Appellant.
Versus
1. Shamim Ara Naaz wife of M. Ravi Imam
2. Firdaus Zaman, minor daughter of Khalid Zamman under the
guardianship of her father and next friend Khalid Zamman,
both residents of Mohalla Sabzibagh, P.O. Bankipur, P.S.
Pirbahore, District Patna.
.........Plaintiffs-Respondents-Respondents.
For the appellant : M/s Sukumar Sinha, Pradeep Kumar and
Abinash Kumar, Advocates.
For the respondents : Mr. S.S.Dwivedi, Sr. Advocate with Mr.
Ajay Kumar Gautam, Advocate.
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08/ 06.11.2009Heard learned counsel for the appellant and learned counsel for respondent nos.1 and 2.
2. This second appeal has been filed by the sole defendant-appellant-appellant challenging the judgments and decree of both the learned courts below.
3. The matter arises out of Eviction Suit No.28 of 1992, which was filed by the plaintiffs-respondents-respondents for eviction of the sole defendant from the suit premises detailed in Schedule-B of the plaint on the ground of their bonafide personal requirement as well as default in payment of rent by the defendant and also for breach of terms of tenancy as well as for recovery of arrears of rent. The said suit was decreed on contest by the learned Munsif, Patna City vide his judgment and decree dated 27.08.2001.
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4. Against the aforesaid judgment and decree of the trial court, defendant filed Title Appeal No.89 of 2001(110/2006) which was dismissed on contest by the learned Additional District Judge-cum-Fast Track Court No.II, Patna vide his judgment and decree dated 31.05.2007. The said judgments and decree of the learned courts below are under challenge in the instant second appeal.
5. Learned counsel for the defendant-appellant vehemently challenges the judgments and decree of the learned courts below on various grounds claiming that he was in possession of the suit premises in his own right as a donee and that there was no relationship of landlord and tenant between the parties and as such there was no question of default in payment of rent. Learned counsel for the respondents contested the claim of learned counsel for the appellant.
6. From the arguments as well as the materials on record, including the judgments and decree of the learned courts below, it is quite apparent that admittedly original owner was one Soni Suleman and plaintiffs claimed to be his transferees vide registered sale deed dated 12.05.1989(Ext.1), whereas the defendant claimed on the basis of oral 'Hiba' from the said Soni Suleman prior to 1985, also stating that although there was no relationship of landlord and tenant between the donor and the donee, but he was the caretaker of the donor with respect to the house a part from which is the subject matter of the suit. 3
7. It is apparent from the materials on record that neither any date of oral gift is given by the defendant nor any date of coming into possession of the defendant over the suit property on the basis of 'Hiba' has been given by the defendant. In the said circumstances apart from the question of genuineness, even the basic requirement a mohammedan gift i.e. possession and acceptance of gift having not been proved the said claim of the defendant, prima facie appears to be not legal and proper. On the other hand, the registered document followed by other exhibits of the plaintiffs including mutation, etc. as well as oral evidence fully proved the transfer of suit property by the said original owner in favour of the plaintiffs. In the said circumstances, it is incidentally held that the plaintiffs were the owners of the suit premises and the defendant's claim of title is absolutely frivolous.
8. So far the issue of relationship of landlord and tenant is concerned, the learned trial court considered and discussed all the evidence adduced by the parties in paragraph-7 to 12 of its judgment and thereafter came to the conclusion that there was relationship of landlord and tenant between the parties. Similarly the learned court of appeal below very carefully considered the said issue in paragraph-15 to 26 of its judgment and came to the finding that the possession of defendant in the suit premises was as of tenant and relationship between the plaintiffs and defendant was of landlord and tenant. It is quite apparent that the said finding had been arrived at after considering the evidence 4 of the plaintiffs which could not be disproved by any evidence of the defendant.
9. So far the question of default in payment of rent is concerned, both the learned courts below after considering the pleadings of the parties and the evidence on record both oral and documentary, came to the specific conclusion that the rent of the suit premises was Rs.200.00 per month and the defendant defaulted in payment of rent since April, 1985 and hence he had become a defaulter and was liable to be evicted on that ground and the arrears of rent were also to be recovered from him.
10. These findings are concurrent findings of fact based on valid consideration of evidence, both oral and documentary adduced on behalf of the parties and hence there is no occasion for this court to interfere under section 100 of the Code of Civil Procedure. In the said circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure.
harish/ ( S. N. Hussain, J. )