Patna High Court
Sholey Mandal @ Sholba Mandal vs Smt. Rekha Devi on 18 June, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.690 of 2010
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Sholey Mandal @ Sholba Mandal, Son of Late Bhaso Mandal, Resident of village-
Farda, P.S.-Naya Ram Nagar, District- Munger at present residing at Mohalla-
Mohaddipur, P.S.-Kasim Bazar,(Kotwali)P.O. & District-Munger.
Defendatn/Petitioner.... .... Petitioner/s
Versus
Smt. Rekha Devi, Wife of Laxman Mahto, Resident of Mohalla-Mohaddipur, P.S.-
Kasim Bazar,(Kotwali)P.O. & District-Munger-Plaintiff/Opposite Party.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. NIRMAL KUMAR SINHA-3
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
CAV JUDGMENT
Date: 18-06-2012
V.Nath, J.Heard the learned counsels for the parties.
2. The present revision application has been filed under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1992 (hereinafter referred to as Act) against the decree and order of eviction passed by Munsif II, Munger in Eviction Suit No. 11/03 against the defendant-petitioner.
3. The plaintiff-opposite party has filed the Eviction Suit No. 11/03 praying for eviction of the defendant-petitioner from the suit premises on the ground of personal necessity alone. The necessitous facts required to be adumbrated here is that the plaintiff has let out the suit premises to the defendant at a monthly rent of Rs. 20/- in the month of December, 1990 The said monthly rent was enhanced to Rs. 50/- from the month of February, 2000. The residential house of the 2 2/8 plaintiff is situated in the same plot alongwith the suit premises and there is only one courtyard which is commonly used by both the plaintiff and defendant. The three sons of the plaintiff has attained majority and two of them are to be married soon and hence the plaintiff requires the suit premises for her own use in order to accommodate her family members. The refusal by the defendant to vacate the suit premises has led the plaintiff to file the suit under the provisions of Section 14 of the Act.
4. The defendant contested the claim of the plaintiff mainly on the ground that there is no relationship of landlord and tenant in between the plaintiff and the defendant. The defendant denied the ownership of the plaintiff over the suit premises and claimed his own independent right to reside in the same. The payment of any rent at the rate of Rs. 20/- or Rs. 50/- has also been specifically denied by the defendant. By giving the genealogy in detail, it is the case of the defendant that after the death of the original owner of the suit house namely Darshan Dhanuk, it was inherited by his two sons namely Bhupal Dhanuk and Manu Dhanuk. The defendant has claimed his right in the suit property as heir and descendant of Dhanshi Devi who was one of the daughters of Bhupal Dhanuk. It is the case of the defendant that the two sons of Bhupal Dhanuk sold their share in favour to Manu Mandal who was son of another sister Jaya Devi and 3 3/8 the said Jaya Devi had also gifted her share to the said Manu Mandal and the remaining portion of the share of Bhupal Dhanuk has been inherited by the defendant who is in possession of the same as such. It has also been stated in the written statement that the plaintiff belongs to the branch of Munna Dhanuk and is wife of the grand son of Munnna Dhanuk. The defendant has asserted that he has also acquired title by way of adverse possession over the suit premises and the present suit has been filed only to create evidence of title over the suit premises by the plaintiff.
5. In view of the rival submissions of the parties, the court below has framed issues regarding personal necessity of the plaintiff and the existence of relationship of landlord and tenant in between the plaintiff and defendant. The learned court below has come to the finding that there exists relationship of landlord and tenant in between the plaintiff and defendant and the plaintiff has also got bonafide personal necessity of the suit house and accordingly decreed the suit and passed the order of eviction.
6. The learned counsel for the petitioner has submitted that there is absolutely no evidence to show that there existed the relationship of landlord and tenant in between the plaintiff and defendant and the finding of the court below in this regard is entirely without any basis. Placing the pleadings of the parties, the learned 4 4/8 counsel has pointed out that there is no pleading at all that the defendant has paid any rent to the plaintiff and no rent receipt has also been filed by the plaintiff in order to establish the said relationship. It has been urged by the learned counsel that the learned court below has wrongly relied upon the oral evidence alone led by the plaintiff to record the finding against the defendant ignoring the oral evidence of the defendant which is otherwise. It has been contended by the learned counsel for the petitioner that the defendant has never been the tenant of the defendant and he has been in possession over the suit premises in his own right as owner thereof on the basis of inheritance.
7. It is well settled that the existence of relationship of landlord and tenant between the plaintiff and defendant is a sine qua non to the jurisdiction of the Court to pass an eviction decree on the grounds mentioned in Section 11 of the Act. The perusal of the averments made in the plaint reveals total absence of the statement by the plaintiff regarding the payment of rent by the defendant at any point of time although it is the case of the plaintiff that the defendant has been inducted as tenant in the year 1990 itself. The plaintiff has though averred the creation of tenancy in favour of the defendant with regard to the suit premises and also the enhancement of rent from Rs. 20 to Rs. 50/- but it has nowhere been stated that the defendant ever paid the rent to the plaintiff or the plaintiff realized the same from the 5 5/8 defendant and granted the rent receipts.
8. The question that emanates is whether in absence of any pleading regarding the payment of rent, the seminal issue of relationship of landlord and tenant can still be determined on the basis of oral evidence. Scanning the deposition of the plaintiff, who has been examined in the suit as P.W. 5, shows that there is no denial of the fact stated by the defendant regarding his inheritance. The plaintiff has also not denied that she belongs to the branch of one of the two sons of original owner Darshan Dhanuk and the defendant belongs to the branch of another son. The plaintiff has also not denied the case of inheritance as pleaded by the defendant and has put stress only upon her purchase of the suit premises from the son of her husband's brother. Surprisingly the other witnesses examined on behalf of the plaintiff have also not denied the case of inheritance as claimed by the defendant and the right of the defendant over the suit premises on that basis. The learned court below has also ignored the defence of the defendant in this regard entirely and has not even examined the evidence from that point of view. It is well settled that even in an eviction suit when the defendant tenant denies the relationship of landlord and tenant with the plaintiff and sets up a title unto himself, the court is obliged to examine and determine the said issue by going into the question of title incidentally in order to find out whether the 6 6/8 said plea of the defendant is frivolous and raised only for the purpose of contest.
9. From the impugned order it appears that the court below has placed reliance upon the depositions of the witnesses of the plaintiff who have come to depose that the defendant has been paying rent to the plaintiff. The court below has also relied upon the deposition of the plaintiff wherein she has stated that the defendant has stopped payment of rent since after the filing of the suit. In absence of the necessary pleading regarding the payment of rent or non- payment of rent, no amount of evidence in that regard could have been looked into and relied upon by the court below. The learned court below has also failed to take into notice that the sale deed, on the basis of which the plaintiff has claimed her title, has been executed by a cosharer only who has got only 1/6th share in the property of Darshan Dhanuk. The denial and absence of evidence from the side of the plaintiff regarding the want of title or any right in the property acquired by the defendant on the basis of his case of inheritance has not at all been examined by the learned court below. The conclusion arrived at by the learned court below regarding the relationship of landlord and tenant is clearly vitiated for non-consideration of the case of the defendant as pleaded in the written statement and also by relying upon the evidence which have no basis in the pleadings.
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10. The sequitur of the abovesaid discussions establishes that the judgment and decree for eviction passed by the learned court below is not in accordance with law. The learned counsel on behalf of the opposite party has submitted that the jurisdiction of the revisional court under Section 14(8) of the Act is very limited and no reappreciation of evidence can be ventured. The reliance has been placed upon the decisions reported in 1991 BLJ (1)408 and 1993(2)PLJR 127 in support of the said submission. The propositions of law laid down in the aforesaid decision are not in dispute. However, in view of the proviso to Section 14(8) of the Act, the impugned order can still be examined to find out that it has been passed "in accordance with law". Such an exercise does not involve reappreciation of evidence. It is apposite to refer to the observation of the Apex Court in the case of Chandrika Prasad Vs. Umal Kumar Verma (2002(1)SCC 531) which is as follows:
"...the High Court, however, is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law" and for that limited purpose may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable..."
11. It is, therefore, held that the impugned decree and order for eviction is not in accordance with law and is, accordingly, set aside. In 8 8/8 the result, the civil revision application is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(V. Nath, J) Patna High Court, Patna.
Dated the 18th June, 2012.
Nitesh/N.A.F.R.