Jharkhand High Court
Bimal Rajak vs Parmila Devi on 11 September, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:27757
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 202 of 2017
Bimal Rajak, S/o Late Mahabir Rajak, R/o - Marar, Ranchi Road,
P.O. & P.S. - Ramgarh, District - Ramgarh
... ... Defendant/Appellant/Appellant
Versus
1. Parmila Devi, W/o Rajendra Prasad Sahu
2. Hira Lao Sao, S/o Rajendra Prasad Sahu
Both No.1 and 2 R/o - Marar, Ranchi Road, P.O. & P.S. -
Ramgarh, District - Ramgarh
... ... Plaintiffs/Respondents/Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. R. N. Sahay, Senior Advocate
: Mr. Kirtivardhan, Advocate
For the Respondents : Mr. A. K. Sahani, Advocate
: Mr. Ajit Kumar, Advocate
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CAV on 09.09.2025 Pronounced on 11.09.2025
1. This appeal has been filed against the judgment dated 17.02.2017 and decree dated 21.02.2017 passed in Eviction Title Appeal No.6 of 2014 by the learned District Judge-II, Ramgarh affirming the judgment dated 13.05.2014 (decree dated 21.05.2014) passed in Eviction Suit No.14 of 2008 by learned Civil Judge (Junior Division), Hazaribagh. The suit seeking eviction of the defendant was decreed and the learned 1st appellate court has affirmed the judgment. Consequently, the defendant (the alleged tenant), is under appeal before this Court.
2. This appeal was admitted for final hearing vide order dated 29.07.2021 by referring to the judgment passed by the Hon'ble Supreme Court reported in (2002) 1 SCC 90 (Rajendra Tiwary Vs. Basudeo Prasad and Another), and the following substantial questions of law were framed for consideration:
(i)Whether in a summary proceeding where the relationship of landlord and tenant is not admitted, the defendant/appellant/appellant can be evicted from a suit property?
(ii) Whether plaintiffs have to file suit for right, title, interest and recovery of possession before the appropriate forum?
Arguments of the appellant
3. The learned Senior counsel for the appellant, while assailing the judgments passed by both the learned courts, has submitted that the core issue involved in this case is as to whether there was landlord- tenant relationship in view of the Kirayanama which was exhibited as Exhibit-1. He submits that the alleged Kirayanama is dated 19.09.1984, which is unilaterally executed by the father of the defendant (whose signature was disputed) stating that he would pay Rs. 60/- per month as rent. He submits that the Kirayanama neither contains the details of the property which is given in tenancy nor it was signed by the plaintiffs nor any period of tenancy has been mentioned therein, nor the Kirayanama has been duly registered.
4. He submits that ex-facie the Kirayanama could not be said to be an agreement of tenancy and therefore, no reliance could have been placed by the learned courts on Kirayanama (Exhibit-1).
5. It is submitted that the Exhibit-1 was allegedly signed by Mahavir Rajak - the father of the defendant, but the defendant had disputed the signature of Mahavir Rajak over the Kirayanama but the plaintiffs did not take any steps to get the signature duly verified from any expert. He has also submitted that as per the Kirayanama, there were three witnesses and one of the three witnesses has been examined as P.W. 3. During cross-examination, P.W. 3 has stated that Kirayanama was also signed by plaintiff no.1, but admittedly, Exhibit- 1 does not contain the signature. He submits that this demolishes the veracity of the evidence of P.W. 3 but the learned courts have failed to consider this aspect of the matter and thus the findings of the learned courts are perverse. The learned Senior counsel has submitted that the Kirayanama has not been duly proved and hence there is no relationship of landlord and tenant between the parties.
6. The learned Senior counsel for the appellant has further referred to Sections 106 and 107 of the Transfer of Property Act and submitted that the Kirayanama was required to be signed by both the parties and 2 in absence of signature of plaintiff no.1, the unilateral act of the father of the defendant could not be taken into consideration and this submission is without prejudice to the submission that the signature was not the signature of the father of the defendant on the alleged Kirayanama (exhibit-1).
7. The learned Senior counsel has relied upon the judgment passed by Hon'ble Patna High Court reported in 1974 SCC OnLine Patna 37 (Garaj Narain Singh Vs. Babulal Khemka) and referred to paragraph 11 thereof to submit that in the said case, there was a unilateral deed of lease which was exhibit-5 and it was held to be invalid and it was held that the deed being a registered document, it was imperative for both the parties to have signed it in order to create a valid lease under Section 107 of the Transfer of Property Act.
8. The learned Senior counsel has then referred to the judgment passed by the Hon'ble Supreme Court reported in 2023 SCC OnLine 1216 (Paul Rubber Industries Private Limited Vs. Amit Chand Mitra and Another) (paragraph 15) and has submitted that the unregistered document can be used for collateral purpose, but when the very nature and character of possession is in dispute, the said Kirayanama could not have been taken into consideration being an unregistered document.
9. The learned Senior counsel then referred to the judgment passed by the Hon'ble Supreme Court reported in (2002) 1 SCC 90 (Rajendra Tiwary Vs. Basudeo Prasad and Another) and submitted that it has been held that the very existence of landlord-tenant relationship is the foundation for an eviction petition under the Rent Control Statute and when the relationship is not found to be established, any further enquiry into the title is beyond the scope of the court exercising jurisdiction under the statute. He has also submitted that under the Rent Control Act, the Court exercises limited jurisdiction to try suit specified in the rent statute and considering the facts of this case, the plaintiffs are certainly free to institute a suit for declaration of their title and for recovery of possession, but in a case 3 where the landlord-tenant relationship is in dispute, the Rent Control Act seeking eviction is not applicable.
Arguments of the respondents.
10. The learned counsel for the respondents, on the other hand, while opposing the prayer has referred to paragraph 16 of the appellate court's judgement and submitted that under Section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, the learned court had directed the defendant to deposit the fair rent decided by Sub- Divisional Officer as House Rent Controller, but the defendant did not abide by the order of the learned trial court and ultimately his defense on the point of eviction as tenant was directed to be struck off by order the dated 29.11.2010 by observing that the defendant will not cross- examine the plaintiffs witnesses on the point of eviction. The learned counsel submits that the order of the rent controller was Exhibit 2/B and the appellate authority dismissed the appeal vide Exhibit 2/A and those orders have become final. The learned courts have also taken into consideration the aforesaid Exhibits 2/A and 2/B while deciding the case.
11. The learned counsel has also submitted that when a suit is filed under the special statute of rent control, there is no absolute bar on the part of the trial court to enter into the issue of title, even in a summary proceeding, in order to ascertain as to whether there is relationship of landlord and tenant between the parties. The learned counsel submits that merely because the title has been considered and finding has been arrived in order to come to the finding of landlord-tenant relationship, the same does not preclude either party to get their title declared through a regular suit.
12. The learned counsel has further submitted that the courts have discussed all the materials on record to come to a finding. He has also submitted that in the proceedings before the rent controller, the defendant had claimed that they were in possession of the property by virtue of a gift by the vendor's vendor of the property in 1942 and before the learned trial court in the present case, they claimed that they were in permissive possession for last 70 years.
413. The learned counsel has also submitted that the defendant claimed that they were in possession of the property since 1942 but the plaintiffs had purchased the suit property by Exhibits 3, 3/A and 3/C which are dated 22.02.1956, 22.07.1956 and 22.01.1957 and at no point of time, the sale deeds of the plaintiffs was challenged by the defendant.
14. The learned counsel has submitted that so far as the allegation that Exhibit 1 i.e. the kirayanama was not signed by the father of the defendant is concerned, it was for the defendant to take steps for getting the signature duly examined. He has submitted that if the defendant disputed the signature, it was for them to bring on record the admitted signature and take steps for getting the same examined through handwriting expert but no such steps were taken from the side of the defendant. The learned counsel has submitted that the consequence of non-registration of Exhibit 1 i.e. the kirayanama has also been considered by the court and the court has relied upon all the other materials on record also to come to a finding of landlord-tenant relationship.
15. The learned counsel has referred to the judgement passed by this Court reported in (2006) 3 JLJR 69 (Sri Suresh Singh & Anr. Vs. Srimati Arti Choubey & Anr.) to submit that it is open to the trial court to incidentally enter into the question of title with respect to the suit property. The learned counsel has submitted that the courts have given concurrent findings that the defendant has failed to place any material on record to show permissive possession over the property. He has submitted that both the courts have scrutinized the materials on record and have come to a definite finding that there was landlord- tenant relationship between the parties. He has submitted that merely because the landlord-tenant relationship between the parties is not admitted, the same cannot be a reason not to entertain a proceeding under the Building Control Act and the court has to see the prima facie title to come to a conclusion as to whether there exists any landlord-tenant relationship. The learned counsel has submitted that 5 accordingly, the 1st substantial question of law is fit to be answered against the appellant.
16. With respect to 2nd substantial question of law, he has submitted that the final adjudication of right, title and interest with respect to the property can certainly take place in regular suit and such a suit can be filed either by the plaintiffs or the defendant.
Rejoinder argument of the appellant
17. The learned counsel for the appellant has referred to Section 101 of the Evidence Act to submit that the burden of proof was upon the plaintiffs to prove the kirayanama (Exhibit 1) and also the signature of the father of the appellant and therefore it was for the plaintiffs to take steps to prove the signature of the father of the defendant. The learned counsel has also submitted that it has come in the evidence of the defendant that this kirayanama was filed in the rent fixation case and it came to light for the first time in 2006 and therefore the orders by the Sub-divisional officer with respect to the payment of fair rent were fraudulently obtained by the plaintiffs. Findings of this Court
18. As per the plaint, the plaintiffs claimed to be the owner/landlord of a khapraposh situated over plot no.986 appertaining to khata no.17 of village Marar within P.S. and District Ramgarh, consisting of two rooms and one open verandah. Plaintiff no.1 had instituted a Partition Suit No.57 of 1993 of various joint family property, which ended in a compromise and the present suit premises were allotted to plaintiff no.1 and his children.
19. The case of the plaintiffs was that plaintiff no.1 had inducted the father of the defendant as tenant on monthly rent of Rs.60/- and in token thereof, the defendant executed a kirayanama dated 19.09.1984 on a plain paper and agreed to pay rent to plaintiff no.1 and the father of the defendant paid rent @ Rs.60/- per month against grant of hathchitta. The defendant stepped into the shoes of his father upon his demise and occupied the suit premises and continued to pay rent to the plaintiffs till the month of November 1999 and thereafter he stopped making payment of rent.
620. The rent of the suit premises was very low, and therefore, a petition for fixation of fair rent was filed before the house rent controller and was registered as House Controller Case No.02 of 2006 but in the said petition, the plot number of the suit premises was wrongly mentioned as plot no.985 instead of plot no.986 due to mistake and inadvertence and in fact plot no.985 also belonged to the plaintiffs. Further case was that the defendant filed his show cause in the said case and admitted the existence of house over the plot no.986 but denied the relationship of landlord and tenant and asserted his independent title. The rent was determined and fixed at Rs.500/- per month vide order dated 07.12.2007 which was affirmed in Rent Controller Appeal No.11 of 2008 and became final. It was further case of the plaintiffs that since defendant no.1 defaulted in making payment of rent for more than two months therefore, he was liable to be evicted. The plaintiffs also pleaded personal necessity and the suit was filed seeking eviction on the ground of default in payment of rent.
21. The defendant filed his written statement denying the statements made in the plaint and took a plea that the suit itself was not maintainable and the real controversy between the parties was with respect to title and possession over the suit land for which the plaintiffs should have filed a regular suit with a prayer for recovery of possession and also asserted that the plaintiffs have no right, title and interest in the suit premises.
22. The defendant denied relationship of landlord and tenant between the plaintiffs and the defendant or his father and stated that the plaintiff no.1 neither inducted the father of the defendant in the suit premises as tenant at the monthly rent of Rs.60/- nor his father has executed any kirayanama on 19.09.1984 in favour of the plaintiffs nor paid any rent to her. As per the defendant, the real fact is that the father of the defendant had constructed a kuccha house over 02 decimals of land over plot no.986 & 983 with the permission of Sheopujan Singh about 70 years ago, who was the owner of plot no.986 measuring an area of 0.16 acres out of 0.32 acre. The father of the defendant used to wash clothes of the family member of 7 Sheopujan Singh, who permitted the father of the defendant to construct a kuccha house over 2 decimals of land of plot no.986 and 983 about 70 years ago. On this ground, the defendant completely denied the relationship of landlord and tenant; the terms of compromise in Partition Suit No.57 of 1993 were not binding upon the defendant and the said suit was collusive one and that the plaintiffs neither have any right to extend their residential house over the Schedule A land nor they had any personal necessity as alleged in the plaint and urged that the suit be dismissed.
23. The learned trial court framed the following issues for consideration:
"I. Is the suit maintainable in its present form? II. Have the plaintiffs got valid cause of action for the suit? III. Whether the suit is barred by law of Limitation, waiver and acquiescence?
IV. Is there relationship of landlord and tenant between the plaintiffs and defendant?
V. Whether the defendant has defaulted in making payment of rent?
VI. Whether the plaintiffs have personal necessity of the suit premises bonafidly for their own use and occupation? VII. Whether the personal necessity of the plaintiffs can be satisfied by evicting the defendant from part of the suit premises?
VIII. Whether the plaintiff is entitled to get the reliefs as sought?"
24. The learned trial court held that there is relationship of landlord and tenant between the parties in respect of the suit premises and also held that the defendant has defaulted in making payment of rent for more than 2 years since November 1999 and that the suit premises were bonafidely required by the plaintiffs for personal necessity. The possibility of partial eviction was also declined. The learned trial court decided issue nos.III, V, VI and VII and decreed the suit on contest and directed the defendant to deliver vacant possession of the suit premises to the plaintiffs and also directed the defendant to make payment of rent of the suit premises at Rs.500/- per month from the date of institution of the suit till actual delivery.
825. The records of the case also reveal that a petition under Section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, was filed in which a direction was issued for payment of rent of Rs.500/- per month by the 15th day of following month but the defendant did not comply with the said order. As a result, vide order dated 29.11.2010 his defence was struck off on the point of eviction as tenant with an order that the defendant would not cross-examine the plaintiffs witnesses on the point of eviction.
26. The learned 1st appellate court framed the following points for consideration: -
"I. Whether the suit was maintainable as framed? II. Whether the plaintiffs have valid cause of action to bring the suit?
III. Whether there is any relationship of landlord and tenant in respect of the suit premises in between the plaintiffs and defendant?
IV. Whether the defendant has defaulted in making payment of rent for more than two months in respect of the suit premises? V. Whether the plaintiffs have personal necessity of the suit premises bonafidely for their own use and occupation? VI. Whether the personal necessities of the plaintiffs can be satisfied by evicting the defendant from part of the suit premises?
VII. Whether the plaintiffs were entitled for a decree as prayed for?"
27. The learned 1st appellate court first upon took up the issue no.III (which was corresponding to issue no. IV of the learned trial court) as to whether there is relationship of landlord and tenant between the plaintiffs and the defendant with respect to the suit property and recorded its finding from paragraph 18 onwards and the court held that there is relationship of landlord and tenant between the parties and the issue was decided against the defendant. The point of default in payment of rent and personal necessity were also decided against the defendant and also considered that the defence of the defendant against eviction was struck off by the trial court. The appeal was dismissed.
928. Considering the substantial question of law, the nature of dispute is now confined to the issue no.IV of trial court and corresponding point no III of the learned 1st appellate court.
29. Issue no.IV was taken as the core issue by the learned trial court as to whether there is a relationship of landlord and tenant between the plaintiffs and the defendant.
30. The learned trial court discussed the point regarding the ownership of the property under a sub-head and observed that it is settled legal position that when the title and ownership is challenged by the tenant in an eviction suit, the court trying the suit is empowered to consider incidentally title and ownership of the land in question in order to come to a right conclusion with regard to existence of tenancy. In the light of said principle of law, the learned trial court examined as to whether the plaintiffs were the owners of the suit premises. The learned court thereafter considered the oral evidences of the plaintiffs and also the documentary evidence i.e. Exhibits 3, 3/A and 3/C whereby the plaintiffs/their predecessor in interest had purchased the suit property total 32 decimals in plot no.986.
31. The plaintiffs also filed the rent receipts and also the compromise decree passed in Title Appeal No.21 of 1998 whereby half portion of plot no.986 i.e. 16 decimals running east to west including one pucca and tin shed khapraposh house was allocated to the plaintiffs of this suit. The decree was passed in Partition Suit No.57 of 1993 and the appeal ended in a compromise. The plea raised by the defendant that the compromise was collusive was also rejected. The learned trial court also recorded that the partition suit was highly contested, and therefore, the compromise decree could not be said to be collusive and on that basis, the learned court recorded that the plaintiffs had got sufficient and reliable evidence on record to prove their ownership over 16 decimals of the suit plot including the suit premises.
32. Thereafter, the learned trial court considered the point regarding existence of tenancy under a sub-head. The plaintiffs had examined 4 witnesses and also exhibited kirayanama of the year 1984. P.W. 3 in 10 his chief had claimed that kirayanama was executed by the father of the defendant which was signed by him in his presence and P.W. 3 is the witness to the kirayanama and that he had proved his signature on the kirayanama as a witness and P.Ws. 2, 3 and 4 had also deposed that the defendant after the death of his father paid rent till the month of November 1999 and a token thereof hathchitha was being issued by plaintiff no.1. The learned trial court also recorded that it was submitted by the defendant that the kirayanama was forged and fabricated and was not executed by father of the defendant and that is a unilateral document as it does not contain the signature of the plaintiffs. The learned trial court rejected the said submissions that the kirayanama was forged by observing that the defendant had not produced any material to show that kirayanama was forged and fabricated and was not executed by Mahavir Rajak (father of the defendant) and on the other hand P.W. 3 was a witness to the execution of the kirayanama. The trial court recorded that it is true that Exhibit - 1 is a unilateral document and does not bear the signature of the plaintiffs and it has not been executed in the common form of kirayanama but was of the view that the same did not affect the sanctity of Exhibit - 1. The learned trial court also recorded that even if Exhibit - 1 is not considered as a document of tenancy, it can certainly be looked as a document which contained admission of defendant's father to the effect that he had taken the suit premises from plaintiff no.1 at the monthly rental of Rs.60/- per month and such admission of the defendant was enough to prove existence of tenancy between the plaintiffs and the defendant.
33. The learned court further examined the other materials on record including the order passed by the Sub-Divisional Officer, Ramgarh in Case No.2 of 2006 dated 07.12.2007 whereby fair rent was determined of the suit premises @ Rs.500/- per month and the appeal against the same was also dismissed vide order dated 22.06.2008 vide BBC Appeal No.11 of 2008 (Exhibit 2/A). The submission of the defendant in connection with Exhibit 2/A and 2/B was also considered by the learned trial court whereas the defendant 11 submitted that the determination of fair rent of the house was on plot no.985 whereas the present suit property is situated over plot no.986. With respect to this submission, the plaintiffs had stated that due to inadvertence, the plot number over the suit premises was wrongly mentioned as 985 in place of 986 in the petition which was filed before SDO and further in that proceeding, the defendant had admitted that the suit premises does not exist over 985, rather it exists over plot no.986 and that it was not the case of the defendant that there is another house in plot no.985 and consequently held that there was no dispute regarding location and identity of the suit premises. The learned trial court considered the submission of both the sides in connection with Exhibit 2/A and 2/B and observed that in the said proceeding, the defendant himself admitted that there was no house in plot no.985, rather the case was instituted for house situated over plot no.986 and ultimately held that there was no doubt that the fair rent was determined with respect to the suit premises and being the tenant the defendant was directed to pay rent of the suit premises @ Rs.500/- per month.
34. Thereafter, the learned trial court considered the case of the defendant, who claimed to be in permissive possession of the suit property for last 70 years. The learned trial court considered the evidence of the defendant and recorded that the defendant had filed certified copy of sale deed dated 21.03.1939 executed by Galu Mahto and another in favour of Sheopujan Singh and Satyanarayan Mahto (Exhibit 2/B) through which 16 decimals of land out of 32 decimal of plot no.986 was transferred. It appeared to the court that the defendant had filed Exhibit 2/B to show that Sheopujan Singh was the owner of 16 decimals of plot no.986. The court observed that save and except oral evidences, there was no other evidence on record to show that Sheopujan Singh had given two decimals of land out of 16 decimals of his purchased land of plot no.986 to the father of the defendant 70 years ago. The court was of the view that the oral evidences were not reliable and trustworthy and considered the contradictions of the evidence produced on behalf of the defendant and rejected the plea of 12 permissive possession as raised by the defendant. The learned trial court recorded that D.W. 3 had given different statements on different occasions. D.W. 3 the defendant, had filed appeal in the court of Deputy Commissioner against the order of the SDO and in the memo of appeal Exhibit 5, he claimed that the suit premises was orally gifted by ex-raiyat of the land namely Dayali Sao to his father about 50 years back whereas in the present case, the defendant claimed that the suit land was given by Sheopujan Singh to his father 70 years back. With respect to the witness P.W. 2 who claims to be the descendant of the recorded tenant of plot no.986, it was observed that in examination-in-chief, he has said that 2 decimals of land of plot no.986 was given by Sheopujan Singh to the father of the defendant but in cross-examination, he had given a different statement and deposed that his father Jagmohan Sao had given the land to Mahavir Rajak [the father of the defendant] 40 to 45 years ago. The learned trial court was of a definite view that the defendant failed to produce reliable evidence to prove that Sheopujan Singh had given two decimals of land of plot no.986 to his father over which he had constructed a khapraposh house and also that he is not in possession of the suit premises as tenant of the plaintiffs.
35. The learned court ultimately after scrutinizing all the materials on record and after considering each and every argument advanced on behalf of the respective parties came to the conclusion that there was landlord-tenant relationship between the parties.
36. The learned 1st appellate court decided the point regarding landlord-tenant relationship as Point no.III vide paragraph 17 onwards after recording that the defence of the defendant was struck off on the point of eviction as tenant by the learned trial court. The learned 1 st appellate court also considered kirayanama (Exhibit 1) and recorded that from perusal of Exhibit 1, it appeared that it was a document executed by the father of the defendant on 19.09.1984 in the presence of the witnesses namely Nageshwar Sahu, Md. Khalil Khan, Laldhari Ram (P.W-3), Jagmohan Sharma, Dholan Choudhary and Prabhu Prasad Sao admitting and agreeing (undertaking) therein that 13 defendant had taken the suit premises from Pramila Devi, wife of Rajendra Prasad Sahu (plaintiff no.1) at monthly rent of Rs.60/- per month and would vacate as an when asked for.
37. The learned court also considered the Exhibit 2/A and 2/B and ultimately held that Exhibit 2/A and 2/B was in relation to determination of fair rent with respect to the suit premises wherein the defendant was directed to pay the rent of the suit premises @ Rs.500/- per month to the plaintiffs but the defendant refused to pay. The learned 1st appellate court also considered the arguments that the kirayanama Exhibit 1 did not bear the signature of the plaintiffs and allegation that it was forged and fabricated document and also the fact that it was unregistered document. The learned 1 st appellate court was of the view that the unregistered document is admissible for collateral purpose i.e. to determine the question of nature of possession of the parties and held that Exhibit - 1 could be safely relied upon with regard to creation of tenancy with respect to the suit premises between the plaintiffs and the defendant.
38. The learned 1st appellate court also considered the claim of the defendant that the plaintiffs were not the owner and landlord of the suit premises and after discussing the material on record, the learned court held that the plaintiffs were claiming the property by virtue of registered sale deeds and also decree passed in partition suit which ended in a compromise on contest and also took into consideration the conflicting stand of the defendant wherein the defendant had claimed that the property was given as gift to him by Dayali Mahto, in the proceeding before the rent controller and a completely different stand was taken in the present case wherein he claimed that he was in permissive possession of Sheopujan Singh for about 70 years. The learned court ultimately recorded that it could be safely held that the stand taken by the defendant claiming to be the owner of the suit premises was contradictory and the same was not acceptable and ultimately held that in view of the discussions, there was enough evidence on record and it could be safely held that there was a 14 relationship of landlord and tenant between the plaintiffs and the defendant.
39. The learned 1st appellate court while considering the point no.IV considered the evidence of P.Ws. 1, 2 and 4 who have stated that the defendant had made payment of rent to the plaintiff no.1 till November 1999 and thereafter stopped payment. The learned court observed that these witnesses have already been cross-examined and nothing was brought on record from these witnesses to disbelieve their evidence on the point. The court also took into consideration that the defence of the defendant on the point of eviction as a tenant was directed to be struck off and ultimately held that the defendant had defaulted in making payment of rent for more than 2 months and decided the issue accordingly. The point of personal necessity was also decided in favour of the plaintiffs. The plea of partial eviction was also rejected and ultimately the judgement of the learned trial court was upheld.
40. This Court finds that both the learned courts have meticulously considered the materials on record to arrive at a concurrent finding regarding the relationship of landlord and tenant between the parties after considering every aspect of the matter.
41. The argument of the learned counsel for the appellant before this Court in 2nd appeal that in cross-examination P.W. 3 had stated that the plaintiff no.1 had also put his signature has no much bearing considering the nature and scope of the substantial questions of law framed by this Court and the materials placed on record and that it was never the case of the plaintiffs that the plaintiffs had put signature on the kirayanama and the learned courts have also recorded that the plaintiffs had not signed the kirayanama. With respect to kirayanama the learned trial court recorded that even if kirayanama (Exhibit - 1) is not considered as a document of tenancy, it can certainly be looked as a document which contained admission of defendant's father to the effect that he had taken the suit premises from plaintiff no.1 at the monthly rental of Rs.60/- per month and such admission of the defendant was enough to prove existence of tenancy between the 15 plaintiffs and the defendant and the learned 1st appellate court was of the view that that the unregistered document is admissible for collateral purpose i.e to determine the question of nature of possession of the parties and held that Exhibit - 1 could be safely relied upon with regard to creation of tenancy with respect to the suit premises between the plaintiffs and the defendant. Otherwise also the evidence of P.W-3 has to be taken as a whole. P.W. 3 had also deposed that he had put his signature as witness in the kirayanama and the learned courts have considered that the plaintiffs had not signed the kirayanama and it was never the case of the plaintiffs that the kirayanama was also signed by the plaintiffs. The kirayanama (Exhibit-1) has been relied upon by both the courts for collateral purpose and no substantial question of law has been framed with respect to this aspect of the matter. In view of the aforesaid fact, the two judgements [1974 SCC OnLine Patna 37 (Garaj Narain Singh Vs. Babulal Khemka) and 2023 SCC OnLine 1216 (Paul Rubber Industries Private Limited Vs. Amit Chand Mitra and Another)] citied by the learned counsel for the appellant challenging the reliance put by the learned courts upon the kirayanama (Exhibit-1) being unregistered document/unilateral document has no relevance when seen in the light of the substantial questions of law framed by this court in this 2nd appeal. The law is well settled that the courts have to confine themselves to answer the substantial questions of law in 2nd appeal.
42. Moreover, there are other materials also which are independent of kirayanama (Exhibit-1) to prove the fact that the defendant paid the rent till November 1999. The courts have recorded that P.Ws. 1, 2 and 4 have deposed that rent was being paid by the defendant to the plaintiffs till November 1999 and in absence of proper cross- examination on this point, the learned courts have believed the statement of P.Ws. 1, 2 and 4 and recorded a specific finding that the defendant defaulted in payment of rent after November 1999. The argument of the appellant before this Court that none of the hathchittha in connection with payment of rent has been produced by the plaintiffs to prove that they received rent from defendant has no 16 bearing in the matter in view of the fact that the case of the plaintiffs was that hathchittha was issued by the plaintiffs to the defendant and therefore the question of its production from the side of the plaintiffs does not arrive. This Court also finds that the nature of possession, that is, permissive possession, sought to be set up by the defendant could not be proved by the defendant at all. The learned courts have recorded that the defendant has been taking conflicting stand from one forum and the oral evidence of the defendant with respect to his nature of possession was also considered by the courts and the courts found the evidence was contradictory on material aspects and not reliable. This aspect of the matter has been fully recorded above. This Court is of the considered view that there is no scope for reappreciation of the materials on record considering the scope of the substantial questions of law as framed by this Court.
43. The 1st substantial question of law is essentially on the point as to whether the suit for eviction under BBC Act (rent control act) would be maintainable where relationship of land lord and tenant is not admitted by the defendant and the 2nd substantial question of law is whether the proper remedy would be to file a regular suit seeking declaration of right title and interest over the property and claim recovery of possession before appropriate forum.
44. The 1st substantial question of law has been framed by this Court upon a reference of the judgement passed by Hon'ble Supreme Court in the case Rajendra Tiwary (supra) which has also been relied upon by the learned counsel for the appellant during the course of arguments.
45. In the case of Rajendra Tiwary (supra), the trial court had dismissed the suit for eviction by holding that there was no relationship of landlord and tenant between the parties and the learned 1st appellate court affirmed the judgment. The High Court in second appeal remanded the case to the 1st appellate court as it had not recorded any finding on the question of title. The defendant was in appeal before the Hon'ble Supreme Court and it was contended by the defendant that rent controller exercised limited jurisdiction as defined 17 by the Rent Control Act could not go into the question of title. The Hon'ble Supreme Court held that the sine qua non for granting relief in the suit under the Rent Control Act was the existence of relationship of landlord and tenant and the scope of enquiry was limited to the question as to whether the ground for eviction was made out. It has been held that the question of title of the parties to the suit premises is not relevant considering the wide definition of the term landlord and tenant. The Hon'ble Supreme Court further held that both the trial court as well as the 1st appellate court found that the relationship of landlord and tenant did not exist, therefore, further inquiry into the title of the parties having regard to the nature of suit and jurisdiction of the court under Rent Control Act was unwarranted. This Court is of the considered view that the said judgment of Rajendra Tiwary (supra) has no applicability to the present case in view of the fact that in the said case, both courts held that there was no relationship of landlord and tenant which was essentially a finding of fact and there was no scope for the second appellate court to remand the matter for recording a finding on the question of title considering the limited jurisdiction of the court under Rent Control Act.
46. In the judgment passed by the Hon'ble Supreme Court reported in Shamim Akhtar v. Iqbal Ahmad, (2000) 8 SCC 123, it has been held that the question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent court. It has been held that in such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Cause Court to determine finally the title to the property. The tenant by merely denying the relationship of landlord and tenant could not avoid the eviction proceeding under the Rent Control Act. This Court while considering the aforesaid decision of Shamim Akhtar v. Iqbal Ahmad (supra) is of the view that there is no doubt that in a suit for eviction under the Rent Control Act, title can be gone into only as an incidental question and final determination is to be left for title suit 18 dealing with the title of the property. There is no complete bar in going into the question of title incidentally to determine the relationship of landlord and tenant even when there is denial of relationship of land lord and tenant by the defendant.
47. This Court is of the considered view that the judgment passed by the Hon'ble Supreme Court in the case of Shamim Akhtar v. Iqbal Ahmad, (2000) 8 SCC 123 is fully applicable to the 1st substantial question of law and it is held that in the present case, the learned courts have committed no illegality in incidentally entering into the issue of title to record a finding of landlord-tenant relationship even when the defendant disputed the relationship of landlord and tenant.
48. This Court finds that the learned trial court while entering into the dispute regarding question of title has referred to the legal position with regard to the scope of its consideration and in paragraph 8 itself the learned trial court recorded that it is settled legal position that when the title and ownership is challenged by the tenant in eviction suit, the court trying the suit is empowered to consider incidentally the title and ownership of the land in question in order to give right conclusion with regard to existence of tenancy. This Court is of the view that exactly aforesaid exercise has been undertaken by the learned trial court and also by the learned 1st appellate court.
49. Accordingly, the substantial question of law no.(i) is answered by holding that in a summary proceeding where the relationship of landlord and tenant is not admitted, the court is certainly empowered to consider the title and ownership of the land in question incidentally in order to give a right conclusion with regard to existence of landlord-tenant relationship which has been exactly done in the present case. However, it is certainly open to the parties to get their right, title and interest declared with respect to the suit property from the competent court of law. Accordingly, the substantial question of law no.(ii) is also answered by holding that either of the party, the plaintiffs or the defendant, can certainly file a suit for declaration of the right, title and interest over the suit property if so, required as may be permissible under law. But the suit for recovery of possession on 19 the ground of default/personal necessity under the Rent Control Act was certainly maintainable in view of the answer to the 1 st substantial question of law.
50. Having answered both the substantial questions of law against the appellant (tenant) and in favour of the respondents (landlord) in the aforesaid manner, this 2nd appeal is dismissed.
51. Interim order dated 29.07.2021 stands vacated.
52. Let a copy of this judgement be forwarded to the court concerned through e-mail/FAX.
(Anubha Rawat Choudhary, J.) Saurav/-
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