Dismissed

Usha Devi and Ors. v. Radha Devi

Jharkhand HC8 May 2023SA/456/2015

Case brief

AI extract

What is this about?

This High Court of Jharkhand dismissed a second appeal challenging an eviction decree. The court upheld the first appellate court's finding that a landlord-tenant relationship existed because the tenant's father had admitted tenancy prior to the property transfer to the appellant. The court ruled that attornment is not necessary under the Transfer of Property Act and accepted non-payment of rent s

What did the court decide?

Second Appeal No. 456 of 2015 dismissed on contest. Judgment and decree of the first appellate court restored.

Usha Devi and Ors. Vs Radha Devi — Property and Title | Jharkhand HC (2023)

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Second Appeal No. 456 of 2015

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No.456 of 2015

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(Against the Judgment and decree dated 16.05.2015 passed by the learned Principal District Judge, Dhanbad in Title Appeal No. 134 of 2009)

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------

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Usha Devi, wife of late Budhu Saw

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Rajesh Sao, son of late Budhu Saw

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Dinesh Sao, son of late Budhu Saw

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Sabita Devi, daughter of late Budhu Saw

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Rajendra Sao, son of late Bholi Sao

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Satish Sao, son of late Bholi Sao

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Raju Sao, son of late Bholi Sao All residents of Lal Bazar, Jharia, P.O. and P.S. –Jharia, District – Dhanbad.

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.... .... …. Appellants

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Versus

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1(a). Krishna Prasad Sahu, H/o Late Radha Devi

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1(b) Bipin Kumar Sahu, S/o Late Radha Devi

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1(c) Sanjay Kumar Sahu, S/o Late Radha Devi

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1(d) Kanchan Kumari, D/o Late Radha Devi

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1(e) Anjani Sahu, D/o Late Radha Devi

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All resident of village –Amlapara, near Marwadi School, Jharia, P.O. & P.S. –Jharia, District –Dhanbad.

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... .... …. Respondents ------ For the Appellants : Mr. Jitendra Kumar Pasari, Advocate For the Respondents : Mr. Rohitashya Roy @ Rohit Roy, Advocate : Mr. Vibhor Mayank, Advocate

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PRESENT

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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2 This second appeal under Section 100 of Code of Civil

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Procedure has been preferred against the judgment and decree dated 16.05.2015 passed by the learned Principal District Judge, Dhanbad in Title Appeal No. 134 of 2009 by which the in a judgment of reversal,

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the learned first appellate court allowed the appeal on contest and set aside the judgment and decree passed by the learned trial court being

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the court of Munsif -1^st , Dhanbad in Title (Eviction) Suit No.59 of 2003

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Second Appeal No. 456 of 2015

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dated 13.07.2009 whereby and where under the learned trial court dismissed the suit of the plaintiff on contest filed with the prayer for eviction of the defendants from the tenanted suit premises under the provisions of Section 11 (1) (b) (c) & (d) of the Bihar Building (Lease, Rent & Eviction) Control Act.

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3 The case of the plaintiff in brief is that the plaintiff purchased the suit property vide registered sale deed from the original owner –Ram Mohan Agarwala. The father of the defendants was a monthly tenant in respect of the suit property on a monthly rental of Rs.20/- payable according to English Calendar month from the first week of next succeeding month to the vendor of the plaintiff namely Ram Mohan Agarwala. The previous landlord as well as the plaintiff informed the defendants about the purchase. The defendants duly acknowledged the information and accepted the plaintiff to be the landlord on the same terms and conditions after purchase. The defendants attorned to be the tenants of the plaintiff. As the defendants, in-spite of repeated requests and demand from the plaintiff did not pay the monthly rent, the plaintiff sent Advocate’s Notice firstly dated 13.02.1986 and subsequently on 29.07.1986 demanding payment of rent and to vacate the tenanted premises since the tenancy has stood terminated but since the defendants did not pay the rent to the plaintiff on and from December, 1985 onwards and rent for more than two months became due and the plaintiff required the premises for his personal necessity, the plaintiff through her husband requested the defendants to vacate the said Schedule –B

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premises which is a portion of the said Schedule A premises. Though the defendants first agreed to vacate the premises by 30.06.2003 and also agreed to pay the arrear rent but on 01.07.2003 refused to vacate the same. Hence, the plaintiff filed the suit for eviction of the defendants from the Schedule –B premises of the plaint, costs of the suit and other reliefs.

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4 The defendants in their joint written statement challenged the maintainability of the suit on various technical grounds. The defendants further pleaded that the plaintiff never purchased the Schedule –A land of the plaint from Ram Mohan Agarwala and the sale deed dated 20.11.1985 is a bogus and illegal document and without consideration. The defendants further pleaded that Ram Mohan Agarwala has no right, title and interest in the suit property and he never possessed the said property in any manner. The defendants further pleaded that neither the defendants nor the father of the defendants was/were monthly tenant under the said Ram Mohan Agarwala. The defendants denied that they ever accepted the plaintiff as their landlord and also denied the claim of attornment as made in the plaint by the plaintiff. The defendants denied that they ever received the two notices sent through advocate by the plaintiff and the defendant refused to vacate the suit premises. The defendants next pleaded that they have been in possession of the suit premises described in the Schedule –B of the plaint since the time of their father without payment of rent to anybody. The defendants next pleaded that they never agreed to vacate the suit premises. The defendants

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admitted that the plaintiff’s earlier suit was dismissed for default on 21.01.1994 and the Misc. Case was also dismissed for default. The defendants next pleaded that Gouri Shankar Sao, Ayodhya Prasad Sao and Shiba Prasad Sao were the joint owners of the premises described in Schedule –A of the plaint and the father of the defendants was monthly tenant under them on monthly rental of Rs.5/- and the father of the defendants paid the monthly rent to them up to the month of February, 1951. Thereafter, the suit premises was sold by the said Gouri Shankar Sao and his two brothers to the father of the defendants orally. The defendants have not been paying monthly rent since March, 1951 to anybody. The defendants further pleaded that Ram Mohan Agarwala never demanded nor ever realized monthly rent from the defendants. Since the month of March, 1951, the defendants are residing in the premises described in Schedule –B of the plaint without any interruption whatsoever from any corner and as such they have acquired their independent right, title and interest over the premises described in Schedule –B of the plaint by virtue of oral purchase and adverse possession continuously for more than twelve years to the knowledge of all concerned.

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5 On the basis of the rival pleadings of the parties, the following twelve issues were framed by the trial court which are as

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under:-

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I. Is the suit of the plaintiff maintainable?

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II. Is there any cause of action for the present suit?

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III. Is the suit barred by the principles of estoppel, waiver and acquiescence?

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IV. Is the suit barred by principles of res-judicata? V. Is the suit barred by the provisions of BBC Act?

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VI. Is there any relationship of landlords and tenant in between the plaintiff and the defendants?

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VII. Are the defendants defaulter for non-payment of monthly rent for more than two months and liable to be evicted?

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VIII. Whether the defendants have removed the wall in between the two rooms without the consent of the landlords and thereby violated the terms of tenancy?

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IX. Is the plaintiff entitled to the relief as claimed in the suit? X. Is the plaintiff entitled to any other relief or reliefs in the suit?

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XI. Whether the plaintiff requires the premises reasonably and in good faith for her own occupation or for the occupation of her sons?

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XII. Whether the partial eviction will satisfy the need and requirement of the landlord?

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6 In support of his case, the plaintiff examined four witnesses and proved the documents which have been marked Ext.1 to 7/a. The defendants on the other hand examined eight witnesses and proved the documents which have been marked Ext. A to D/2.

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7 The learned trial court first took up issue no.VI and after considering the evidence in the record came to the conclusion that since the property in question was mortgaged to Sri Ram Chandra Agarwala in the year 1951 and the said mortgage has not yet been redeemed and as the plaintiff could not establish that the defendants ever paid rent after 1951 either to Ram Chandra Agarwala or to Ram Mohan Agarwala or to the present plaintiff. Accordingly, the plaintiff has not been able to establish the relationship of landlord and tenant and decided the issue against the plaintiff. The learned trial court thereafter took up issue nos. I, II, III, IV, V, VII, VIII, IX, X, XI & XII together and in view of its finding in respect of issue no.VI observed

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that consideration of those issues will be an exercise of futility and went on to dismiss the suit.

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8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff preferred Title Appeal No.134 of 2009 before the Principal District Judge, Dhanbad which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

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9 The learned first appellate court made independent appreciation of the evidence in the record and first took up issue nos. VI & VII for consideration. The learned first appellate court considered that from Ext.1 which is the sale deed, it is established that the plaintiff had purchased the suit property from Ram Mohan Agarwala and in the Ext.1 itself, it has been mentioned that Ram Mohan Agarwala purchased the suit property from the original owner namely Bhagirathi Devi who is the widow of Late Ayodhya Prasad Sao and the defendants admit that their father was a tenant inter alia under Ayodhya Prasad Sao. The learned first appellate court also considered the Ext.2 series which are the MADA (Municipality) Tax Receipts standing in the name of the plaintiff, as also the Ext.3 which is the Malgujari (Land Revenue.) rent receipt and Ext.4 which is the power of attorney given by the plaintiff to her husband Krishna Prasad Sahu and also considered Ext.5 which is the carbon copy of advocate’s letter dated 08.08.1986, as also the Ext.5/a which is the carbon copy of another advocate’s letter dated 29.07.1986, as also Ext.6 which is the postal receipt and Ext.7 series which are the

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acknowledgements. From the oral and documentary evidence in the record, the learned first appellate court was satisfied that the plaintiff purchased the suit property from the original rightful owner and as the defendants have admitted being the tenants of the suit premises to Sahu brothers, hence the plaintiff has stepped into the shoes of the Sahu brothers by way of purchase and held that the tenancy between the plaintiff and the defendants has become a tenancy at will. The learned first appellate court did not accept the plea of adverse possession of the defendants in view of the admission of the defendants that their father was the tenant of Sahu Brothers –the original recorded owner who sold the land to Ram Mohan Agarwala and Ram Mohan Agarwala in turn, sold the land to the plaintiff. The learned first appellate court did not accept the plea of the defendant that their father orally purchased the suit premises from the Sahu Brothers, in view of the bar of such transfer under Section 17 of the Indian Registration Act, 1908 and went on to hold that the relationship of tenant and landlord exists between the parties and as the defendants admitted that they have not paid any rent since 1951, the learned first appellate court held that the defendants are rank defaulter in payment of rent of the suit property. The learned first appellate court thereafter took up issue no. IV and considered that since the earlier Title (Eviction) Suit No. 27 of 1987 was dismissed for default, so the question of resjudicata does not arise. The learned first appellate court then took up issue no. III, V, VIII, XI & XII together and disposed of the said issues as not pressed. The learned first

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appellate court then took up issue nos. I & II and went on to hold that there exists a relationship of landlord and tenant between the parties and the defendants are rank defaulters and went on to hold that the suit is maintainable in its present form and the plaintiff has sufficient cause of action for the suit. Lastly, the learned first appellate court took up issue nos. IX and X together and because of the findings arrived by it in respect of other issues reiterated that there exists relationship of landlord and tenant between the parties and the defendants are rank defaulters and as the plaintiff has cause of action for the suit. So the plaintiff is entitled to the reliefs claimed and allowed the appeal as already indicated above.

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10 At the admission of this appeal, vide order dated 20.03.2017, the following substantial question of law was formulated by the predecessor Judge in the roster:-

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“(i) Whether the appellate court’s finding regarding the existence of relationship of landlord and tenant between the respondent/plaintiff and appellant/defendant is based on the proper appreciation of the evidence adduced by the parties and sustainable in law and in facts?”

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11 Mr. Jitendra Kumar Pasari, the learned counsel appearing for the appellants submits that the learned first appellate court committed error in appreciation of the fact that as the plaintiff have failed to lead any evidence to the effect that Ram Mohan Agrawala received the rent from the defendants which was the case of the plaintiff, the learned first appellate court ought not have held that the

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plaintiff has succeeded in establishing the relationship of landlord and tenant between the plaintiff and the defendants. It is then submitted by the learned counsel for the appellants that in the absence of any relationship of landlord and tenant between the plaintiff and the defendants, the learned first appellate court ought not to have decreed the suit of the plaintiff filed with a prayer for eviction.

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12 Relying upon the Judgment of Hon’ble Supreme Court of India, in the case of Manicka Poosali (Dead) by Lrs. & Others Vs. Anjalai Ammal & Another , reported in (2005) 10 SCC 38 , para-17 of which reads as under:-

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“ 17. This judgment was followed by this Court in Govindaraju v. Mariamman [(2005) 2 SCC 500] decided on 4- 2-2005. In Govindaraju case [(2005) 2 SCC 500] it has been held that the High Court while exercising its powers under Section 100 of the Code of Civil Procedure on reappreciation of the evidence cannot set aside the findings of fact recorded by the first appellate court unless the High Court comes to the conclusion that the findings recorded by the first appellate court were perverse i.e. based on misreading of evidence or based on no evidence.”

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It is submitted by Mr. Pasari that the High Court while exercising its powers under Section 100 of the Code of Civil Procedure on reappreciation of the evidence cannot set aside the findings of fact recorded by the first appellate court unless the High Court comes to the conclusion that the findings recorded by the first appellate court were perverse i.e. based on misreading of evidence and based on no evidence and in this case, the learned first appellate court erred in arriving at the conclusion that the relation of landlord and tenant exists between the plaintiff and the defendants and such a

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finding is perverse, so this Court can set aside the judgment of the first appellate court.

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It is next submitted by the learned counsel for the appellants relying upon the Judgment of Hon’ble Supreme Court of India in the case of Rajendra Tiwary Vs. Basudeo Prasad & Anr. , reported in 2001 2 JLJR(SC) 890 , para -7 of which reads as under:-

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“(7) IT is evident that while dealing with the suit of the plaintiffs for eviction of the defendant from the suit premises under clauses (c) and (d) of sub-section (1) of Section 11 of the Act, courts including the High Court were exercising jurisdiction under the Act which is a special enactment. The sine qua non for granting the relief in the suit, under the Act, is that between the plaintiffs and the defendant the relationship of landlord and tenant should exist. The scope of the enquiry before the courts was limited to the question : as to whether the grounds for eviction of the defendant have been made out under the Act. The question of title of the parties to the suit premises is not relevant having regard to the width of the definition of the terms "landlord" and "tenant" in clauses (f) and (h), respectively, of Section 2 of the Act.”

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That since sine qua non for granting the relief in a suit under

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the Bihar Building (Lease, Rent & Eviction) Control Act is that between the plaintiff and defendant, the relationship of landlord and tenant should exist but in this case, as the plaintiff has miserably failed to establish the same, hence the judgment and decree passed by the learned first appellate court being not sustainable in law be set aside and the judgment and decree of the learned trial court be restored.

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13 Mr. Rohit Roy, the learned counsel for the respondent on the other hand defends the impugned judgment. Relying upon the Judgment of Hon’ble Supreme Court of India in the case of Ambica Prasad Vs. Mohd. Alam & Another , reported in (2015) 13 SCC 13 ,

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para -15 of which reads as under:-

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“15. On the question of tenancy, both the trial court and the High Court have not considered the provision of Section 109 of the Transfer of Property Act.

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“109. Rights of lessor's transferee.—If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

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Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

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The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased.”

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From a perusal of the aforesaid section, it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect

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of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor (sic transferee) landlord would be proper and so also the suit for ejectment.” (Emphasis supplied)

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It is submitted by Mr. Roy that the law is well settled that

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after transfer of lessor’s right in favour of transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The

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Section does not insist that transfer will take effect only when the tenant attorns.

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14 It is next submitted by Mr. Roy that there is no dispute that the father of the defendants is the tenant of Sahu Brothers as the same has been admitted by the defendants in their written statement. It is also not in dispute that the widow of Ayodhya Prasad Sahu namely Bhagirathi Devi has sold the Schedule –B property to Ram Mohan Agarwala and the other Sahu Brother namely Gourishanker Sahu has also sold the property to Ram Mohan Agrawal vide sale deed no. 6840 of 1960. There is also no dispute that the plaintiff purchased the Schedule –B property from Ram Mohan Agarwala vide Ext.1 which is the registered sale deed which is duly proved and there is no dispute regarding the same. It is then submitted by Mr. Roy that thus, whether or not, the defendants have attorned the plaintiff, the plaintiff has become the landlord of the defendant-tenant in respect of Schedule –B land by way of purchase of title from the admitted landlord of the defendants and their father.

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15 Relying upon the Judgment of Hon’ble Supreme Court of India, in the case of Bhimsen Gupta Vs. Bishwanath Prasad Gupta , reported in AIR 2004 SC 1770 , para -6 of which reads as under:-

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“6. Section 11 of the said Act, 1982 deals with eviction of tenants. It begins with non obstante clause. It states that notwithstanding anything contained in any contract or law to the contrary no tenant shall be liable to be evicted except in execution of a decree passed by the Court on one or more of the grounds mentioned in Section 11(1)(a) - (f). In this case we are concerned with the ground of default which falls under Section 11(1)(d) and which states that where the amount of two months rent, lawfully payable by the tenant and due from him is in arrears by reason of non-payment within the time fixed by the

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contract or in the absence of such contract by the last day of the month next following that for which rent is payable then such default would constitute ground for eviction. It is interesting to note that the expression used in Section 11(1)(d) is "lawfully payable" and not "lawfully recoverable" and, therefore, Section 11(1)(d) has nothing to do with recovery of arrears of rent. On the contrary Section 11(1)(d) provides a ground for eviction of the tenant in the eviction suit. It is well-settled that law of limitation bars the remedy of the claimant to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of Section 11(1)(d) of the said Act, 1982. In the case of Bombay Dyeing and Manufacturing Co. Ltd. v. The State of Bombay and others, reported in (AIR 1958 SC 328) it has been held that when the debt becomes time barred the amount is not recoverable lawfully through the process of the Court, but it will not mean that the amount has become not lawfully payable. Law does not bar a debtor to pay nor a creditor to accept a barred debt.” (Emphasis supplied)

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It is submitted by Mr. Roy that law of limitation bars only the remedy of landlord to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of Section 11(1)(d) of the Bihar Building (Lease, Rent & Eviction) Control Act.

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16 It is then submitted by Mr. Roy that in view of the settled principle of law in the case of Ambica Prasad Vs. Mohd. Alam & Another (supra) and the Ext.1 as well as Ext.2 series which are the Municipality Tax Receipts and Ext.3, which is the land revenue receipts, the learned first appellate court has rightly held that there exists the relationship of landlord and tenant between the plaintiff and the defendants and as there is no bar for filing a suit for eviction and it is admitted fact of the defendants that after the year, 1951 the defendants have not paid rent. So the evidence in the record is

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sufficient to establish that the defendants defaulted in payment of rent. It is next submitted by Mr. Roy, the learned counsel for the respondent that another person purchased 1/3^rd share of the property which was also lent out on rent to another person and the second appeal challenging the said order of eviction was dismissed by a Coordinate Bench of this Court in Second Appeal Nos. 465 & 466, both of 2015 and both dated 23.07.2018. Hence, it is submitted by the learned counsel for the respondent that by no stretch of imagination, the finding of the learned first appellate court regarding existence of landlord and tenant between the plaintiff and the defendants can be said to be perverse warranting interference of this Court under Section 100 of the Code of Civil Procedure. Hence, it is submitted that this second appeal being without any merit be dismissed.

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17 Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that there is absolutely no dispute regarding the following facts:-

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(i) The defendant and their father were the tenant of the Sahu Brothers.

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(ii) The wife of Ayodhya Prasad Sahu and Gouri Shankar Sahu have sold the Schedule –B property of the plaint to Ram Mohan Agrawala by separate registered sale deeds.

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(iii) Ram Mohan Agarwala has sold the Schedule –B property to the plaintiff. Hence, in view of the principle of law settled by the Hon’ble Supreme Court of India, in the case of Ambica Prasad Vs. Mohd. Alam & Another (supra), this Court has no hesitation in

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holding that, whether or not, the defendant-tenants have attorned, yet the plaintiff has become the landlord of the defendant and the defendant has become tenant of the plaintiff in respect of the Schedule –B property of the plaint. Thus, there exists relationship of landlord and tenant between the parties.

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(iv) It is the admitted case of the defendants that the defendants have not paid rent in respect of the Schedule –B property of the plaint since the year, 1951. So this establishes default of payment of rent for a period of two months and in view of the existence of relationship of landlord and tenant between the plaintiff and the defendants and the fact that the defendants have defaulted in payment of rent to the plaintiff for a period of two months, is sufficient for the first appellate court to decree the suit of the plaintiff, directing the defendants to vacate the suit premises and allowing the

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appeal.

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18 After carefully going through the materials in the record, this Court finds that the finding of fact arrived at by the learned first appellate court was not done by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material. Nor the finding of fact arrived at by the learned first appellate court being the final court of facts outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse and in the absence of any perversity, it cannot be said that the finding of the learned first appellate court regarding the existence of landlord and tenant between the plaintiff and the defendants is based on proper

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appreciation of the evidence adduced by the plaintiff and the defendants and is sustainable in law. Hence, the sole substantial question of law is answered in the affirmative.

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19 In view of the discussions made above, this second appeal being without any merit is dismissed on contest but under the circumstances without any costs.

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20 Let a copy of this Judgment along with the Lower Court Record be sent to the court concerned forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 8^th May, 2023 AFR/ Sonu-Gunjan/-

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Usha Devi and Ors. v. Radha Devi

Case brief

What is this about?

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Usha Devi and Ors. v. Radha Devi

Case brief

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