Binay Krishna Saha And Anr. Vs Laxmi Devi

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No.642 of 2015

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Binay Krishna Saha 2. Bijay Krishna Saha .... .... …. Appellants Versus Laxmi Devi .... .... .... Respondent

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. S.K. Sharma, Advocate For the Respondents :

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Order No.14 / Dated : 16.04.2024

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1. Instant Second Appeal has been filed against the judgment and decree passed in Title Appeal No.4/2015 whereby and whereunder the judgment and decree passed in Title (Eviction) Suit No.08 of 2006, has been affirmed.

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2. Plaintiff’s suit for eviction filed under Section 11(1)(b) and (d) of the Jharkhand Building (Lease, Rent and Eviction) Control Act on the ground of default in payment of rent and for material deterioration of the building. It was further case of the plaintiff that her husband had taken ₹ 60,100 as advance rent from the defendant and had signed over the receipt. The receipt dated 05.03.1975 was forged and fabricated.

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3. Case of the defendant is that there had not been any partition of the property among the plaintiff and defendant who are admittedly full brothers. Defendants are the tenant and the rent was being paid as per convenience. Initially the rent was ₹ 90 per month. Earlier an Eviction Suit No.32/85 was filed against the defendant which was disposed of on a compromise on which the rent of the shop was agreed to ₹ 350 per month. However, the rent was enhanced to ₹ 650 per month and again to ₹ 1000 since August 2002. The payment of rent was being made in cash till February, 2005 and an advance rent of ₹ 60,100 was taken on 05.03.1975. Defendant had tendered the rent since March, 2005 in cash but receipt was not given, it was averred that husband of the plaintiff had taken ₹ 25,000 more rent from the defendant.

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4. On the basis of the pleadings of the parties the following main issues were framed:

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(a) If the husband of the plaintiff Santu Prasad Das had taken from the defendant on 05.03.1975 ₹ 60,100 as advance rent which was adjusted in the rent?

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(b) If the defendant had committed default in payment of rent

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since March, 2005?

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5. These issues were answered in the negative and a finding was recorded that the defendant had failed to establish that Rs.60,100/- was paid by him to the plaintiff. The eviction suit was decreed for default in payment of rent.

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6. The first appellate Court concurred with the finding of fact recorded by the learned trial Court.

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7. Learned counsel on behalf of appellants submits that the appellants have been already evicted from the shop premises and therefore, the challenge to the eviction order is not being pressed.

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8. During the course of argument, the learned counsel appearing on behalf of the appellants submits that the substantial question of law in the present appeal is that the issue of refund of the advance of Rs.60,100/- has not been decided by the learned Court below. Appellant is entitled to its refund in view of the ratio laid down in Mohd. Salimuddin Versus Misri Lal & Another , AIR 1986 SC 1019 .

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9. This Court is of the view that issue sought to be raised in the Second Appeal is not a question of law, but a question of fact which has been answered by the learned trial Court. A finding of fact has been recorded in this regard that defendant failed to prove the advance of the said amount and accordingly, issue no.5 was answered in favour of the plaintiff.

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This Court does not find any substantial question of law so as to interfere with the concurrent findings of fact recorded by the learned Courts below.

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Appeal is accordingly dismissed on the point of admission.

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(Gautam Kumar Choudhary, J . )

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Anit

Binay Krishna Saha And Anr. v. Laxmi Devi

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Binay Krishna Saha And Anr. v. Laxmi Devi

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