Hiramuni Devi Vs MD Anwar Ansari

This appeal has been preferred against the judgment and decree dated 21.12.2023 (decree signed on 10.01.2024) passed in Civil (Eviction) Appeal No.06 of 2023 by the learned District Judge, Pakur, whereby, the said appeal has been dismissed and the judgment and decree dated 23.05.2023 (decree signed on 02.06.2023) passed in Title (Eviction) Suit No.23 of 2007 by the learned Civil Judge, Senior Division-I, Pakur (Sub Judge-I, Pakur) has been affirmed by the learned appellate court.

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The case of the plaintiff/respondent was that the plot no.-12 of MouzaAmrapara existing adjacent to Pakur-Dumka road in the northern side of the said road with a building standing thereon fully described in the Schedule-A belongs to the plaintiff, after the partition dated 07.10.1968 through originally

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it was possessed by all four brothers. The plaintiff reside in the aforesaid building with his family members, but the front portion of the building in the southern side adjacent to Pakur-Dumka road consisting of one pucca room and one verandah fully described in Schedule-B has been let out initially on a monthly rental of Rs.55/- per month but it was increased time to time and lastly the rent was fixed at Rs.450/- per month.

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It was further asserted that the defendant is very irregular in making payment of the monthly rent and in the year 2004 this plaintiff was almost ready to file eviction suit against the defendant on the ground of default and also because the son of the plaintiff has his shop only in one room of the building and considering the increase of numbers in the family it was felt necessary to expand the shop of the son inclusive the premises let out to the defendant to meet the expenses in the maintenance of the family. The defendant could know the intention of the plaintiff and requested the plaintiff not to disturb him at least for two years promising to vacate the premises after expiry of two years and at the same time the defendant paid up the entire arrear rent to 27.07.2004 from 01.04.2004 to July, 2004 @ Rs. 450/per month.

¶23

It was also asserted that the plaintiff considering his difficulty and request, did not file the suit being hopeful of getting the suit premises without harassment. But the defendant again stopped payment of rent for the period of August, 2004 and onwards and yet the plaintiff time to time very mildly reminded the defendant for the payment to rent being conscious of the fact that any harassness in making demand of unpaid rent may jeopardize the intention of the defendant regarding vacation of the premises after two years.

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It was further case of the plaintiff that the defendant at last paid the entire arrear rent at a time on 27.07.2006 for the period of 01.08.2004 to 31.08.2006 on 13.09.2006 requesting further time for a few months and the plaintiff agreed.

¶27

It was further asserted that the defendant neither paid the rent for the period from 01.09.2006 to onward nor vacated the premises in spite of several request. At last, this plaintiff sent a pleader notice through registered post with A.D on 26.02.2007 after determining the tenancy with a request to vacate the premises and to pay the rent from 01.09.2006 to 31.01.2007 amounting Rs.2,250/- but the defendant neither replied to the plaintiff's pleader notice nor vacated the premises or made payment of arrear and current rent and in this way the arrear rent accumulated to Rs.4,050/- only.

¶28

It was then asserted that the cause of action for the suit arose on 01.11.2006 when the defendant defaulted in making payment of rent for two consecutive months i.e. rent for the month of September and October, 2006 and is still continuing within the jurisdiction of this court.

¶29

It was further asserted that the defendant is liable for eviction from the premises for default and also considering the requirement of the plaintiff as provided Section 11 of Jharkhand Building (Lease Rent and Eviction) Control Act.

¶30

On the other hand, the defendant appeared and filed his written statement alleging therein that the suit as framed is not maintainable. It is barred by the law of limitation, plaintiff has got no cause of action for this suit, the suit is barred by the principles of acquiescence, estoppel

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and waiver. It was further alleged that the suit is bad for non-joinder of necessary parties and misjoinder of cause of action. The suit is bad for the joinder of two cause of action eviction on the ground of default and vague requirement of the plaintiff without pleading the personal necessity of the plaintiff.

¶34

It was further asserted that statements made in para 1 of the plaint are not admitted as the same are vague and unspecified there are two mouza in the name of Amarapara one is Amrapara Bazar and other is Amrapara Santhali and both are having separate thana number and the plaintiff has failed to give details of the mouza causing the description of the suit property vague and unidentifiable. Hence, for giving vague description of the lands in Schedule, the suit is fit to be dismissed on this ground above.

¶35

It was submitted that the defendant advanced a sum of Rs. 2677/- to Md. Abbas Mian son of Osi Mian of Mouza Amrapara on 15.09.1968 for construction of a pucca house and an agreement was arrived at in between said Md. Abbas Mian and this defendant namely Sitaram Prasad @ Bhagat and accordingly to that agreement which was executed on 20.09.1968, that one room and a verandah will be given on rent to the defendant on a monthly rent of Rs.51/- per month and agreed by them that the said advance money Rs. 2677/- will be adjusted towards rent since 1968 to 1973 till the month of February, thereafter the rent will be chargeable for the aforesaid room and verandah on the same rate of rent of Rs.51/- per month and whenever the defendant will pay the rent, he will be granted receipt thereof.

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It was also asserted that thus this defendant was inducted as a tenant by the said Md. Abbas Mian under the aforesaid agreement and in consideration of a sum of Rs.2677/- by way of advance and by virtue of written agreement dated 20.09.1968 and this defendant is occupying the premises as a month-to-month tenant on a monthly rent of Rs.51/- per month only.

¶39

It was then asserted that the said Md. Abbas Mian enhanced the rent from time to time for the suit premises under the threat and coercion of immediate eviction from the suit premises and lastly this defendant is paying the rent at the rate of Rs.450/- per month. It is very necessary to mention here that this defendant is a month-to-month tenant occupying the premises inducted by Md. Abbas Mian and not by the plaintiff, thereof there is no relationship of landlord and tenant in between the plaintiff and this defendant.

¶40

It was further asserted that statement made in para 3 of the plaint are entirely false, baseless and fraudulent as would be evident from the averments of the plaint and the same is clear about the coercive nature of the suit, this defendant continued to pay rent month to month to the said Md. Abbas Mian, he is not the tenant of the plaintiff and he always paid rent to Md. Abbas Mian, the statements made by the plaintiff to the contrary are wrong, erroneous and illegal.

¶41

It was also asserted that this defendant was never irregular in making payment of the rent to the said Abbas Mian rather whenever Abbas Mian was in need of money he received the amount of rent at a time for a year, two years even for three years at a time although the defendant is a month to month tenant of Md. Abbas Mian who used to receive rent through his bhatija

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Md. Anwar Mian nor by the plaintiff brother of Md. Abbas Mian but it can be said that Md. Abbas Mian never granted rent receipt in favour of the defendant as provided in the B.B.C. Act rather he used to make unregular endorsement in a exercise book through his bhatija which is against the provision of law. The defendant could have raised the matter before the competent court but for the sake of Md. Abbas and his agent Md. Anwar he never agitated the same. The plaintiff who happens to be brother of Md. Abbas taking the benefit of above irregular endorsement has filed the suit for eviction on ground of default when it is a fact that the defendant has paid rent of Anwar Mian till June, 2007 and there had been no occasion of any making default in payment of the rents. It was submitted that this defendant used to pay rent month by month to said Md. Anwar Mian, who paid rent upto month of June, 2007 to said Md. Anwar Mian and he never granted rent receipt for the same, because there was no practice of granting rent receipt whenever this defendant paid rent to him.

¶45

It was further asserted that the defendant had been carrying his business in clothes in the rented premises since 1968 and due to passing of time the pucca roof has been leaved due to which rain water drops in the room causing damages and although repeated request has been made, neither Anwar Mian nor Abbas Mian or his daughter Salmi Bibi has repaired the same but has illegally enhanced the rent of the house from Rs.51/- to Rs.450/- now.

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It was further asserted that this defendant is never a tenant of the plaintiff, rather he is a tenant of Md. Abbas Mian and this defendant has paid rent to said Md. Anwar Mian agent of Md. Abbas Mian upto date and has

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never granted rent receipt for the same. It is false to say that the plaintiff ever served notice upon this defendant or there is any arrears of rent, till the month of January, 2007 upon this defendant, so he is not liable to pay any rent to the plaintiff, but he has paid the monthly rents of suit premises to said Md. Abbas Mian and there is nothing any dues against this defendant.

¶50

It was also asserted that the defendant was not a tenant of the plaintiff rather a tenant of Md. Abbas Mian and never executed any agreement regarding condition of tenant with hi nor paid any to him, so he ignored the notice sent by the plaintiff earlier. The defendant has paid rent to the said Md. Anwar Mian till May, 2007 but he has refused to receive rent thereafter and the above suit has been brought by this plaintiff, the said Md. Anwar Mian might have refused for the same although the defendant is ready to pay the rent till now. That the plaintiff is not entitled to any of the reliefs claimed and the suit is liable to be dismissed with cost.

¶51

Mr. Sachi Nandan Das, learned counsel for the appellants submits that there is law point involved in this second appeal and on the law point this appeal may kindly be admitted. According to him, law point is that Abbas Mian used to collect rent at his convenience for year/two years or more at a time from the defendant and in absence of valid notice issued by Abbas Mian to the defendant for payment of rent every month, as month to month tenant, the defendant cannot be called a defaulter within the meaning of Section 11(i)(d) of the Act.

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The plaintiff/respondent instituted Title (Eviction) Suit No.23 of 2007

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for eviction of the defendants from Schedule-B premises and delivery of vacant possession to the plaintiff and further prayer was made for any other relief(s) to which the plaintiff may be found entitled under the law and equity. On the basis of the pleadings of the parties, the learned trial court has framed 9 issues in paragraph 4 of the judgment. The learned trial court has framed issue no.5 with regard to the fact whether there is relationship of landlord and tenant between the plaintiff and defendant or not. The learned trial court has considered the statement of P.W.4- Salma Bibi, who is the only daughter of Late Md. Abbas Mian whom the defendant considered that they were his tenant and not the tenant of present plaintiff/respondent. P.W.4 in her evidence has deposed that Md. Muslim was his uncle and they were four brothers; (1) Safik Miyab, (2) Abbas Miyan, (3) Md. Muslim and (4) Hanif Miyan and during their lifetime, they have partitioned their property and document of the same were prepared in which all the brothers and witnesses made their signatures. The land of Mouza Amarapara bazar plot no.12 fell in the half share of Md. Muslim and half in the share of Hanif Miyan and the portion of room and verandah received in share by Md. Muslim, has been rented to the defendant.

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P.W.2- Md. Anwar who was the substituted plaintiff has deposed in his evidence that he is the son of the plaintiff and his father was jointly possessing the house over plot no.12 of Mouza Amarapara bazar and also house in Plot no.49 of the Mouza along with his three brothers, namely, Md. Hanif Mian, Md. Abbas Mian and Md. Shafik. He further deposed that partition of the house in Plot No.12 and Plot No.49 took place between the plaintiff and his three brothers prior to death of two uncles. He has also deposed that during

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the jointness, he used to manage the house hold affairs including realization of rent from the defendant, who was let out the suit premises from the notebook of rent receiving statement and these facts have also been corroborated in light of Ext.D-2 to D-2/6 and the learned trial court has come to conclusion that the said evidence can be inferred that the substituted Md. Anwar used to collect rent and in the pleadings of the defendant also, there is admission to this fact that they used to give rent to Md. Anwar who was agent of Late Md. Abbas in para no. 11 of their written statement.

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In view of the above facts, the learned trial court has considered Section 2(h) of the Jharkhand Building (Lease, Rent and Eviction) Control Act, which defines the tenant and come to the conclusion that the landlord tenant relationship has been established and that is the main issue with regard to the eviction case and in light of the further evidence brought on record, the learned trial court has come to the conclusion that there exists landlord tenant relationship and the defendant is a defaulter under Section 11(1)(d) of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000 and the plaintiff has bonafide personal need of the suit premises and in view of that, the decree has been passed in favour of the plaintiff and the judgment was delivered on 23.05.2023.

¶61

The judgment passed by the learned trial court dated 23.05.2023 passed in Title (Eviction) Suit No.23/2007 was challenged by the defendants/appellants before the learned appellate court in Civil (Eviction) Appeal No.06 of 2023 and the learned appellate court vide judgment dated 21.12.2023 has dismissed the said appeal and affirmed the judgment passed

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by the learned trial court. The learned appellate court has further framed points to decide the appeal. The learned appellate court has considered the evidence of P.Ws. as well as D.Ws. and has come to the conclusion at paragraph 31 that there is landlord-tenant relationship between the plaintiff and defendant. The issue no.6 was framed with regard to the fact whether defendant is defaulter in making payment of rent or not and considering evidence of P.W.2 and D.W.5, the learned appellate court has found that the defendants/appellants used to pay rent to Md. Anwar and Md. Anwar is the son of the plaintiff late Md. Muslim who is the brother of Md.Abbas Mian. P.W.4- Salma Bibi also deposed that she neither collected rent from the defendant rather the suit land come into the share of the plaintiff so he used to collect rent from the defendant. In view of that, the learned appellate court has found that the defendant was paying rent to the plaintiff. 10. Personal necessity was considered at paragraph no.39 of the judgment of the learned appellate court and the learned court found that in light of the evidence that the plaintiff’s son has his shop only in one room of the building and considering the increase of numbers in the family, it was felt necessary to expand the shop of the son inclusive the premises let out to the defendant to meet expenses in the maintenance of the family and P.W.2 has supported the case of the plaintiff on the point of personal necessity and in light of that, the learned appellate court has also come to the conclusion that the personal necessity is proved in favour of the plaintiff. Rest of the issues are also decided in accordance with law and in view of that, the learned appellate court vide judgment dated 21.12.2023 dismissed the appeal on contest and affirmed the judgment passed by the learned trial court.

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So far as the law point argued by the learned counsel for the appellants is concerned, that has already been considered by both the learned courts and they have come to the conclusion that the rent was being paid to the plaintiff.

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In view of the above facts, reasons and analysis, there is no error in the judgments of either trial court as well as the appellate court. There is concurrent finding of both the courts. No law point is involved in the present appeal. In second appeal, re-appreciation of the facts are not required when concurrent finding of two courts are there and, as such, this second appeal is, hereby, dismissed.

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Pending I.A., if any, is disposed of.

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(Sanjay Kumar Dwivedi, J.)

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Ajay/

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Hiramuni Devi v. MD Anwar Ansari

Case brief

What is this about?

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Hiramuni Devi v. MD Anwar Ansari

Case brief

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