Second appeal against eviction decree on grounds of rent default and personal necessity. The court held that a pending agreement to sell did not sever the landlord-tenant relationship since tenants continued paying rent to the ex-landlord, and that deposition by a power of attorney holder was not fatal in a documentary-evidence case. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 254 of 2018
All residents of Station Road, Jugsalai, P.O. & P.S.- Jugsalai, Town Jamshedpur, District- East Singhbhum.
… … Defendants/Appellants/Appellants Versus
Smt. Kanta Jain, W/o Sri Manik Chand Jain Resident of Kutchari Mohalla, Station Road, Jugsalai, P.O. & P.S.Jugsalai, Town- Jamshedpur, District- East Singhbhum.
… … Plaintiff/Respondent/Respondent
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Appellants : Mr. Manjul Prasad, Senior Advocate : Mr. Arbind Kr. Sinha, Advocate : Mr. Baban Prasad, Advocate : Mr. Akhouri Prakhar Sinha, Advocate : Mr. Aniket Rohan, Advocate For the Respondent : Mr. Indrajit Sinha, Advocate : Ms. Puja Agarwal, Advocate ---
10 /17.01.2025 Heard the learned counsels appearing on behalf of the parties.
2. This second appeal has been filed against the judgment and decree dated 10.05.2018 (Decree sealed and signed on 25.05.2018) passed by learned Principal District Judge, East Singhbhum, Jamshedpur in Civil Appeal No. 5 of 2014 whereby the judgment and decree dated 10.04.2014 (Decree sealed and signed on 25.04.2014) passed by learned Civil Judge (Junior Division)-I in Eviction Suit No. 9 of 2010 has been affirmed.
3. This second appeal has been admitted for final hearing vide order dated 01.02.2019 and following substantial question of has been framed:
"Whether the impugned judgment and decree passed by the learned Court below stands vitiated for not taking into account the pleadings of the parties which clearly established that during the subsistence of the tenancy, the plaintiff/ landlord had executed an Agreement to Sale dated 22.02.2006
in favour of tenant/ defendant and as such, since then the relationship of landlord and tenant ceased. Hence, the suit for eviction of tenant, itself is not maintainable?"
4. Later on, another substantial question of law was framed vide order dated 09th January 2025 which is as follows:
"Whether the evidence led by the general power of attorney holder dated 12.03.2013 (Exhibit-2) (marked with objection), after institution of suit could have been looked into by both the courts below for the incidence/facts happened prior to institution of the suit?"
Arguments on behalf of the Appellants
5. Learned Senior counsel appearing on behalf of the appellants has submitted that it is not in dispute that the father of the defendants in the present suit was tenant in the suit premises and during the subsistence of tenancy, an agreement of sale was entered into in the year 2006 and the appellants who were the defendants in the suit continued in possession of the suit premises. He has also submitted that in view of the aforesaid agreement of sale, the suit for eviction under Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as "BBC Act") was itself not maintainable. The learned Senior counsel has submitted that the relationship of landlord and tenant ceased from the date of execution of the agreement of sale in the year 2006 and the defendants along with their father, continued to remain in possession of the suit property as part performance of the agreement of sale.
6. The learned Senior counsel for the appellants has relied upon the judgment passed by the Hon’ble Supreme Court reported in 2010 AIR SCW 1411 (Joseph Kantharaj and Anr. Vs. Attharunnisa Begum S) and has referred to paragraphs 9 and 10 thereof to submit that the facts of the present case is squarely covered by the said judgment. It is submitted that in the said case, the Hon’ble Supreme Court has held that the trial Court was justified in its decision to defer the eviction proceeding till the decision by the Civil Court in the suit for specific performance of contract.
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7. The learned Senior counsel has submitted that in the present case the plaintiff entered into the picture in the year 2008 when they purchased the property vide sale-deed dated 08.02.2008 and prior to the same, the suit bearing Title Suit No. 20 of 2007 was pending before the Court seeking specific performance of contract. Title Suit No. 20 of 2007 was filed by Manju Jain and Rajesh Kumar Jain in whose favour the agreement of sale was executed in the year 2006 by the original landlord. He has also submitted that in the Title Suit No. 20 of 2007 as of now the present landlord has been made party and the suit is pending.
8. The learned Senior counsel submits that the core issue is that the relationship of landlord and tenant ceased by virtue of the agreement of sale dated 22.02.2006 and therefore, the present suit could not have been decreed on account of default on payment of rent. 9. The learned Senior counsel has thereafter submitted that the tenancy existed between the original tenant who was father of Rajesh Kumar Jain and the original landlord, and the defendants never paid rent either to the original landlord or to the alleged landlord.
10. With respect to the 2nd substantial question of law, the learned Senior counsel has submitted that the holder of power of attorney dated 12.03.2013 could not have deposed on behalf of the plaintiff as she had no personal knowledge about what transpired prior to 12.03.2013 between the plaintiff and the defendants and also between the ex-landlord and the defendants. Admittedly, the ex-landlord never deposed before the learned trial Court.
Arguments on behalf of the Respondent
11. Learned counsel appearing on behalf of the respondent has opposed the prayer and has submitted that admittedly father of the defendants was the tenant in the premises, but even after the agreement in the year 2006, the tenancy continued as it was the case of the defendants before the learned trial Court that their father continued to pay rent. He has also submitted that as per the crossexamination of Rajesh Kumar Jain, rent was remitted by the defendants to the ex-landlord. He has also submitted that in such
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circumstances it cannot be said that the tenancy ceased by virtue of the agreement of sale in the year 2006 and the defendants came in possession of the property by virtue of the agreement of sale and became the owner of the property.
12. Learned counsel for the respondent has also submitted that the relationship of landlord and tenant never ceased and there are concurrent findings of the learned Courts with respect to the relationship of landlord and tenant. It is an admitted fact on record that so far as the subsequent purchaser is concerned, the rent was never remitted to the subsequent purchaser which became a cause of action for filing the suit. He has also submitted that after the purchase by the subsequent purchaser, the defendants were duly informed about the purchase of the property, but in spite of that they did not remit the rent and they became a defaulter.
13. The learned counsel has also submitted that the judgment passed by the Hon'ble Supreme Court, as relied upon by the appellants, does not apply to the facts of the present case. In the said judgement the tenant was permitted by the landlord to continue in possession of the property free of rent in part performance of the agreement of sale but there is no such case or stipulation in this case. He has also submitted that the judgment is to be read as a whole and the Hon'ble Supreme Court has itself given a word of caution in the said judgment.
14. The learned counsel has further submitted that there was no impediment in examination of the power of attorney holder, inasmuch as, the case rested on documentary evidences and the facts which stood admitted amongst the parties and this aspect of the matter has been taken care of by the learned appellate Court in paragraph 15 of its judgment. He has also referred to paragraph 6.9 of the trial Court's judgment to submit that DW- 1 namely Rajesh Kumar Jain in his cross-examination has stated that he has been paying rent to the vendor of the plaintiff i.e. the ex-landlord and also deposed that after getting information about the sale of the suit premises, he made Abhilasha Jain a party in the pending suit for specific performance,
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that is, Title Suit No. 20 of 2007 on 26.03.2008. The learned counsel submits that the fact about the purchase of property by the plaintiff soon came within the knowledge of the tenant at least as back as in the month of March 2008 which is apparent from the discussions made in paragraph 6.9 of the trial Court's judgment.
Findings of this Court
15. Eviction suit was filed by the plaintiff Smt. Kanta Jain against 4 defendants who are the appellants before this Court and all are sons of Late Bijay Kumar Jain (the original tenant) seeking a decree of eviction of the defendants from the suit premises described in Schedule B. As per the plaint filed on 02.02.2010, the plaintiff was the owner of the property described in Schedule A and the plaintiff had purchased the schedule A property from its previous owners namely Govind Kumar and Sandhya Bhadani by registered deed dated 08.02.2008 and the defendants were in possession of ground floor of Schedule A property which was referred as Schedule B on a monthly rent of Rs. 150/- per month besides other charges and they continued as monthly tenant under the plaintiff. It was asserted that the defendants were duly informed by the ex-landlord as well as the plaintiff about transfer of suit premises in favour of the plaintiff but the defendants did not pay rent to the plaintiff and consequently, a suit for eviction was filed. A plea of personal necessity was also raised. It was asserted that on several occasion, request was made to the defendants to clear the arrears of rent and vacate the premises, but the defendants did not give any heed to such request.
16. The defendants contested the suit by filing written statements asserting that there was no relationship of landlord and tenant between the plaintiff and the defendants and denied that the plaintiff was the owner of the suit premises. It was also asserted that a Title Suit No. 20 of 2007 and another title suit being Title Suit No. 89 of 2006 filed by the father of the defendants against the previous landlord was pending. They asserted in the written statement that Bijay Kumar Jain was the lawful tenant of the suit premises under the previous landlord and was regularly remitting rent to the previous landlord without any default or
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arrears of rent. It was also asserted that there was no question for previous landlord to inform the defendants regarding transfer of the suit property to the plaintiff since another title suit being Title Suit No. 20 of 2007 was pending in connection with specific performance of agreement of sale of the year 2006 and it was asserted that the plaintiff did not acquire any right, title or interest or possession on the basis of registered deed of sale dated 08.02.2008.
17. As many as 10 issues were framed and issue no. (V) was whether there exists relationship of landlord and tenant between the parties and issue no. (VIII) was whether the defendants defaulted in payment of rent for more than two months and thereby made themselves liable for eviction. 18. The learned trial Court considered the materials and recorded that the plaintiff had averred that the defendants were duly informed by the ex-landlord about the transfer of the suit premises in favour of the plaintiff but the defendants gave evasive reply by only stating that there was no question of such information as previous suit was filed in the Court as Title Suit No. 20 of 2007 which was pending between the defendants and the original landlord. The learned trial Court also recorded that there was no specific pleading to show that the defendants were unaware of the sale/purchase of the suit premises and that one of the defendants had himself admitted in paragraph 29 of his cross-examination that after the information regarding sale of the suit premises (sale on 08.02.2008) he had made the present plaintiff and another purchaser namely Abhilasha Jain party in aforesaid Title Suit No. 20 of 2007 on 26.03.2008. The learned trial Court held that the case was of pure eviction suit and the defendants by entering into agreement of sale in the year 2006 with the original landlord did not become the owner of the suit premises and the plaintiff, after purchase of the suit premises, stepped into the shoes of previous landlord and recorded that there existed a relationship of landlord and tenant between the parties. With respect to the point of default, the learned trial Court recorded that admittedly the defendants had not paid any rent to the plaintiff since the date the plaintiff stepped into the shoes of
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the original landlord till the filing of the suit and the defendants at one place in their written statement admitted that they had not paid monthly rent to the original landlord as well. The learned Court also held by appreciating the materials on record that defendants never paid rent to the plaintiff as well as to the original landlord since 08.02.2008 till the filing of the eviction suit and were defaulter of not paying rent for more than two months. The learned trial Court also considered the issue regarding non-examination of the plaintiff in person while deciding issue no. (VI) but the learned Court recorded that the non-examination of plaintiff in the eviction suit was not fatal.
19. The learned appellate Court observed that the point for determination before the Court centered on the question as to whether there exists landlord -tenant relationship between the parties and if this question is decided in the affirmative, then incidentally the question of default stands answered because admittedly the defendants while denying the landlord -tenant relationship have a specific case of nonpayment of rent to the plaintiff or his vendor. It was also observed that if the dominant question of landlord-tenant relationship is decided in the negative, then the suit is bound to fail. Incidental to the dominant issue as per the appellate Court was whether by virtue of agreement of sale between the defendants and the vendor of the plaintiff, the relationship between them still subsisted as landlord-tenant or not. The learned appellate Court observed that the law is well-settled that a suit for specific performance of contract cannot debar a landlord for bringing a suit for eviction and two suits can run simultaneously. The learned appellate Court, after considering the materials, recorded that there was material on record to show that despite there being an agreement for sale between the original landlord and the defendants, the defendants continued to remit the rent to the original landlord which amounted to an acknowledgement of the landlord-tenant relationship between the parties despite there being an agreement of sale between the parties. The learned appellate Court also held after scrutinizing the materials on record that the learned trial Court had not committed any error in law or in fact in holding that there existed
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landlord-tenant relationship between the parties. With respect to the examination of power of attorney holder , the learned appellate Court specifically recorded its findings in paragraph 15 and rejected the plea and observed that non-examination of the plaintiff in-person and examination of the power of attorney holder on behalf of the plaintiff was not a defect which could go to the root of the case as the law is well-settled that non-examination of the plaintiff in-person will be fatal if the evidence is to be given in respect of facts to the personal knowledge of the plaintiff and in the present case the entire suit was dependent on the documentary evidence and admission of the defendants.
The first substantial question of law
20. The first substantial question of law as quoted above revolves around the answer to the question as to whether the relationship of landlord and tenant between the original landlord and the defendants ceased to exist upon execution of agreement of sale dated 22.02.2006. If the answer is yes, then the suit for eviction filed by plaintiff who purchased the property in the year 2008 by registered sale deed executed by the ex-landlord may not be maintainable as the plaintiff only enters into the shoes of the original landlord. The fact remains that the suit for specific performance of contract of sale dated 22.02.2006 was still pending being Title Suit No.20 of 2007.
21. This Court finds that it is an admitted fact that Bijay Kumar Jain, the father of the defendants was a tenant in the suit property and during the subsistence of tenancy, an agreement dated 22.02.2006 (Exhibit-A) was entered into between Rajesh Kumar Jain, S/o Bijay Kumar Jain and Manju Jain who is sister-in-law of Rajesh Kumar Jain at one side and the original landlords, Govind Kumar and Sandhya Bhadani, on the other side. Thereafter, a title suit being Title Suit No. 20 of 2007 was filed seeking specific performance of contract with regards to the suit property seeking enforcement of agreement of sale dated 22.02.2006 (Exhibit-A). During the pendency of the aforesaid suit for specific performance of contract being Title Suit No. 20 of 2007 the property was sold by the ex-landlord in favour of the present
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plaintiff vide a registered sale-deed dated 08.02.2008 and the purchaser was also made party in the pending suit for specific performance of contract being Title Suit No. 20 of 2007 as back as on 26.03.2008. During the pendency of Title Suit No. 20 of 2007, the present suit was filed by the purchaser of the suit property on 02.02.2010 on account of default in payment of rent and also personal necessity.
22. This Court finds that the defendants had filed their written statement denying the relationship of landlord and tenant and their specific case was that their father had been remitting rent to the exlandlord even after the agreement dated 22.02.2006 and there was no relationship of landlord and tenant between the plaintiff or even the ex- landlord and the defendants. The learned Courts have recorded a finding that the defendants did not remit any rent to the ex-landlord and also to the plaintiff since the plaintiff purchased the property through registered sale deed from the ex-landlord in the year 2008. After going through the materials on record, this Court finds that the learned appellate Court has rightly recorded a finding that there was material to show that despite there being an agreement for sale between the vendor of the property/original landlord and the defendants, the defendants continued to remit the rent to the original landlord which amounted to an acknowledgement of the landlord tenant relationship despite there being an agreement for sale between the parties. This Court finds that this was the specific case of the defendants in the written statement that their father continued to remit rent to the original landlord.
23. This Court finds that there are concurrent findings recorded by both the learned Courts with regard to the relationship of landlord and tenant upon going through the materials on record. This Court also finds that there is clear finding that in spite of the agreement of sale dated 22.02.2006 the defendants continued to pay rent to the vendor/original landlord. For the aforesaid finding, specific reference has been made to the cross-examination of the Rajesh Kumar Jain (D.W. 1) who, in his cross-examination, has stated that they have
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continued to remit rent to the landlord. This Court further finds that there is enough material on record to show that the relationship of landlord and tenant continued in spite of the agreement of sale dated 22.02.2006 and for the purposes of Jharkhand Building (Lease, Rent and Eviction) Control Act the remitting of rent by itself is enough to hold that there was a relationship of landlord and tenant. This Court is of the considered view that mere agreement to sale dated 22.02.2006 does not severed the relationship of landlord and tenant unless the tenanted premises is actually transferred to the tenant by execution of a sale deed or the agreement stipulates or the conduct of parties indicates that the parties severed the relationship of landlord and tenant and there ceased to be any liability on the tenant and corresponding right of the landlord to demand/receive rent after entering into agreement of sale. In the present case, neither there is any stipulation in the agreement of sale nor the conduct of parties reveal such an understanding as it is the specific case of the defendants that the father of the defendants continued to remit rent to the ex-landlord. This by itself is sufficient to hold that the relationship of landlord and tenant between the ex-landlord and the defendants did not cease upon entering into agreement of sale in the year 2006 and hence the suit for eviction on default of payment of rent on account of default was certainly maintainable at the instance of the plaintiff, purchaser of the property in the year 2008. 24. So far as the judgment which has been relied upon by the appellants passed in the case of Joseph Kantharaj and Anr. (Supra) is concerned, in the said case there was an agreement of sale and the appellants therein were to continue in possession of the property free of rent in part performance of the agreement of sale. In the present case, it is not the case of the appellants that there was any such stipulation in the agreement of sale executed in the year 2006, rather there was just an agreement of sale and the sale deed was yet to be executed to confer title upon Rajesh Kumar Jain and Manju Jain who entered into aforesaid agreement of sale dated 22.02.2006, for which a suit for specific performance of contract was pending before the
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Court. Accordingly, the case of Joseph Kantharaj and Anr. (Supra) does not help the appellants in any manner whatsoever.
25. As a cumulative effect of the aforesaid findings, the first substantial question of law is answered in favour of the respondent (landlord) and against the appellants (tenants).
The second substantial question of law
26. The second substantial question of law revolves around the answer to the question as to whether the evidence of the general power of attorney holder dated 12.03.2013 (Exhibit-2) could have been looked into for the incidence/facts happened prior to institution of the suit.
27. During the pendency of the suit, a power of attorney was executed by the plaintiff in favour of the P.W. 1 on 12.03.2013 and admittedly, the plaintiff did not depose in-person before the Court, rather the power of attorney holder deposed before the Court and was cross-examined. The learned trial Court recorded in paragraph 6.9 as under:
28. So far as P.W. 1 is concerned, her deposition has been considered in paragraph 6.3 of the trial Court's judgment which is as under:
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purchase the plaintiff as well as the previous landlord had given information to the defendants about the said sale."
29. The learned trial Court, after considering the materials on record, held that the question of title in pure eviction suit does not arise and by entering into an agreement of purchase, the defendants cannot become owner of the premises till the sale-deed is executed and merger of tenancy with ownership is beyond the scope of Eviction Act. It has also been held that the plaintiff, after purchasing the suit premises from the original landlord, stepped into their shoes and became landlord of the suit premises and hence, it was recorded by the learned Court that there was a relationship of landlord and tenant. The learned trial Court also noted that there was no specific pleading to show that the defendants were unaware of the sale-purchase of the suit premises and the defendants had themselves admitted in paragraph 29 of the cross-examination that after information regarding sale of the suit premises they had made plaintiff as party in Title Suit No. 20 of 2007 on 26.03.2008. Paragraphs 6.20 and 6.21 of the trial Court's judgment are quoted as under:
"6.20. Moreover, I do find any specific pleadings to show that the defendants were unaware of the sale -purchase of the suit premises as well as the defendant has himself admitted in para29 of his cross-examination that after the information regarding sale of the suit premises (sale on 08.02.08). He has made plaintiff and another purchasers namely Abhilasha Jain party in the Title suit No.20 of 2007 on 26.03.08.
6.21. The question of title in pure eviction suit does not arise. By entering into an agreement of purchase the defendant cannot become owner of the premises till the sale deed is executed and merger of tenancy with ownership is beyond scope of eviction act. The plaintiff after purchasing the suit premises from the original landlords stepped into their shoes and became landlord of the suit premises Hence, on the basis of the aforesaid discussion, I am of the view that there exists relationship of landlord and tenant between the parties. As such this issue is decided in favour of the plaintiff and against the defendants."
30. The learned appellate Court also considered the argument of the defendants who were the appellants before the learned Court and held that non-examination of plaintiff in-person could be fatal if the
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evidence is to be given in respect of facts to the personal knowledge of the plaintiff and in the present suit, the entire case was dependent on the documentary evidence and examination of the defendants, hence non-examination of the plaintiff in-person and examination of power of attorney holder on behalf of the plaintiff was not a defect which could go to the root of the case.
31. This Court also finds that the plaintiff (respondent herein) who has given power of attorney in favour of the PW- 1 in the year 2013 during the pendency of the case, though was not examined, but the power of attorney holder deposed primarily on the basis of the materials on record. With regard to information to the defendants regarding the sale of the tenanted property in favour of the plaintiff it has come on record that the defendants in their suit for specific performance of contract had themselves amended the plaint and made the subsequent purchaser party way back in the month of March, 2008 and therefore, there is no question of denial of knowledge on the part of the defendants that the tenanted property was sold to the plaintiff. This aspect of the matter and the attending circumstances have been duly taken into consideration by the learned appellate court to come to a finding that examination of the power of attorney of the plaintiff instead of the plaintiff was not fatal to the suit.
32. This Court finds that while considering the objection with regard to examination of the power of attorney holder, the learned appellate Court has rightly concluded in paragraph 15 that nonexamination of the plaintiff in-person and examination of the Power of attorney holder on behalf of the plaintiff is not a defect which goes to the root of the case. Paragraph 15 of the judgement is quoted as under:
"15. Argument on behalf of the appellant/plaintiff that respondent was not examined in persons is also of no use. The law is settled that non- examination of the plaintiff in person will be fatal if evidence is to be given in respect of facts to the personal knowledge of the plaintiff. In this case the entire suit is dependent on the documentary evidence and the admission of the defendant. Hence, non-examination of the plaintiff in person and examination of the Power of attorney holder on behalf of the plaintiff is not a defect which goes to the root of the case."
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33. In view of the aforesaid facts and circumstances, this Court is of the view that the evidence of the holder of power of attorney dated 12.03.2013 after institution of the suit could have been looked into by both the learned Courts as the evidence of the power of attorney holder was duly supported by the materials placed on record and there was nothing in her evidence which was relied upon by the Courts and which could be said to have been based upon any personal knowledge of the ex-landlord/landlord.
34. Accordingly, the second substantial question of law framed vide order dated 09.01.2025 is decided against the appellants (tenants) and in favour of the respondent (landlord).
35. Both the substantial questions of law having been decided against the appellants, this second appeal is accordingly dismissed. 36. Pending interlocutory application, if any, is dismissed as not pressed.
37. Let the records received from the learned Court be sent back to the learned Court concerned.
(Anubha Rawat Choudhary, J.)
Pankaj
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2 issues framed by the court
Whether an agreement to sale executed during the subsistence of tenancy severs the landlord-tenant relationship so as to make an eviction suit by a subsequent purchaser untenable?
Whether the evidence of a power of attorney holder appointed after institution of the suit could be relied upon for facts predating the suit?
Colour shows how this judgement treated each authority
Joseph Kantharaj and Anr. Vs. Attharunnisa Begum SDistinguished¶24
2010 AIR SCW 1411 · Who else cites this
2 provisions across 2 enactments
Rajesh Kumar Jain
Mukesh Jain
Shailesh Jain
Manoj Jain
Smt. Kanta Jain
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
