Shanti Kunwar And Ors. Vs Parashnath Keshri And Anr.

Sl. No. 6 to 8 daughters of Late Laxmi Uraon, minor represented through guardian Shanti Kunwar (Appellant No.1), residents of Village Farathiya, P.O. Hoor, P.S. & District Garhwa.

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… … Defendants No.1/Appellants/Appellants

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Versus

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Parashnath Keshri, son of Late Banshidhar Keshri, at presentresident of Bali Sao Lane, Garhwa town, P.O. & P.S. Garhwa, District Gahrwa.

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… … Plaintiff/Respondent/Respondent

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The Deputy Commissioner, Garhwa, P.O., P.S. & District Garhwa. … … Defendant No.2/Respondent No. 2/Respondent

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellants : Mr. Sudhir Kumar Sharma, Advocate For the Respondents : None ---

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14 /05.03.2025

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1. Heard the learned counsel appearing on behalf of the appellants.

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2. Nobody appears on behalf of the respondents.

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3. The record of the case reveals that the substantial question law

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was framed by this Court vide order dated 27.09.2018 and notice was issued upon respondent No. 1 and 2.

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4. Respondent No. 1 appeared through Vakalatnama but so far as respondent No. 2 is concerned, the notice was served in his office. Respondent No. 2 is the Deputy Commissioner, Garhwa who did not

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1

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even file any written statement before the learned trial court. The records reveal that on 18.02.2025 nobody had appeared on behalf of the respondents. Today neither anybody is appearing on behalf of the respondent No. 1 nor any request for adjournment has been made by advance notice or through any other counsel during the course of hearing of this case and the matter has been heard at length in absence of the respondents.

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5. Four substantial questions of law formulated vide order dated 27.09.2018 which is quoted as under:-

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(i) Whether the learned courts below acted illegally in decreeing the suit for eviction by wrongly applying the principles of law in the matter of Eviction Suit brought under the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000?

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(ii) Whether in the absence of relationships of landlord and tenant as according to the provision of Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000, the decree for eviction is perverse and erroneous and can be sustained?

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(iii) Whether the findings of the learned court below are perverse and contrary to settled principles of law that complicated disputes of title cannot be decided in Eviction Suit?

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(iv) Whether the findings of learned court below in decreeing the eviction suit by resorting the provision U/S 14(4) of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 taking special procedure can be sustained in the eye of law when the suit was also included with other grounds including the grounds enumerated U/S 14 of the Act?

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6. The learned counsel for the appellants has submitted that the case arises out of judgment and decree dated 26.02.2015 (decree singed on 13.03.2015) passed in Eviction Suit No. 1 of 2009 by learned Civil Judge, Junior Division-II Munsiff, Garhwa against which the appeal has been dismissed vide judgment and decree dated 30.05.2017 (decree singed on 12.06.2017) passed by learned Principal District Judge, Garhwa in Eviction Appeal No. 02 of 2015 confirming the judgment passed by the learned trial court.

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7. The learned counsel has submitted that in-spite of the appellants (so called tenants) having lost in both the courts the aforesaid substantial questions of law framed by this Court are fit to be answered in favour of the appellants and the matter is fit to be remanded before the learned trial court for fresh consideration in accordance with law. He has submitted that so far as the substantial question of law No. (i) and the substantial question of law No. (iv) are concerned the first one is widely worded but essentially the substantial question of law is relating to substantial question No. (iv).

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8. The learned counsel submits that the plaintiff had filed the suit seeking a decree of eviction of the defendant on account of personal necessity and default in payment of rent and for a further direction to put the plaintiff in possession through the process of court. A prayer was also made for a decree of payment arrears of rent to the extent of Rs.1,600/- and a further prayer that defendant No. 1 be directed to pay rent till the defendant is evicted from the suit property. He submits that since the defendant No. 1 belongs to the schedule tribe category, therefore, the defendant No. 2, The Deputy Commissioner, Garhwa made party in the suit. However, essentially the matter was relating to the claim made by the plaintiff that the defendant No. 1 was a tenant in the suit property.

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9. The learned counsel has submitted that the trial court having taken into account that there was also a plea of personal necessity has referred to Section 14(4) of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000 [hereinafter referred to as of the Act] and has observed that the objection raised by the defendant cannot be taken into account as no leave was taken in terms of Section 14(4) of the Act to contest the suit.

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10. The learned counsel has further submitted that taking aforesaid aspect of the matter, the suit has been decreed and the case has not been decided in accordance with the law. The learned counsel has submitted that neither there is any finding of default nor there is any finding of personal necessity while scrutinizing the materials on

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record and essentially these issues has been decided against the defendant by referring to Section 14(4) of the Act.

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11. The learned counsel has further submitted that so far as the relationship of landlord and tenant is concerned, the learned trial court recorded a finding that the plaintiff was landlord by referring to certain materials placed on record and Exhibit-C was totally ignored by the learned trial court; the learned 1^st appellate court has simply mentioned that Exhibit-C was exhibited belatedly and was taken on record by learned trial court and there was no opportunity for rebuttable by the plaintiff as this document was filed on 14.06.2013 i.e. after examination of all the defendant witnesses.

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12. The learned counsel has submitted that Exhibit-C was a material document indicating that the land was recorded in the name of ancestors of the defendant. The learned counsel has further submitted that if the plaintiff wanted to cross examine the defendant witnesses in connection with Exhibit-C, they could have asked for further examination or cross examination of the defendant and appropriate petition could have been filed. The Exhibit-C having been taken on record could not have been simply ignored by the learned trial court as well as the learned 1^st appellate court. The learned counsel submits that on account of none consideration of Exhibit C the finding of the learned trial court that the plaintiff was the owner of the suit property and hence the landlord of the suit property and such finding confirmed by the learned 1^st appellate court is itself perverse. 13. The learned counsel submits that the learned 1^st appellate court has also not taken into consideration that the provisions of Section 14(4) of the Act would not apply on account of the fact that the suit was not only filed on account of personal necessity but also on account of default in payment. He has relied upon the judgment passed by Hon’ble Full Bench of Patna High Court reported in 1991 (2) PLJR 1 Ladu Gopal Kedia vs. Bibi Jaibunissa (Patna F.B.) paragraph 8, 9 and 10 to submit that if the landlord chooses to join more than one ground of eviction then under such circumstances

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Section 14 is not applicable and the suit has to be decided by following the general procedure.

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14. The learned counsel has submitted that by resorting to the Section 14(4) of the Act, the entire stand taken by defendant denying the relationship of landlord and tenant and consequently, denying default in payment of rent and also denying the claim of personal necessity has been totally ignored by both the courts.

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15. Further, the learned counsel has submitted that the learned courts could not have entered into complicated question of title in eviction suit and has relied upon the judgment reported in (2002) 1 SCC 90 Rajendra Tiwary v. Basudeo Prasad and Another paragraph 7 and 15.

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16. After hearing the learned counsel for the appellants, this Court finds that it is not in dispute that the suit was filed by the plaintiff on account of default in payment of rent as well as for personal necessity. This Court further finds that the learned trial court had referred to Section 14(4) of the Act on account of the sole reason that there was a plea of personal necessity. In the judgment passed by the Hon’ble full bench of Patna High Court reported in 1991 (2) PLJR (Supra) in paragraph 8, 9 and 10 the provisions of Section 11 and 14 have been considered and it has been held that if the landlord chooses more than one ground of eviction and include one or the other ground other than specified in clause (c) or clause (e) of section 11(1) of the Act, the general provisions laid down for deciding the suit shall be applicable; it has been held in paragraph 56 that if the plaintiff wants special procedure under section 14 of the Act should be followed, he must pray for eviction on the ground stated in section 11(1)(c) and (e) of the Act and if he prays for eviction also on other grounds in that suit, the Court shall have to follow the procedure laid down in the Civil Procedure Code and whether an issue should be tried as a preliminary issue, has to be decided keeping in view Order XIV, Rule 2 of the CPC and the court could not have held that it would try the issue of personal necessity as a preliminary issue. Section 11 of the Act deals

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with eviction of tenants and the grounds for eviction and section 11(1)(c) of the Act deals with Bonafide requirement of landlord and section 11 (1)(e) of the Act deals with expiry of period of tenancy and default in payment of rent is covered by section 11(1) (d ) of the Act. 17. Paragraph 9, 10 and 56 of the judgment passed by Hon’ble Full Bench of Patna High Court reported in 1991 (2) PLJR 1 [Ladu Gopal Kedia vs. Bibi Jaibunissa] (Patna F.B.) are quoted as under:-

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“ 9. From a perusal of the said provision, it would be evident that a suit for eviction can be filed by a landlord on more than one grounds as specified therein.

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Section 14 of the Act, however, provides for a special procedure for disposal of cases for eviction on the ground of bonafide requirement or on the ground of expiry of the period of lease as specified in clause V or clause V of sub-section (1) of section 11.

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Section 14, therefore, carves out an exception from the general rule that in a suit for eviction filed by the landlord against the tenant, the procedures laid down under the Code of Civil Procedure would be followed.

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10. From a combined reading of Sections 11 and 14 of the Act, therefore, it becomes clear that the special procedure laid down under section 14 of the Act can be taken recourse to only in a case where the ground for eviction is covered by clause ‘c’ or ‘e’ of sub-section (1) of section 11 of the Act. Where, however, the landlord choses to join more than one ground of eviction which may include one of the grounds specified in clause ‘c’ or clause ‘e’ of sub-section (1) of section 11 of the Act, the general provisions laid down for deciding a suit shall be applicable.

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56. To my mind, when a right has accrued to the plaintiff to file a suit for eviction of his tenant on the ground of personal necessity and/or the expiry of specific lease together with one or other of the grounds mentioned in section 11(1) and if the plaintiff includes all these grounds in the plaint, the procedure prescribed in the Code shall have to be followed. When a suit is filed for which the procedure prescribed in the Code is to be followed, party has a right to file appeal against a decree under section 96 of the Code. If two procedures are to be followed, one as provided under the Code and the other as provided under section 14 of the Act, if the defendant fails in the suit, he shall file an appeal against part of the judgment and decree relating to issue of default and revision under section 14(8) of the Act against the order of eviction on the point of personal necessity. I am, therefore, of the definite opinion that if the plaintiff wants that

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special procedure under section 14 of the Act should be followed, he must pray for eviction on the ground stated in section 11(1)(c) and (e) of the Act. If he prays for eviction also on other grounds in that suit, the Court shall have to follow the procedure laid down in the Code and whether an issue should be tried as a preliminary issue, has to be decided keeping in view Order XIV, Rule 2 of the Code. For the reasons aforesaid, the court below could not have held that it will try the issue of personal necessity as a preliminary issue. The reasoning of Lallan Kishore Saran (supra) cannot be sustained.”

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18. In the present case, both, personal necessity falling under Section 11(1)(c) of the Act and default of payment of rent falling under section 11(1)(d) of the Act having been included for ground seeking eviction, this Court is of the considered view on the basis of law laid down by the aforesaid Hon’ble Full Bench, that the general provisions laid down for deciding the suit was to be followed and accordingly, the procedure laid down under section 14 of the Act, could not have been resorted by the learned trial court to refuse to consider the written statement filed by the defendant on the ground that no affidavit required under section 14(4) of the Act was filed by the defendant no.1 and on such ground the proceeding was treated to be ex-parte against the defendant and the statements made in the plaint was deemed to have been admitted by the defendant no.1. Section 14(4) of the Act is quoted as under:-

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“14(4) The tenant on whom summons is duly served (whether by ordinary mail or by registered post) shall not contest the prayer for eviction from the premises unless he files an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court as hereinafter provided; and in default of the appearance in pursuance of the summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid.”

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19. This Court further finds that aforesaid aspect of the matter has not been considered by the learned 1^st appellate court as well.

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20. This Court also finds that the learned trial court had decreed the suit by taking the plea of default in payment of rent and personal necessity as deemed admission on the part of the defendant no.1 and the learned 1^st appellate court held that the plea of non-applicability of section 14(4) was merely a technical ground and the defendant had simply denied and the case of the defendant was of simple denial and not sustained in the eyes of law.

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21. Section 14(4) of Act essentially calls for a legal presumption of admission when the proceedings under Section 14(4) of Act is resorted to in the matter of deciding the case arising out of personal necessity or expiry of tenancy. The objection with regard to nonapplicability of the procedure laid under section 14 of the Act as the eviction suit was filed by taking the plea of default (not covered by Section 14 of the Act) and personal necessity (covered by Section 14 of the Act) is not a technical ground but it goes into the root of the matter and the applicable procedural law in the matter of acceptance of written statement and trial of suit is different when the suit is tried as regular suit as compared to when it is tried under the special procedure prescribed under section 14 of the Act. The learned trial court was not justified in holding that the suit was covered by the procedure under Section 14 of the Act and the learned 1^st appellate court was also not justified in observing that the objection to following of the procedure under section 14 of the Act was merely a technical ground. The eviction suit on ground of default and also personal necessity was required to be decided as a regular suit and procedure under section 14 of the Act was not applicable. However, it is to be noted that evidence of defendant’s witnesses were recorded but not considered by the learned trial court on the pretext that the suit was to be governed by the Section 14 of the Act and the learned 1^st appellate court recorded that the attention of the learned 1^st appellate court was drawn to one petition filed before the learned trial court which is dated 27.05.09 from perusal of which it appeared that the defendant had filed a petition for grant of leave to file written statement and a copy

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of which was also served to the other side but the perusal of ordersheet revealed that the petition was never moved before the learned trial court and Section 14 (4) of the Act states about filing of affidavit and obtaining leave from the court and mere filing of an affidavit by the defendant is not sufficient. The learned 1^st appellate court also failed to consider that applicability of section 14 of the Act is confined to two ground of eviction covered under Section 11(c) of the Actpersonal necessity and/or section 11(1)(e) of the Act – expiry of period of tenancy and does not cover other grounds of eviction and in case any other ground is included, default in payment of rent [as in the instance case] special procedure under section 14 of the Act and also presumption under section 14(4) of the Act does not apply as held in Ladu Gopal Kedia vs. Bibi Jaibunissa (supra).

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22. As a cumulative effect of the aforesaid findings, it is held that the learned courts have acted illegally in decreeing the suit for eviction by wrongly applying the principles of law under section 14 of the Act in the matter of Eviction Suit brought under the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 and thus the provision of Section 14(4) of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 taking special procedure cannot be sustained in the eyes of law when the suit also included grounds other than including the grounds enumerated U/S 14 of the Act, that is ground of default in payment of rent.

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23. Accordingly, the substantial question of law Nos. (i) and (iv) are answered in favour of the appellants and against the respondent

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No. 1(the plaintiff).

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24. So far as the other two substantial question of law No. (ii) and (iii) are concerned, this Court finds that the learned trial court, though has referred to Exhibit-C, which is the certified copy of C.S. Khatiyan in the list of documents furnished by the defendant, but there is no discussion of the Exhibit-C in the entire judgment while recording the finding that the documents and evidences produced and exhibited by the plaintiff were sufficient to suggest his entitlement for claiming title of the landlord over the land in dispute and the learned trial court

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proceeded to treat the case ex-parte by resorting to the procedure prescribed under Section 14 of the Act on account of non-compliance of provisions of Section 14(4) of the Act. Such approach has been held to be erroneous while deciding the substantial question of law no. (i) and (iv). The learned 1^st appellate court has recorded that a petition was filed by the defendant before the learned trial court with a request to mark certified copy obtained from Eviction Suit No. 2 of 2009 relating to entry of the name of Kali Oraon as it was a public document and the petition was allowed and the document was marked Exhibit-C but refused to consider the same on the ground that it was filed after examination of all the witnesses. Exhibit-C was the document by virtue of which the defendant claimed that the name of the ancestor of the defendant was recorded in the C.S. Khatiyan which was certainly important piece of evidence as the defendant was claiming title over the property.

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25. This Court is of the considered view that once the document was exhibited and marked as Exhibit-C, it was required to be considered and if so required the witnesses could be recalled for the purpose of cross examination or for further examination with respect to such document.

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26. Thus, this Court finds that the learned trial court ignored Exhibit-C and the learned 1^st appellate court also did not consider Exhibit-C on the ground that it was placed on record after examination of defence witnesses and in such circumstances the impugned judgments recorded a prima facie finding that the plaintiff was the owner of the property by ignoring exhibit-C and that plaintiff could claim to be the landlord. Such finding is perverse on account of nonconsideration of exhibit-C by both the courts. And therefore, the judgment of the learned 1^st appellate court, confirming the judgment of the learned trial court, is unsustainable in the eyes of law.

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27. So far as the jurisdiction of the learned courts to enter into the dispute relating to title is concerned, this Court is of the considered view that in order to arrive at the finding of landlord-tenant

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relationship, the court in eviction suit can incidentally examine the dispute of title over the property in order to come to a finding of landlord-tenant relationship and final determination of title is to be left for title suit dealing with the title of the property.

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28. 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 1^st appellate court affirmed the judgment. The High Court in second appeal remanded the case to the 1^st 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, it was contended by the defendant that rent controller exercised limited jurisdiction as defined by the rent control act and could not go into the question of title. The Hon'ble Supreme Court held that the sine qua non for granting relief under the suit under the rent control act was 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 1^st 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. The said judgment 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.

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29. 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

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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 . Considering the aforesaid decision, 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 dealing with the title of the property.

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30. 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 in the present case and therefore there is no illegality in incidentally entering into the issue of title to record a finding of landlord tenant relationship when the defendant disputed the title of the plaintiff and claimed to be a tenant under another person namely Nirmala Devi and claimed that Nirmala Devi was the owner of the property.

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31. This Court is of the view that the law is well settled by Hon’ble Supreme Court that the complicated questions of title cannot be decided in eviction suit but the question of title can be incidentally gone into while deciding the relationship of landlord and tenant. However, in the instant case the trial court treated the proceedings exparte by treating the proceedings as to be under special procedure under section 14 of the Act and the learned 1^st appellate court was of the view that the objection to procedure under section 14 of the Act was technical and while considering the title Exhibit-C was completely ignored which was certainly required to be considered even to incidentally consider the title in order to arrive at a finding of landlord-tenant relationship between the parties. Thus, the point regarding relationship of land-lord and tenant is required to be decided

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afresh by taking the materials on record and while deciding the relationship of landlord and tenant the dispute regarding title can be incidentally gone into by the courts. In case there are complicated disputes of title, the court can certainly observe and refuse to decide the question of title and can still decide the relationship of land-lord and tenant between the parties as the definition of land-lord and tenant is very wide .

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32. In view of the aforesaid findings the substantial question of law (ii) and (iii) are decided by holding that the relationship of landlord and tenant is required to be decided afresh as the impugned judgements are perverse ; complicated disputes of title cannot be decided in Eviction Suit but while deciding the relationship of landlord and tenant, the dispute regarding title can be incidentally gone into by the courts and in case there are complicated disputes of title, the court can certainly observe and refuse to decide the question of title and can still decide the relationship of land-lord and tenant between the parties as the definition of land-lord and tenant is very wide.

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33. As a consequence of the aforesaid findings and answer to all the substantial questions of law, the impugned judgements and decree are set-aside and the matter is remitted back to the learned trial court for fresh consideration in accordance with law.

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34. This appeal is accordingly allowed in aforesaid terms.

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35. The parties to cooperate in early disposal of the case. As the eviction suit is of January 2009, the learned trial court shall also make all endeavor for early disposal of the case.

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36. Pending interlocutory application, if any, is closed.

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37. The parties to appear before the learned trial court on 1^st of July 2025 at 11.00 am.

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38. The parties to cooperate in early disposal of the case.

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39. Office is directed to forward a soft copy of this judgement to the learned counsel for the appellants, respondent no.1 and to the office of learned Advocate General, Jharkhand for needful.

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40. Let this judgement be communicated to the concerned court through FAX/E-mail.

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(Anubha Rawat Choudhary, J.)

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Rakesh/-

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14

Shanti Kunwar And Ors. v. Parashnath Keshri And Anr.

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