Sunil Kumar Vs Sunaina Devi

2025:JHHC:10509

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 453 of 2016

Sunil Kumar, S/o Chandrika Kumar, Proprietors M/s Kumar General Stores, Main Road Adityapur Chowk, P.O. & P.S. Adityapur, District Seraikela - Kharswan

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… … Defendant/Appellant/Appellant

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Versus

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(a) Dharamveer Kishore Singh, S/o. Late Late Ram Narayan Singh,

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(b) Rakesh Kumar,

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(c) Rabi Prakash Singh, ii & iii both sons of Late Sunaina Devi & Dharamveer Kishore Singh

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(d) Rekha Singh, D/o Late Sunaina Devi & Dharamveer Kishore Singh and W/o Kaushal Kishore Singh

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(e) Annu Devi, D/o Late Sunaina Devi & Dharamveer Kishore Singh and W/o Shri Suresh Kumar All R/o Patna Line, Baridih Basti, P.O. – Baridih Colony, P.S. – Sidgora, Town – Jamshedpur, Dist: East Singhbhum, Jharkhand (Substituted vide order dated 14.05.2024)

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… … Plaintiffs/Respondents/Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant : Mr. Mahesh Tewari, Advocate : Mr. Abhishek Kr. Dubey, Advocate : Mr. Atif Anwar, Advocate : Mr. Yuvraj Singh, Advocate For the Respondents : Mr. Sidhartha Roy, Advocate : Mr. Abhishek Kumar, Advocate

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Lastly heard on 24.03.2025

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21 /07.04.2025 This second appeal has been filed against the judgment and decree dated 30.05.2016 and 09.06.2016, respectively, passed by learned District Judge – I, Seraikela, in Eviction Appeal No.03 of 2006, whereby the appeal was dismissed on contest. The judgment and decree of the trial court has been passed on 01.03.2006 and 10.03.2006 respectively by learned Munsif, Seraikela in Title Eviction Suit No.04 of 2003 in favour of the plaintiff and against the defendant. 2. This second appeal has been heard of following substantial questions of law:

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“(i) Whether in view that no issue has been framed to the effect

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as to whether there was any default of payment of rent, the

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court below could have decreed the eviction suit on the ground of default?

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(ii) Whether in absence of any finding of default and payment of rent by the appellant, the court below could have decreed the suit on the ground of default?

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(iii) Whether the finding of the court below that the plaintiff is the landlord can be sustained when the property was jointly purchased by the plaintiff with others and the plaintiff did not produce any authority issued in her favour by the other copurchasers, authorizing her to be the landlord?

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(iv) Whether while deciding the Eviction Suit under the provisions of the Jharkhand Building (Lease, Rent and Eviction Control) Act, 2000, the learned trial court committed perversity by deciding the title of the plaintiff and drawing a presumption that since the plaintiff is having title, so the defendant is a tenant of the plaintiff?

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(v) Whether both the courts below have committed perversity by arriving at the finding of fact that there exists the relationship of landlord and tenant between the plaintiff and the defendant by misreading the evidence in the record?”

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3. The learned counsel has placed the plaint and the written statement and stated that the suit was filed for eviction on account of default in payment of rent and the schedule of the property was as under:

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“Adityapur Ward No.7, P.O. and P.S. Adityapur, District Seraikella-Kharswan a Shop Room commonly known as Kumar General Stores standing on portion of New Plot No. 153 recorded under New Khata No.34 bounded by North: Main Road, South: S.T.D. Booth Let out to Punam Tiwary, East: Ajay Sawas's shop named Bath well, West: Nij passage.”

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4. The learned counsel has submitted that as per the plaint, the plaintiff Sunaina Devi claimed to be the owner and landlady of the suit property and further claimed that by registered sale deed no.3296 dated 21.11.1984 (Exhibit – 1) the plaintiff along with Kaushal Kishore Singh and Nisha Devi purchased 1 katha 8 dhur in new plot no.153 and 12 katha 8 dhur in new plot no.152 from the heirs of Vidyadhar Pati. The further case of the plaintiff was that after purchasing the aforesaid land, the plaintiff and others co-owners constructed several shops rooms, passage, well etc. and most of the shop rooms were let out on rent. It was stated that by mutual arrangement amongst the co-owners, 11 shops standing on portion of Plot no.153 was allotted in the share of the plaintiff and she through her husband has been managing the entire affairs of 11 shop rooms.

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5. The specific case of the plaintiff was that the defendant was inducted as tenant by the plaintiff at monthly rent of Rs.400/- in which he was running a business in the name and style of “M/s Kumar General Store” since the year 2000; the monthly rent was enhanced to Rs.500/-. The defendant was said to be paying regular rent to the plaintiff but since January 2003, he stopped paying rent to the plaintiff. In spite of repeated demand, the defendant did not care to pay the rent for which a lawyer's notice was sent through registered post on 10.09.2003 and the defendant had sent the reply by denying the existence of relationship of landlord and tenant.

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6. The plaintiff stated that the cause of action for the suit arose from the month of February 2003 when the defendant did not pay monthly rent for the month of January 2003, and the default continued. The suit was valued at Rs.6000/- being equivalent to one year’s rent and the plaintiff also claimed eviction and recovery of due rent from January 2003 till eviction.

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7. A written statement was filed denying the relationship of landlord and tenant. It was stated that the plaintiff brought the suit claiming herself to be the owner over the suit premises but no relief was sought by her to declare her title. The suit was barred by nonjoinder of necessary parties and there was no relationship of landlady

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and tenant between the plaintiff and defendant at any point of time. It was also asserted that the description of property in the schedule of the plaint was vague. It was the specific case of the defendant that the defendant was in occupation of the suit premises as a tenant under Nirmala Devi, wife of Virendra Singh and used to pay the rent to her on each and every month @ Rs.300/- only excluding electricity charges. The factum of issuance of lawyer's notice and its reply stood admitted. It was the case that Nirmala Devi was a necessary party in the suit, and it was further stated that the non-payment of rent, as alleged, does not arise as the defendant is not tenant under the plaintiff.

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8. It was the specific case of the defendant that as per their knowledge, the suit land along with other land consisting of 11 shop rooms were in occupation of Chandrawati Devi, wife of late Ram Kishore Singh and her daughter Punam Devi and the landlady of the defendant was Nirmala Devi who had purchased the same from Chandrawati Devi and Punam Devi by means of registered sale deed dated 23.09.1993 (Exhibit D) and since then Nirmala Devi remained in possession of the property i.e. 11 shops rooms standing in the portion of new plot no.153 and 162 of Khata No.34 of Mauza Adityapur corresponding to RS Khata No.48 and RS Plot No.1298. It was also stated in the written statement that complicated question of title with respect to the suit property cannot be decided and the suit was not maintainable and fit to be dismissed.

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9. Following issues were framed by the learned trial court.

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“1). Whether the suit is maintainable in its present form and for the reliefs claimed?

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2). Whether the plaintiff has got any cause of action to file this suit?

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3). Whether the suit is barred by law of limitation?

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4). Whether the suit is barred by specific relief Act?

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5) Whether there exists any relationship of land lord and tenant between the plaintiff and the defendant?

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6) Whether the suit has been properly valued?

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7) Whether the suit is barred for non-joinder of parties?

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8). Whether Nirmala Devi and not the plaintiff is the Land lord of the defendant?

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9). Whether the plaintiff is entitled to any relief as claimed?”

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10. The parties led both oral and documentary evidence. All the issues were decided in favour of the plaintiff.

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11. So far as the learned 1^st appellate court is concerned, the points for determination were as follows:

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(a)Whether the plaintiff was entitled to bring any eviction suit against the defendant being co-sharers of the suit premises?

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(b)Whether the co-sharers of the suit premises are necessary parties to run the suit for eviction against the defendant?

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(c)Whether there is exist any land lord, tenant relationship between the plaintiff with defendant?

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12. Before 1^st appellate court, the defendant/appellant has also filed additional evidence , that is, C.C of the judgement and decree of T.S. No.31/2003 dated 13.02.2012 in the matter of Sunaina Devi Versus Sunil Kumar and others which were marked as Ext- E and F respectively.

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13. All the points of determination were decided against the defendant and in favour of the plaintiff.

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Arguments of the Appellant (defendant)

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14. The learned counsel for the appellant, while referring to the substantial question of law Nos. (iv) and (v) as quoted above has submitted that the learned trial court has considered Exhibit - D, by virtue of which the defendant was claiming that the property belonged to Punam Devi and Chandravati Devi and held that the said document was not valid.

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15. The learned counsel submits that the court, in the summary proceeding under suit for eviction relating to landlord-tenant relationships, has no jurisdiction to declare any title deed as invalid. He further submits that the plaintiff exhibited a document, namely Exhibit - 2, which is a sale deed executed by Chandrawati Devi and Punam Devi in favour of Sunaina Devi, dated 06.09.2000, but the said exhibit was beyond any pleadings in the plaint, and thus, the learned

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courts have taken Exhibit 2 into consideration, which was beyond the pleadings.

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16. The learned counsel has further submitted that the learned first appellate court referred to Exhibit - E, which was the additional evidence produced on behalf of the defendant before the first appellate court, and recorded that the plaintiff was the co-owner of the property. He submits that there were no such pleadings that the plaintiff was claiming to be the landlord by virtue of being the co-owner of the property. Rather, it was the specific case of the plaintiff that she was the exclusive owner of the property by virtue of arrangement amongst the owners of the property.

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17. In such circumstances, the finding of the learned first appellate court that plaintiff was the landlord, being the co-owner of the property, was beyond the pleadings of the parties. The learned counsel submits that the learned courts first decided the title dispute, which was beyond their jurisdiction, and then have drawn a presumption that the plaintiff was the landlord of the defendant. It is submitted that this approach was erroneous and contrary to the provisions of law.

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18. The learned counsel has relied upon the judgments reported in ( 2015) 9 SCC 755 (Nandkishore Lalbhai Mehta Vs. New Era Fabrics Private Limited and Ors.) paragraph 39, and (2018) 11 SCC 652 (Shivaji Balaram Haibatti Vs. Avinash Maruthi Pawar) paragraph 26, to submit that the parties cannot be permitted to travel beyond their pleadings. The learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court reported in (2002) 1 SCC 90 (Rajendra Tiwary Vs. Basudeo Prasad and Anr.) paragraphs 7, 8, 15 and 16, to submit that there is no scope for entering into title disputes in the matter of dispute regarding landlord and tenant.

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19. With respect to the substantial questions of law Nos. (i) to (iii) , the learned counsel submits that no issue was framed with regard to default in payment of rent, and therefore, the court could not have decreed the eviction suit on the ground of default. Consequently, in absence of any finding of default in payment of rent by the defendant, the court could not have decreed the suit on the ground of default. The

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learned counsel submits that there is no finding by the learned court that the defendant had defaulted in payment of rent.

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20. The learned counsel for the appellant has referred to Exhibit – E (filed at first appellate stage) and submitted that although in the Title Suit No.31 of 2003 as many as 11 issues were framed including the issue no.9 as to whether the defendant no.1 of the said case was in occupation of the suit property as a tenant under the landlady Nirmala Devi but the discussion made by the learned 1^st appellate court in the present proceedings is ex facie contrary to the findings which has been returned by the court in Title Suit No.31 of 2003. He has referred to issue no.9 in the Title Suit No.31 of 2003 and submitted that the learned court has recorded the finding on the ground that the defendant no.1 [i.e. the present appellant] had not produced even chit of document to show the relationship of landlady and tenant between Nirmala Devi and defendant no.1 [i.e. the present appellant] and on that ground, it was decided that there was no relationship of landlord and tenant between Nirmala Devi and defendant no.1 [i.e. the present appellant]. The learned counsel has also submitted that Nirmala Devi was not even a party in the said Title Suit No.31 of 2003.

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21. The learned counsel has submitted that though in the present suit and also in Title Suit No.31 of 2003, the defendant did not adduce any evidence showing relationship of landlord and tenant with Nirmala Devi but at the same time in the present case, the plaintiff who claimed the relationship of landlord and tenant with the defendant has also not produced any document to show the relationship. He has submitted that it was for the plaintiff to prove his case and any defect or any lacuna in the evidence of the defendant will not be a ground to decide the suit in favour of the plaintiff.

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Arguments of the Respondents (Plaintiff)

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22. The learned counsel for the respondents has referred to Exhibit - 1 which is dated 21.11.1984 and submitted that Exhibit - 1 was executed by Vidyadhar Pati in the name of Nisha Devi and Sunaina Devi. He has submitted that the property sold vide Exhibit-1 was with regards to both, new plot no.152 and new plot no.153 and it is not in

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dispute between the parties that the concerned 11 shops were constructed in portion of new plot no.153. Admittedly, Chandrawati Devi and Punam Devi are not the purchaser of this property in Exhibit-1 and it is not in dispute that the property originally belonged to Vidyadhar Pati.

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23. The learned counsel has submitted that there was a specific pleading in the plaint that in the year 1971, the husband of the plaintiff and three others [that is, husband of Sunaina Devi-the plaintiff, Kaushal Kishore Singh, Nisha Devi and Chandravati Devi] had purchased an adjoining property to the suit property from Vidyadhar Pati. The learned counsel further submits that a portion of the property from the property of the sale deed of 1971 was purchased by the plaintiff vide registered deed dated 04.09.2002 (Exhibit 2) whereby the plaintiff had purchased the share of Chandrawati Devi and the property vide Exhibit 2 is not the present suit property. Therefore, there was no occasion for the plaintiff to refer to Exhibit - 2 in the plaint. It is submitted that in view of the written statement filed by the defendant disputing the title of the plaintiff with respect to the suit property, Exhibit - 2 was filed to show that the plaintiff is the owner of the adjoining property to the suit property also and the plaintiff has purchased the entire share of Chandrawati Devi from the property which was jointly purchased by Chandrawati Devi and three others vide the sale deed of 1971 and the said property which was purchased vide Exhibit - 2 is just an adjoining property to the suit property.

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24. The learned counsel has submitted that the defendant has come up with a plea in the written statement that Nirmala Devi who was landlady had purchased the suit property from Chandrawati Devi and her daughter Punam Devi by virtue of registered deed dated 23.09.1993 (Exhibit D) along with other 10 shops including the suit premises which constitutes only 1 shop amongst 11 shops.

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25. The learned counsel has submitted that with respect to the same suit premises, there are two sale deeds one is Exhibit 1 dated 21.11.1984 the other is Exhibit D dated 23.09.1993. He submits that in Exhibit D, Chandrawati Devi and Punam Devi were the vendors of the

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Nirmala Devi [the alleged landlady of the defendant] but they are not the purchasers of the property from Vidyadhar Pati although admittedly the suit property originally stood in the name of Vidyadhar Pati. The purchasers under sale deed dated 21.11.1984 Exhibit 1 are Kaushal Kishore Sinha, Nisha Devi and Sunaina Devi and Sunaina Devi is the plaintiff in the present case and vendors are the two sons and wife of late Vidyadhar Pati [Dilip Kumar Pati, Kishore Kumar Pati and Shanti Devi].

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26. With respect to the substantial question of law nos. (iii) and (iv) the learned counsel submits that whenever there is a dispute in connection with title of the property with respect to the landlord is concerned, the court may enter into the same and only record a prima facie finding. He submits that on the face of the Exhibit - 1 and Exhibit - D, the learned courts have considered and have recorded only a prima facie finding that by virtue of Exhibit – D, Nirmala Devi could not have got the title and therefore, Nirmala Devi was not the landlady.

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27. The learned counsel submits that since the defendants were claiming that Nirmala Devi was their landlady by virtue of Exhibit-D, the said plea having been demolished, the relationship of landlord and tenant was rightly decided by the learned courts.

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28. The learned counsel has further submitted that the defendants had taken a stand in their written statement that the property came in possession of Chandrawati Devi and Punam Devi, but neither there is any foundational date with respect to such a stand nor there is any evidence as to how Chandrawati Devi and Punam Devi came in possession/ownership of the property so as to entitle them to sell the property to Nirmala Devi.

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29. The learned counsel submits that both the courts have scrutinized the materials on record and have returned concurrent findings and in absence of any perversity, there is no scope for reappreciating the materials on record and coming to a different finding. He has submitted that the appellant in their arguments have failed to demonstrate that there was any perversity in matter of

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appreciation of evidence by both the courts. He submits that the status of the appellant as tenant is not in dispute, and the appellant does not claim to be the owner of the property.

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30. The learned counsel has submitted that Exhibit - E was brought on record at the instance of the defendants at the first appellate stage and in that case (Exhibit-E) a specific issue was framed as to whether the defendant no.1, who is the sole defendant in the present case, was a tenant under Nirmala Devi. He submits that the said finding has been recorded against the defendant and such finding is binding so far as the parties before this Court are concerned as both of them were party in the said suit (Exhibit-E).

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31. The learned counsel has also submitted the Issue No.8 was also decided in Exhibit - E wherein the issue was as to whether the plaintiff of the said case Sunaina Devi was the exclusive owner of the suit property. The claim of exclusive ownership with respect to the suit property was declined but at the same time, it was decided that she was the co-owner of the suit property. He submits that this came to surface at the appellate stage of this proceedings and there was no occasion for the plaintiff to plead these facts in the plaint. He has submitted that the plaintiff had claimed in the plaint that she was the co-owner of the suit property but the same was subsequently partitioned.

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32. The learned counsel has relied upon a judgment passed by this Court in Civil Revision No.20 of 2008 (Shyamdeo Prasad Vs. Md. Quurban Hussain Hawari and Ors.) decided on 16.04.2014 wherein one of the points for consideration as recorded in internal page no.7 of the judgment was “whether suit for eviction brought by some of the co-owners for ejectment of tenant is maintainable?”

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33. He has submitted that the said issue was answered by this Court in paragraph 12 which is quoted as under:

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“12. In view of the observations referred to above in the cited Judgements and also considering the view taken in the case of Birendra Kumar Singh (Supra), there is no doubt that some of the co-owners have every right to file a suit for evicting a tenant who has incurred liability to be evicted under the Act. Therefore, the suit brought by the plaintiffs has rightly been

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held maintainable by learned Additional Munsif and that needs no interference.”

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34. He submits that there is no legal bar in bringing the suit for eviction by one of the co-owners and it is not necessary that all the coowners should become party in the suit.

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35. With respect to the substantial question of law no.(i), he has submitted that admittedly no issue was framed as to whether there was any default in payment of rent but at the same time, the specific case of the plaintiff was that the suit for eviction was filed on account of default in payment of rent. This fact was disputed by the defendant in the written statement and both the parties have adduced evidence in connection with the same and findings have been recorded.

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36. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in AIR 1963 SC 884 (Nedunuri Kameswaramma Vs. Sampati Subba Rao) and has submitted that in the said case also, issue was not framed. However, the Hon’ble Supreme Court observed that no doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all evidence not only in support of the contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was mis-trial to vitiate the proceedings. The relevant paragraph is quoted as under:

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“ 5. On the first point, we do not see how the suit could be ordered to be dismissed, for, on the facts of the case, a remit was clearly indicated. The appellant had already pleaded that this was jeroyti land, in which a patta in favour of her predecessors existed, and had based the suit on a kadapa, which showed a sub-tenancy. It was the respondent who had pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights through his predecessors for over a hundred years, and had become an occupancy tenant. Though the appellant had not mentioned a Karnikam service inam, parties well understood that the two cases opposed to each other were of Dharmila Sarvadumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence

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not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We, therefore, proceed to consider the central point in the case, to which we have amply referred already.”

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Rejoinder argument of the Appellant.

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37. In response, the learned counsel for the appellant has submitted that the description of the suit property was also vague and the objection in that regard was specifically taken in the written statement and this has a bearing in the case.

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Findings of this Court.

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38. So far as substantial question of law no.(i) is concerned, this Court finds that, admittedly, no issue was framed to the effect as to whether there was any default in payment of rent. However, the solitary cause of action for filing the suit was default in payment of rent. The plaintiff had also prayed recovery of arrears of rent from January 2003 till eviction.

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39. The specific case of the defendant was that the defendant was not a tenant under the plaintiff and a plea was taken that in absence of landlord-tenant relationship, there was no question of payment of rent. Upon going through the plaint, it is evident that the only cause of action which was disclosed in the plaint was non-payment of rent since January, 2003 and an issue was framed by the learned trial court as issue no. (ii) as to whether the plaintiff had a valid cause of action. 40. Since, the sole cause of action for the plaintiff was relating to default in payment of rent, therefore, the cause of action certainly covered the issue as to whether there was any default of payment of rent by the defendant.

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41. Moreover, both the parties adduced evidence on the point of default in payment. The defendant completely denied the relationship of landlord and tenant and therefore, there was no occasion on the part of the defendant even to say that they were not defaulters. The issue as

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to whether there was relationship of landlord and tenant was the most contested issue. The defendant had taken a specific plea that the defendant was not the tenant under the plaintiff, but was a tenant under Nirmala Devi.

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42. In the aforesaid circumstances, this Court is of the view that merely because no specific issue was framed as to “ whether there was any default in payment of rent by the defendant” , the parties had joined issues with respect to the tenancy and also requirement/default of payment of rent, if any. In view of the judgment passed by Hon'ble Supreme Court as relied upon by the learned counsel for the respondents reported in AIR 1963 SC 884 (supra), whose relevant paragraph has already been quoted above, this Court is of the considered view that the absence of an issue in the present case as to whether the defendant was in default of payment of rent is not fatal to the proceedings. The parties certainly knew the rival case and they led all the evidences to support their respective case particularly with regards to the cause of action of default in payment of rent.

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43. As a cumulative effect of the aforesaid findings, the aforesaid substantial question of law no. (i) is decided against the appellant and in favour of the respondents.

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44. So far as Substantial Question of Law No. (ii) is concerned, it is a sequel to Substantial Question No. (i). This Court is of the view that the learned Appellate Court has primarily considered the point as to whether there existed landlord-tenant relationship between the parties and in view of the specific stand of the defendant that the plaintiff was not the landlord but Nirmala Devi was the landlord and in view of the finding that the plaintiff was the landlord with respect to the suit property and not Nirmala Devi, the default in payment of rent automatically followed as it was never the case of the defendant that the defendant has been making payment of rent regularly to the plaintiff and it was his specific case that he was paying rent to Nirmala Devi which he could not prove.

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The learned 1^st appellate court has recorded a clear finding upon appreciation of the materials on record that there exists relationship of

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land lord and tenant between the parties the burden lying upon the tenant to prove that he was regularly paying rent but the defendant failed to prove that he was regularly paying rent and had not made any default which was accepted as a ground to evict the defendant. The learned 1st appellate court also found that the plaintiff had a cause of action for suit and the suit was maintainable in its form and the suit was not barred by any limitation or by Specific Relief Act.

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45. Thus, there is a clear finding of default in payment of rent while holding that there was a valid cause of action to file the suit and thus it cannot be said that in absence of any finding of default in payment of rent by the appellant, the court below have decreed the suit on the ground of default.

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46. In view of the aforesaid findings, the substantial question no.(ii) is also decided against the appellant and in favour of the respondent.

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47. So far as Substantial question no.(iii) is concerned, this Court finds that the learned court has recorded a finding that the suit property was jointly purchased by the plaintiff with others and it is an admitted fact that the plaintiff did not produce any authority issued in her favour by other co-purchasers authorizing her to be the landlady. The plaintiff has been held to be co-owner but not the exclusive owner of the suit property. The point is whether the suit for eviction was maintainable at the instance of one of the co-owners of the suit property. This issue is squarely covered by the judgment passed by this Court in Civil Revision No.20 of 2008 (Supra), wherein one of the points which fell for consideration was whether suit for eviction brought by some of the co-owners for ejectment of tenant is maintainable and ultimately it was held that the suit filed by one of the co-owners is maintainable. The relevant paragraph of the judgment has been quoted above in the submission of the learned counsel for the plaintiff-respondent.

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48. In view of the aforesaid finding, the Substantial question of law no.(iii) is also decided against the appellant and in favour of the

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respondents and it is held that suit for eviction by one of the coowners of the property was maintainable.

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49. So far as Substantial question no.(iv) and (v) are concerned, it is an admitted position from the side of the defendant that the defendant was a tenant over the suit premises but it was in dispute as to who was the landlord of the defendant. The plaintiff claimed to be the landlord and on the other hand, the defendant claimed that another person, namely, Nirmala Devi was the landlord.

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It is important to note that at the 1^st appellate stage, the defendants had produced additional evidence by way of Exhibits E and F, which were certified copies of the judgment passed in Title Suit No.31 of 2003 and its decree respectively. The decree in the original suit being Title Suit No. 31 of 2003 reveals that the plaintiff of this case and plaintiff of the said case was one and the same. The defendant in the present suit was the defendant no.1 in Title Suit No.31 of 2003 and the said Title Suit No.31 of 2003 was, interalia, filed for a declaration that the plaintiff is the owner of the suit premises and also for a mandatory injunction directing the defendant No. 1 to unlock the suit premises. In the said case, one of the issues i.e. issue No.9 was “is the defendant No. 1 is in occupation of the suit property as a tenant under the landlady Nirmala Devi? In Title Suit No.31 of 2003, the said issue No. 9 was decided as follows:

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“Issue no.9 – It is specifically pleaded by defendant no.1 in his written statement that he is in occupation of the suit premises and one other room as a tenant under land lady Nirmala Devi. Admittedly, and also by the documentary evidence produced by the plaintiff the other such room is one in which a shop is or was seen by the defendant no.1 in name and style of M/s Kumar General Stores and there as eviction suit and appeal under Bihar Building (L.R.E.) Control Act between the present plaintiff and defendant no.1 which were decided against the present defendant no.1. The said documents are Exhibit – 2, 2/1, 3 and 3/1 in this suit. The said suit and Appeal under Bihar Building (L.R.E.) Control Act was properly instituted suit between the parties and the defendant no.1 had taken plea of being Nirmala Devi a L.lady of the suit premises but the same was turned down. Hence, the said plea involving relationship of

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land lord/lady and tenant can’t be agitated by the defendant no.1 in this suit for title. Moreover, the defendant no.1 has not produced even a chit of document to show relationship of land lady and tenant between Nirmala Devi and Defendant No.1. Hence this issue is decided as against the defendant no.1.”

¶136

50. It is also important to note that while deciding issue Nos. 8, “is the plaintiff owner of the suit property” , the learned court in title Suit No. 31 of 2003, has held that the plaintiff failed to prove the mutual arrangement of the year 1993 as pleaded in the plaint. Hence, it was held that the plaintiff failed to prove her exclusive ownership over the suit premises excluding the other co-purchaser or the subsequent purchaser if any.

¶137

51. This Court finds that in the present case also, the plaintiff had claimed that there was a partition and she became the exclusive owner of the suit properties, but the plea of exclusive ownership was rejected in the aforesaid Title Suit No. 31 of 2003, meaning thereby her status stood as co-owner of the suit property, which is also the finding by the learned court in the present case.

¶138

52. In the present case, the judgment passed in Title Suit No. 31 of 2003 was filed as additional evidence in the 1^st appellate court case by the appellant themselves, which was taken on record and the learned 1^st Appellate Court took into consideration the additional evidence and decided the appeal against the defendant/appellant.

¶139

53. This Court finds that the learned Trial Court in the present case had considered the issue of relationship of landlord and tenant only incidentally, which was certainly within the domain of the learned Courts. The learned 1^st Appellate Court had taken into account the aforesaid additional evidence filed on behalf of the defendant/appellant themselves, wherein it was held that Nirmala Devi was not the landlord of Sunil Kumar (the Defendant No. 1), and same Sunil Kumar who is the sole defendant of the present case claiming that Nirmala Devi is his landlady and the plaintiff Sunaina Devi is not his land lady that too without producing any chit of paper or even producing Nirmala Devi as a witness. In Title Suit No.31 of

¶140

16

¶141

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2003 also Sunil Kumar ( the defendant no. 1) had not produced even a chit of document to show relationship of landlady and tenant between Nirmala Devi and Defendant No.1. Neither in the present case nor in the Title Suit No.31 of 2003 Sunil Kumar could produce any paper to even prima facie show that he was the tenant under Nirmala Devi. Further, the learned 1^st appellate court in the present case has clearly recorded the evidence of P.W.1, who has stated that the defendant was paying rent to Dharamvir Kishore Singh (husband of the plaintiff), but stopped to pay rent from January 2003; Dharambir Kishore Singh (the husband of the plaintiff) was also examined as P.W. 3 and has also stated that the defendant stopped paying rent from January 2003. P.W. 2 had also stated that the defendant was regularly paying rent but since January 2003 he stopped paying rent to the plaintiff.

¶143

54. In Title Suit No.31 of 2003, another issue which was framed was issue no.8 i.e. “Is the plaintiff is the owner of the suit property”. While deciding the said issue, it has been specifically held in paragraph 22 of the said judgment that the plaintiff failed to prove that she was the exclusive owner of the suit property and the plea of mutual arrangement of the co-owners of the suit property was rejected in the following manner:

¶144

“22. In view of the discussion above made in the proceeding paras, I

¶145

find that the plaintiff has failed to prove the mutual arrangement of year 1993 as pleaded by him in the plaint. Hence, I decide and hold that the plaintiff has failed to prove her exclusive ownership over the suit premises excluding the other co-purchasers or the subsequent purchasers, if any. accordingly, this issue is decided as against the plaintiff.”

¶146

55. In the present case also, the perusal of the plaint reveals that the plaintiff had claimed mutual arrangement with the co-owners of the suit property and claimed that pursuant to such mutual arrangement she became the exclusive owner of the suit property. However, in view of specific finding recorded in para 22 of the judgment in title suit no.31 of 2003, the plea of being the exclusive owner of the suit property was no longer available to the plaintiff of the present case and accordingly, it has been rightly held by the learned court that plaintiff was the co-owner of the suit property and consequently, it

¶147

17

¶148

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cannot be said that such finding is beyond the pleadings of this suit. The learned courts in the present case had recorded a finding with regard to title of the plaintiff based on registered sale deed no.3296 dated 21.11.1984 (Exhibit 1) in favour of the plaintiff and other two co-owners from the legal heirs of Vidyadhar Pati, who was the original owner of the suit property and when the defendant claimed that Nirmala Devi was the owner of the suit property by virtue of another registered sale deed executed by Chandrawati and Punam Devi, the learned court considered the material on record as placed by the parties and incidentally recorded a finding in favour of the plaintiff with regard to title of the property to come to a finding of landlord tenant relationship and also recorded a finding that the defendant used to pay rent to the husband of the plaintiff but defaulted from January 2003. It is not in dispute that the defendant was a tenant but denied that plaintiff was the landlady.

¶150

56. 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 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. 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.

¶151

57. 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 first appellate court affirmed the judgment. The High court in second

¶152

18

¶153

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¶154

appeal remanded the case to the first 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 first 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.

¶155

58. 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.

¶156

59. This Court finds that the learned court, in the present case, has not drawn any presumption with regard to the title of the plaintiff, but has considered the materials and decided the issue incidentally as a

¶157

19

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dispute was raised by the defendant that Nirmala Devi, and not the plaintiff, was his landlady.

¶160

60. In view of the aforesaid facts and circumstances, this Court is of the considered view that the learned Trial Court as well as the learned Appellate Court were well within their jurisdiction to enter into the incidental question of title of the suit premises and have rightly recorded the finding of landlord-tenant relationship.

¶161

61. In view of the aforesaid findings both the substantial question of law (iv) and (v) are decided against the appellant and in favour of the respondents. It is held that the learned courts have not committed any perversity by deciding the title in favour of the plaintiff and has not decided the issue on any presumption. The findings of title as incidental issue and the findings of landlord-tenant relationship are based on appreciation of materials on record. There is no perversity or misreading of the materials on record.

¶162

62. All questions of law having been decided against the appellant and in favour of the respondents, there is no merit in this second appeal, which is hereby dismissed.

¶163

63. Pending interlocutory application, if any, is dismissed as not pressed.

¶164

64. Let a soft copy of this order be communicated to the court concerned through FAX/email.

¶165

(Anubha Rawat Choudhary, J.)

¶166

Saurav/

¶167

20

Sunil Kumar v. Sunaina Devi

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Sunil Kumar v. Sunaina Devi

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