Neera Devi And Anr. Vs Pappu Mandal And Ors.

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(2025:JHHC:10434)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Second Appeal No. 555 of 2017

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Neera Devi W/o Late Parmanand Sharma

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Jai Kumar @ Sonu Kumar S/o Late Parmanand Sharma Both residents of Baidyanathpur, Deoghar, Dumka Road, near Bhagwati Rice Mill, P.O.- B. Deoghar, P.S.- Kunda, Dist.Deoghar … … Defendants/Appellants/Appellants

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-Versus-

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Pappu Mandal

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Dipak Mandal

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Shiv Kumar Mandal

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Vicky Kumar Mandal

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Vikash Mandal

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Pintu Kumar

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All sons of Late Jagarnath Mandal

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Sheela Devi W/o Late Jagarnath Mandal, All residents of Village- Baidyanathpur, P.O.- B. Deoghar, P.S.- Kunda, Sub Division and District- Deoghar

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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 Appellants : Mr. Rajeev Ranjan Tiwary, Advocate : Mr. Ranjeet Kumar Tiwary, Advocate : Mr. Krishna Prajapati, Advocate For the Respondents : Mr. Lakhan Chandra Roy, Advocate

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27 /17.03.2025 Heard the learned counsel appearing on behalf of the parties.

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2. This second appeal has been filed against the Judgment dated 18^th August, 2017 (Decree signed on 26.08.2017) passed by the learned District Judge-V, Deoghar in Title Appeal No.32 of 2015 confirming the judgment of the Trial Court dated 29.09.2015 (Decree signed on 08.10.2015) passed by the learned Civil Judge, (Senior Division-I), Deoghar in Title (Eviction) Suit No.02 of 2011 whereby the suit filed by the plaintiffs seeking eviction of the defendants on ground of default in payment of rent and personal necessity has been decreed.

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3. The defendants are the appellants before this Court against the concurrent findings recorded by both the courts.

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4. This second appeal was admitted for final hearing vide order dated 21.06.2018 by framing following substantial questions of law:-

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(2025:JHHC:10434)

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“I. Whether the genuineness, correctness, existence and execution of the unregistered lease deed dated 08.09.1989 (Ext-1) which was proved by PW-3, Binod Mandal, Advocate Clerk, is doubtful and questionable and therefore the judgment and decree of eviction passed by both the learned Court below is unsustainable in law?

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II. Whether the learned Lower Appellate Court has gravely erred in law by shifting the onus of proving the unregistered deed of lease dated 08.09.1989 (Ext1) upon the Defendants which is contrary to the well settled proposition of law that the plaintiff has to stand on his own legs and he cannot derive any benefit from the weakness of Defendant’s case?”

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Arguments on behalf of the appellants

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5. The learned counsel for the appellants while referring to the lease deed dated 08.09.1989 (Exhibit-1) submitted that admittedly the lease deed was an un-registered document and the same was alleged to have been entered into between Jagarnath Mandal S/o Late Karu Mandal and Parmanand Sharma S/o Tarachand Sharma who at the time of filing of the suit had expired and the said lease deed was proved by PW--3 Binod Mandal, an advocate clerk. He has referred to the evidence of PW-3 to submit that PW-3 had stated that Notary Public before whom the lease deed was executed is alive, but Notary Public did not appear before the court to depose. He also submitted that PW-3 had stated in his evidence on 19.09.2012 that he is 40 years of age and since the lease deed was dated 08.09.1989, he would have been only 17 years of age. The learned counsel submitted that his deposition does not reveal that he was working as an advocate clerk on the date of execution of the lease deed, though he has deposed that all the persons had signed before him. The learned counsel submitted that the evidence of PW-3 is highly unreliable and therefore the substantial question of law no. I is fit to be answered in favour of the appellants and it may be held that un-registered lease deed dated 08.09.1989 (Exhibit-1) was not duly proved and no finding could have been recorded by referring to the lease deed dated 08.09.1989.

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However, during the course of argument, it transpired that Exhibit-1 was marked without any objection from the side of the defendants and further PW-3 had deposed that all the persons had signed in his presence, but there has been no cross examination of PW-3 on the aforesaid point.

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6. The learned counsel further submitted that it was throughout the case of the defendants that the lease deed was forged and fabricated, but the plaintiffs did not take any step for the purposes of getting the signature of Parmanand Sharma examined through a handwriting expert.

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7. He submitted that this takes him to the second substantial question of law and he submitted that the learned 1^st Appellate Court has gravely erred in law by shifting the onus regarding the unregistered deed of lease dated 08.09.1989 upon the defendants and such an approach of the learned Court was erroneous in view of the settled proposition that the plaintiffs had to stand on their own legs and the plaintiffs cannot derive any benefit from the weakness of the defendant’s case. The learned counsel submitted that the defendants were claiming title over the property by virtue of Khurfanama which was executed by Late Karu Mandal way back in the year 1936 and the plaintiffs were claiming title on their own rights and therefore, the finding of relationship of landlord and tenant between the parties based on the un-registered lease deed dated 08.09.1989 is perverse. He submitted that if both the aforesaid substantial questions of law are answered in favour of the appellants, then the natural consequence would be that the finding of landlord-tenant relationship between the parties would be set aside and the decree passed by both the courts will be fit to be set aside.

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8. The learned counsel relied upon the judgment passed by the Hon’ble Supreme Court reported in (2008) 8 SCC 564 (K.B. Saha and Sons Private Limited -versus- Development Consultant Limited) to submit that the terms and conditions of an un-registered lease deed cannot be looked into even for determining the status of both the

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parties and therefore, the lease deed could not have been relied upon to hold that there was a relationship of landlord and tenant between the parties and has referred to Paragraph Nos. 27 to 30 of the said judgment.

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Arguments on behalf of the respondents

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9. The learned counsel appearing on behalf of the respondents on the other hand opposed the prayer and submitted that both the courts have relied upon the lease deed only for considering the landlordtenant relationship between the parties and have recorded that the same being an un-registered document could be looked into for collateral purposes. Both the courts have also relied upon the evidences of the defendants themselves particularly the evidence of DW-5 who has deposed that he used to visit Parmanand Sharma in his rented premises at Village Baijnathpur. The learned counsel submitted that the terms and conditions of the lease deed cannot be taken into consideration, but the learned courts have rightly relied upon the lease deed in addition to the evidence of DW-5 to record a finding of landlord-tenant relationship.

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10. The learned counsel for the respondents also submitted that the plaintiffs had also filed rent receipt issued in the name of Karu Mandal in the year 2010.

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11. The learned counsel further submitted that Exhibit-1 was duly proved by PW-3 and therefore, it was for the defendants to take appropriate steps for the purposes of getting the admitted signature of Parmanand Sharma duly examined through handwriting expert. He further submitted that wife of Parmanand Sharma was examined before the Court as DW-4 who deposed in Paragraph 8 of her evidence that Paramanand Sharma always used to put his signature in English and was having pass book and other documents which contained the signature of Parmanand Sharma in English, but no such document was produced before the court. He submitted that the defendants had alleged that the lease deed was forged and therefore, it was for them to take steps to prove that the signature of Parmanand

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(2025:JHHC:10434)

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Sharma on the lease deed was forged, but no such step was taken. The learned counsel submitted that irrespective of the lease deed, the evidence of DW-5 has been taken into consideration for holding that there was relationship of landlord and tenant and therefore the impugned judgments do not call for any interference.

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12. The learned counsel also referred to Paragraph-18 of the appellate Court’s judgment and submitted that though the defendants have claimed that they were in possession of the property since 1936 on the basis of un-registered khurfanama , but no document was filed by the defendants in connection with the property for the intervening period right from 1936 to 1992 to show their right, title, interest and possession over the suit property, nor a copy of the Register-II was shown to show that they had any right over the suit property. The learned Appellate Court by reasoned judgement has held that the Khurfanama itself did not inspire confidence and therefore, it cannot be relied upon.

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13. On the basis of the pleadings of the parties, the learned Trial Court framed the following issues for consideration:

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(1) Whether the suit as framed is maintainable?

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(2) Whether the plaintiffs have valid cause of action for the present suit?

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(3) Whether there is a landlord-tenant relationship between the parties?

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(4) Whether the defendants have defaulted in payment of rent as per the provisions of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act?

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(5) Whether the plaintiffs require the suit premises for their personal need?

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(6) Whether the plaintiffs’ requirement will be satisfied, if the suit premises is partially vacated?

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(7) Whether the plaintiffs are entitled to get Rs.2500/- as arrears of rent from the defendants?

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(8) Whether the plaintiffs are entitled to get any other relief or reliefs?

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14. In course of trial, the plaintiffs examined altogether six witnesses to prove their case. PW-1 is Govind Mandal, PW-2 is Bhola Turi, PW-3 is Binod Mandal, PW-4 is Raj Kumar Mandal, PW-5 is Anil Yadav and PW-6 is Vikki Kumar Mandal who is the Plaintiff No.4. Apart from the oral evidences, the plaintiffs also exhibited the unregistered lease deed dated 08.09.1989 as Exhibit-1, Rent Receipt No.08244 as Exhibit-2, carbon copy of the legal notice dated 30.04.2011 as Exhibit-3, certified copy of the purcha of mouza Baijnathpur, Jamabandi No.2 as Exhibit-4.

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15. On the other hand, the defendants examined seven witnesses. DW-1 is Krishnanandan lal Verma, DW-2 is Ganesh Prasad Sah, DW3 is Chhote Lal Yadav, DW-4 is Neera Devi who is Defendant No.1, DW-5 is Bhairav Prasad Lal, DW-6 is Ghanshyam Maraiya and DW-7 is Shiv Ranjan Dubey. The defendants Exhibited the rent receipts as Exhibits- A to A/3, Khurfanama dated 06.02.1936 as Exhibit-B, affidavit dated 19.06.1991 executed by Jagarnath Mandal as Exhibit-C and certified copy of the mutation order dated 31.07.1992 passed in Mutation Case No.80/1991-1992 as Exhibit-D.

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16. The learned Trial court took up the Issue Nos. 3,4,5,6 and 7 together. The learned Trial Court considered the materials on record and the lease deed dated 08.09.1989 which was exhibited by PW-3 without any objection from the side of the defendants. The learned trial Court also considered the fact that the lease deed was an unregistered document and recorded the admitted fact that the property was admittedly recorded in the name of Karu Mandal, the ancestor of the plaintiffs. The learned trial Court considered that the lease deed could be considered for collateral purposes. The learned trial Court also considered the fact that DW-4, the wife of Parmanand Sharma, has deposed during cross-examination that Parmanand Sharma used to put his signature in English and there were various documents executed by him in English including banking documents, but none of such documents were produced before the Court. The learned trial Court further recorded that the defendants had not produced any

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document with regard to possession of the property right from the year 1936 to 1949 and then up till 1990. The learned trial Court also considered the evidence of DW-5 and on the basis of evidence of DW5, recorded that DW-5 used to visit Tarachand Sharma, the father of Parmanand Sharma at his tenanted premises at Baijnathpur. The learned trial Court observed that the evidence of DW-5 reveals that the defendants were tenants under the plaintiffs. The learned trial Court decided the Issue Nos. 3,4,5,6 and 7 in favour of the plaintiffs and against the defendants. Accordingly, the learned trial court also decided the Issue Nos. 1,2 and 8 in favour of the plaintiffs and against the defendants.

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17. The learned 1^st Appellate Court framed the following points for determination:-

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“ (I) Whether there is landlord-tenant relationship between

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the plaintiffs and the defendants?

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(II) Whether unregistered lease deed dated 08.09.1989 can

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be used in evidence for collateral purpose?”

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18. The learned 1^st appellate Court also considered the materials on record and recorded its findings in Paragraph Nos.11, 12, 13 which are as under:

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“ (11). ………….. On careful perusal of the lease deed, it appears that it was prepared on a stamp paper before a notary and it bears the signatures of both Jagarnath Mandal as the lessor and Parmanand Sharma as the lessee. It also bears the thumb impression of Karu Mohli and signatures of Ganesh Sharma as witnesses. The aforesaid lease deed was prepared by Baleshwar Mandal, Advocate and typed by Chandra Kant Jha. The signatures of Jagarnath Mandal and Parmanand Sharma have also been identified by Advocate Baleshwar Mandal. It is clear from the lease deed that the suit premises was let out by lessor Jagarnath Mandal to the lessee Parmanand Sharma for a period of 11 years at a monthly rent of Rs.250/-.

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(12). Learned counsel for the defendant/appellants has submitted that the unregistered lease deed is not admissible in evidence as per the provisions of Section 17(d) and Section 49 of the Indian Registration Act. However, it is well settled that

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(2025:JHHC:10434)

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an unregistered lease deed can be looked into for collateral purposes and it can be safely relied upon for purpose of establishing the landlord tenant relationship. In a case reported in AIR 1991 SC 744 (Rai Chandra Jain versus Miss Chandrakanta Khosla) , the Hon'ble Supreme Court has clearly held that an unregistered lease deed executed by both landlord and tenant can be looked into for collateral purposes. Such an unregistered deed can be considered for determining whether lease has been granted for residential and non-residential purpose. Similarly, the Hon'ble Patna High Court in the case of Nand Lal Sharma versus Bajrang Lal and others (1977) PLJR 76 has held that the court can looked into the unregistered Kirayanama for the collateral purposes of determining as to whether there was a relationship of landlord and tenant between the parties. Thus, I am of the opinion that the unregistered lease deed (Ext.-A) can be looked into for the purpose of determining the landlord tenant relationship between the parties.

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(13). It has also been submitted by the appellants that the unregistered lease deed dated 08.09.1989 has not been properly proved by the plaintiffs and therefore it is inadmissible in evidence. According to the appellants the author of the lease deed has not been examined Learned Counsel for the appellants has relied on the decision of Malay Kr. Ganguly vs Sukumar Mukherjee & Others (AIR 2010 SC 1162) to buttress his point. However, facts of this case are entirely different from the Malay Ganguly's case. It was a case of medical negligence and question of expert opinion under Section 45 of the Evidence Act was involved in it. In this case, the unregistered lease deed is being looked into only for collateral purposes and the conditions laid down in it have not been considered at all. On perusal, I find that the lease deed has been proved by PW-3 Binod Mandal who was working as an advocate clerk. PW-3 has been extensively cross-examined by the defendants and they have also not raised any objection at the time of marking of the document. Therefore, the defendants/ appellants cannot raise this plea at the appellate stage particularly when the document has been used only for collateral purposes. PW-3 has stated in his evidence that it was prepared by Baleshwar himself and typed by typist Chandra Kant Jha. Thereafter, Baleshwar had read out the contents of the lease deed to both Jagarnath Mandal and Parmanand Sharma and after fully understanding its contents, both of them had put their signatures over the said

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lease deed. The entire lease deed was notarized by notary Sri Kewal Prasad Singh. PW-3 hay proved the signatures of Sri Baleshwar Mandal, Advocate, Sri Kewal Prasa Singh, Notary Public and the two witnesses Karu Mohali and Ganed Sharma. The entire lease deed was prepared in front of him and all the parties including Baleshwar Mandal, Advocate and the notary public had put their respective signatures over the lease deed in front of PW-3. Therefore, I find that the unregistered lease deed has been properly proved.

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19. The learned 1^st appellate court also considered the landlordtenant relationship between the parties and recorded at Paragraph-14 that all the plaintiffs’ witnesses have stated that Parmanand Sharma was a tenant of Jagarnath Mandal and was paying rent to him at the rate of Rs.250/- per month.

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20. The learned 1^st appellate court also considered the evidence of PW-6 who is one of the plaintiffs of the case and recorded that PW-6 stated in his deposition that his family has increased in size and many of its members are not married and also have children and therefore, they require the suit premises for starting their own business. It is situated on the Deoghar-Dumka main road and therefore, most suited for starting a hotel business. They have got no other suitable property to start their business and partial eviction of the defendants from the suit property will not be sufficient.

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21. The learned 1^st Appellate Court also considered the evidence adduced on behalf of the defendants and held that the ‘Khurfanama’ itself does not inspire any confidence and therefore, it cannot be relied upon. Similarly, Exhibit-A, A/1, A/2 and A/3 are the four rent receipts and Exhibit-D is the mutation order passed by the Circle Officer, Deoghar. However, it is well settled that revenue records do not confer any title and these documents do not help the defendants’ case. The learned 1^st appellate court also discussed the oral evidences adduced on behalf of the defendants and recorded that DW-4 has admitted in her cross-examination that she does not pay any municipality tax and she also does not have any document relating to the suit property between 1936 to 1992. The learned 1^st appellate Court further

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recorded that DW-5 has proved the ‘Khurfanama’ , but he has stated in his examination-in-chief that Tarachand Sharma was living in a rented house. Thus, DW-5 has himself contradicted the case of the defendants and from his evidence, it is clear that Tarachand Sharma was living in a rented house and not in his own house. DW-5 in Paragraph-14 has stated that Karu Mandal was the ex-owner of the suit property.

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22. The learned 1^st Appellate Court further recorded at Para-20 that during trial of the suit, the defendants did not take any step to challenge the authenticity and genuineness of the unregistered lease deed dated 08.09.1989. The document was never sent to a hand writing expert to verify the signature of Parmanand Sharma and therefore, the defendants cannot question the genuineness of the signature at this stage.

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23. Accordingly, the learned 1^st Appellate court decided both the points of determination against the defendants and in favour of the plaintiffs and affirmed the Judgement and Decree passed by the learned Trial Court and dismissed the title appeal preferred by the defendants.

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Findings of this Court

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24. After hearing the learned counsel for the parties this Court finds that a suit was filed by the plaintiffs seeking eviction of the defendants on the grounds of default in payment of rent and also personal necessity; it was the case of the plaintiffs that the cause of action arose on 01.09.2010 when the defendants stopped payment of rent since July, 2010. It was the specific case of the plaintiffs that the property was given by lease dated 08.09.1989 executed between Jagarnath Mandal son of Karu Mandal and Parmanand Sharma S/o Tarachand Sharma and admittedly on the date of filing of the suit, both Jagarnath Mandal and Parmanand Sharma had expired. Further case of the plaintiffs was that the property was leased out @ Rs.250/- per month for a period of 11 years; admittedly the lease deed was not registered. It was also the case of the plaintiffs that at the time of execution of the

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lease deed, an advance amount of Rs.11,000/- was paid and consequently the same was adjusted against rent and adjustment of advance was over by April, 2004 and thereafter Parmanand Sharma used to give rent of Rs.250/- per month who continued to pay rent till June, 2010 and thereafter in the year 2010, after death of Parmanand Sharma, the defendants stopped paying rent to the plaintiffs. 25. The defendants contested the suit by denying the relationship of landlord and tenant and it was their specific case that they were in possession of the property by virtue of a Khurfanama executed by Karu Mandal (the ancestor of the plaintiffs) way back in the year 1936 and their further case was that the execution of Khurfanama was duly admitted by Parmanand Sharma in his affidavit which was marked as Exhibit-C and on the basis of Exhibit-C, there was mutation in their favour vide Exhibit-D dated 31.07.1992 and consequently rent receipts were also issued by the State as Exhibit-A to A/3.

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26. This Court finds that so far as the 1^st substantial question of law is concerned, it is not in dispute that the lease deed dated 08.09.1989 was produced and marked as Exhibit-1 and was proved by PW-3 and the same was exhibited without any objection from the side of the defendants. This Court also finds that PW-3 has specifically deposed that the signatories had put their signatures on the lease deed in his presence and there is nothing in the cross-examination of PW-3 to doubt or question the evidence of PW-3 on this point.

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27. This Court further finds that both the Courts have referred to the un-registered lease deed and were of the view that it could be relied for collateral purposes and this court also finds that both the courts have not relied upon any clause of the lease deed as such to give any finding with regard to the terms and conditions of tenancy, etc. This Court also finds that both the Courts have not based their findings solely on the basis of the lease deed, rather the evidence of DW-5 has been relied upon by both the courts and both the courts have recorded that DW-5 has deposed that Tarachand Sharma was living in a tenanted premises. Thus, the witness of the defendants had

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not supported the case of the defendants who denied the relationship of land lord and tenant.

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28. This Court is of the view that apart from the lease deed, there were other materials on record before the learned courts to come to a finding regarding landlord-tenant relationship between them and since the defendants were claiming title over the property by virtue of Khurfanama , and the claim of title with respect of the suit premises by the defendants was rejected by both the courts and admittedly they have not been paying rent as they were claiming title over the suit property , there was no doubt regarding non-payment of rent by the defendants to the plaintiffs. In view of the nature of evidence placed on record, this Court is of the view that the evidence of PW-3, who has proved the un-registered lease deed dated 08.09.1989, cannot be said to be doubtful or questionable and the genuineness , correctness , existence and execution of un-registered lease deed dated 08.09.1989 has been duly proved and the evidence of P.W-3 is neither doubtful nor questionable and on this ground the impugned judgements cannot be said to suffering from any illegality . Further, the unregistered lease deed has been relied upon only for collateral purposes to ascertain the nature of possession with respect to the suit property along with other evidences placed on record. This court also finds that even if for a moment the unregistered lease deed is excluded from consideration, there is enough material on record to support the findings of land lord tenant relationship between the parties as discussed by both the courts.

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29. So far as the judgment relied upon by the appellants reported in (2008) 8 SCC 564 (K.B. Saha and Sons Private Limited versus Development Consultant Limited) is concerned, the subject matter of consideration in the said case was Clause No.9 of an agreement which is quoted in Paragraph-13 of the said judgment in the following manner.

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“13. Clause 9 of the agreement runs as follows:

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That the party of the second part hereof agrees and undertakes that the tenancy will be used and occupied by its present officer Mr. Keshab Das and members of his family for residential

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purpose only and for no other purposes. If the tenant intends to use the tenancy for occupation of any other officer or employees, it will seek for written consent of the landlord and the landlord shall have the option to agree or disagree to give such consent.”

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30. The Hon’ble Supreme Court in Paragraph-29 framed the question as to what would be the meaning of collateral purpose and then ascertained as to whether Clause-9 of the lease agreement involved in the said case could be looked into. In the said judgment the eviction was based on un-registered memorandum of lease agreement and the grounds for eviction was specifically referable to clause-9 of the lease agreement. The Hon’ble Supreme Court ultimately upheld the decision of the concerned High Court who held that as per Section 49 of the Registration Act, un-registered deed may be looked into and evidence of collateral facts and the relevant clause i.e. clause 9 of the lease agreement could not be said to be a collateral purpose. As per clause-9, it required the respondent to use the suit premises only for its particular named officer which was an important term forming part of the lease agreement and ultimately held that clause 9 cannot be looked into even for collateral purpose to come to a conclusion that the respondent was liable to be evicted because of violation of clause 9 of the lease agreement.

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31. This Court finds that in the present case, the relationship of landlord and tenant between the parties has been held by both the courts considering the other evidences on record and the un-registered lease deed has been referred to only for collateral purpose and no clause of the lease deed as such has been relied upon to record any finding, rather it is the existence of relationship of landlord and tenant which has been considered and findings have been recorded primarily based on the other materials placed on record. Accordingly, the judgement passed by the Hon’ble Supreme Court in (2008) 8 SCC 564 (supra) does not help the appellants-defendants in any manner.

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32. Accordingly, the Substantial Question of Law No. I is answered against the appellants and in favour of the respondents.

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33. So far as Substantial Question of Law No. II is concerned, this Court finds that PW-3 has proved the un-registered lease deed dated 08.09.1989 and deposed that the parties had put their signature in his presence. There is no cross examination of PW-3 on this point. The defendants had alleged that the lease deed was forged and fabricated. The wife of Parmanand Sharma deposed before the learned trial court and has stated that Parmanand Sharma used to put signatures in English in various documents including banking documents, but the defendants did not exhibit any document before the court. This Court finds that the learned trial court has taken into account this aspect of the matter that no admitted signatures of Parmanand Sharma were placed before the Court for comparison. It was the defendants who were alleging that the document was forged and fabricated and document having been duly proved, the onus was certainly on the defendants to prove that the document was forged and fabricated. This Court finds that the first substantial question of law having been answered in favour of the plaintiffs-respondents, it cannot be said that the plaintiffs failed to stand on their own legs and this court also finds that no benefit has been given to the plaintiffs by the alleged weakness of the case of the defendants. Consequently, the Substantial Question of Law No. II is also answered against the appellants and in favour of the respondents.

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34. Both the questions of law having been answered against the appellants and in favour of the respondents, this Court finds no merit in this second appeal, which is hereby dismissed.

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35. Pending I.A., if any, closed.

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36. Let a copy of this judgement be communicated to the Court concerned through FAX/e-mail.

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(Anubha Rawat Choudhary, J.)

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Binit

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Neera Devi And Anr. v. Pappu Mandal And Ors.

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Neera Devi And Anr. v. Pappu Mandal And Ors.

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