Sharda Devi Vs Nirmala Devi Dokania And Anr.

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2025:JHHC:17661

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S. A. No. 611 of 2017

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Sharda Devi, widow of late Rajendra Prasad, resident of Village, P.O. & P.S.- Chirkunda, District-Dhanbad.

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… … Defendant/Appellant/Appellant

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Versus

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Nirmala Devi Dokania, Wife of Shri Bishwa Nath Dokania. 2. Bishwa Nath Dokania, Son of Kanhaiya Lal Dokania. Both residents of Shanti Kunj, at Rishi Aurobindo Sarani, West Apcar Garden, Asansole, P.O. & P.S.- Asansole, DistrictBurdwan-713304 (W.B.).

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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. Anurag Vijay, Advocate : Mr. Srijan, Advocate For the Respondents : Mr. Mahesh Tewari, Advocate : Mr. Harsh Tiwary, Advocate ---

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09 /02.07.2025

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

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2. This appeal has been filed against judgment dated 06.06.2017 (decree signed on 20.06.2017) by learned District & Additional JudgeXVI, Dhanbad in Title Appeal No. 22 of 2012 affirming the judgment dated 23.01.2012 (decree signed on 09.02.2012) passed by the learned Civil Judge (Senior Division)-V, Dhanbad in Title (Eviction) Suit No. 06 of 1994. The Title (Eviction) Suit No. 06 of 1994 was decreed in favour of the plaintiffs by the learned trial court.

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3. The learned counsel for the appellant has submitted that the suit property belonged to one Tinkauri Gorain who sold the same to Bishwa Nath Dokania, but there was no notice of attornment and consequently there was no relationship of landlord and tenant between the parties. He submits that this aspect of the matter has not been considered by both the courts and consequently a substantial question of law be framed. He has further referred to paragraph (vi), (vii) and (viii) of the memo of appeal to submit that a Miscellaneous case No.

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11 of 2009 was allowed and the suit was restored but proper procedure was not followed for restoration of the suit and therefore, there is procedural irregularity committed by the learned trial court and this aspect of the matter has also not been considered by the learned 1^st appellate court.

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4. After hearing the learned counsel for the appellant and having gone through the impugned judgments, this Court finds that the plaintiffs had filed the suit for eviction numbered as Title (Eviction) Suit No. 06 of 1994 on account of default in payment of rent and on account of personal necessity. The specific case of the plaintiffs was that the plaintiffs had purchased the suit property through registered sale deed No. 641 dated 24.02.1992 from Tinkauri Gorain and others and the defendant was the tenant of Tinkauri Gorain and others upon monthly rent of Rs.550/- per month.

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5. It was the further case of the plaintiffs that Tinkauri Gorain and others intimated the defendant about the sale of the suit property with a request to make payment of the rent to the plaintiffs and the plaintiffs had also informed the defendant to make payment of rent and to vacate the tenanted premises, but defendant instead of paying rent to the plaintiffs filed one H.R.C. Case No. 07 of 1993 against the original owner and ex-landlord Tinkauri Gorain alleging therein that Tinkauri Gorain did not issue rent receipt to the defendant from January, 1992 to December, 1992. The plaintiffs were not made party in the said H.R.C. Case No. 07 of 1993 inspite of knowing the fact that the property was already sold to the plaintiffs by the original owner and ex-landlord Tinkauri Gorain .

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6. Pursuant to notice, the defendant had appeared and filed their written statement opposing the prayer and asserted that the co-sharers of Tinkauri Gorain and others were necessary parties and suit was bad for non-joinder of necessary parties and that there was no relationship of landlord and tenant between the parties. It was also asserted that the suit property belonged to somebody else namely Fani Bhushan Gorain and his co-sharers and it was also asserted that Tinkarui Gorain and

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others never sold the suit property to the plaintiffs through the alleged registered deed No. 641 dated 24.02.1992 and that the plaintiffs never informed the defendant about the alleged purchase and to make payment of rent to the plaintiffs or to vacate any premises at any point in time. The plea of personal necessity was also objected.

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7. It was further case of the defendant that the defendant had paid monthly rent upto December, 1991 and the landlords were regularly granting rent receipts and when the landlords and Tinkauri Gorain refused to accept monthly rent and grant receipt thereof, the defendant remitted the monthly rent upto December, 1992 through treasury challan. However, the defendant admitted in paragraph 16 of the written statement that the registered letter of Tinkauri Gorain was received by him on 19.09.1992 but the defendant stated that the letter contained vague and incorrect information without mentioning the sale of the house premises to the plaintiffs which created a reasonable doubt in the matter and thus the defendant denied the relationship of landlord and tenant between the plaintiffs and the defendant.

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8. The following issue were framed by the learned trial court:-

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i. Whether suit is maintainable?

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ii. Whether there is any cause of action for the present suit?

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iii. Is there any relationship of landlord and tenant between the parties?

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iv. Whether plaintiffs require the premises for personal use and occupation?

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v. Whether defendant is a defaulter for non-payment of rent from February 1992?

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vi. What relief if any, the plaintiffs are entitled for?

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vii. Whether the plaintiffs’ need be fulfilled by partial eviction of the suit property?

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9. The learned trial court while considering the plea of landlord and tenant relationship held that the defendant in his evidence had accepted that the Tinkauri Gorain was the landlord. The defendant had also accepted that he knew that if the property is sold by the landlord then the purchaser would become the new landlord and the defendant also accepted that he had received the letter from Tinkauri Gorain dated 19.09.1992 and admitted that upon receipt of that letter, he came

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to know that the suit property was purchased by Bishwa Nath Dokania, but inspite of that he did not pay rent to the new landlord. The learned trial court ultimately recorded that there was relationship of landlord and tenant between the parties and the fact that defendant had not paid rent to the plaintiffs was certainly admitted and ultimately the learned trial court held that the defendant was a defaulter. The plea of partial eviction and personal necessity was also considered and the same was also decided in favour of the plaintiffs and the suit was ultimately decreed on account of default in payment of rent and personal necessity.

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10. The learned 1^st appellate court framed the following point for determination vide paragraph 8, which are as follows: -.

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I. Whether there is any illegality or infirmity in the impugned judgment sub serving the purpose of remanding the matter to the learned lower court?

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II. Whether there is relationship of landlord and tenant between the parties to the suit or not?

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III. Whether the defendant/appellant was defaulter in payment of rent of the suit premises since February 1992 or not?

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IV. Whether the plaintiffs/respondents were in bonafide personal requirement of the suit premises or not?

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11. The reason for framing the aforesaid I^st point for determination was that the original defendant had expired and his wife was substituted and it was alleged that the children of the original defendant were not included for the purposes of substitution and they were not made party. It was argued that the abetment was set-aside in Miscellaneous case no. 11 of 2009 and thereafter no fresh notice was issued in the trial and the case was decided. It was also argued that the defendant had filed a petition before the learned trial court for framing additional issue on 18.06.2007 and the final judgement was passed without disposing the said petition. On the basis of aforesaid arguments, it was argued by the defendant before the 1^st appellate court that the case was fit to be remanded before the learned trial court. On the other hand , the plaintiffs had submitted that no issue was suggested by or on behalf of the defendant in his petition filed on

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18.06.2007 and as such question of framing of additional issue did not arise before the learned trial court ;Miscellaneous Case No.11 of 2009 was contested by the defendant and it was not required after allowing the said miscellaneous case that the defendant be served with a fresh notice in the original suit; substitution of the defendant was as per the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. It was submitted that the learned trial court had committed no errors and as such no case of remand was made out.

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12. The learned 1^st appellate court considered the factum of filing Miscellaneous Case No. 11 of 2009 for setting aside abetment of the suit during the pendency of the suit and the fact that the abetment was set aside in Miscellaneous Case No. 11 of 2009 during the pendency of the suit and then the suit proceeded with due participation of the parties and decided on merits. The learned 1^st appellate court also considered the argument of filing petition regarding framing additional issue. The alleged procedural irregularity was considered under point of determination no. (I) and the learned 1^st appellate court has rejected the same as under: -

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“10. Having heard learned counsels appearing on behalf of the parties to the appeal and perusing the lower court record, it appears from the order dated 18.06.2007 that the defendant / appellant had filed an application before the learned court below for amending the issues and for framing additional issues upon the ground that the issues framed in Title (Eviction) Suit No. 07/1994 are different to the present one and the present issue in Title (Eviction) Suit No. 06/1994 be amended like that of the issues of Title (Eviction) Suit No. 07/1994. It further appears that the defendant / appellant did not propose any specific issue in the aforementioned petition before the learned court below in the instant matter for amending / adding the same. No such proposed amendment has been pleaded even before this court for addition of the same in the instant matter. It further appears from perusal of the lower court record that the defendant / appellant never pressed his application before the learned court below. Coming to the issues as framed by the learned court below in the instant matter, the same has been inserted in paragraph no. 4 of this judgment, the same were quite sufficient for determining the instant eviction suit in its own facts and

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circumstances. Rule-25 of Order – XLI of the Civil Procedure Code, 1908 is the relevant provision which reads hereunder;

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''………………………………..”

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Omission to frame or try any issue or to determine any question of fact essential to the right decision of the suit upon the merits are sine qua non for application of the aforementioned provision of law and nothing as such has been demonstrated by the learned counsel appearing on behalf of the appellant / defendant. Coming to the matter of issuance of fresh notice to the defendant / appellant after allowing Miscellaneous Case No. 11/2009, it appears that the original suit again proceeded for final arguments on 10.09.2011. At the same time, it appears from perusal of the orders dated 10.09.2011 and 20.10.2011 passed by the learned court below in the original suit that the defendant had taken step into the matter on both the aforementioned dates when the case record was running for final arguments before the learned court below. In such circumstances, fresh issuance of notice to the defendant after allowing Miscellaneous Case No. 11/2009 was not necessary at all, as the purpose of issuance of notice is to make aware the party to appear and to contest the same, whereas the defendant / appellant had contested the said miscellaneous case and had also appeared on two dates in the original suit after allowing the said miscellaneous case. In such circumstances, issuance of fresh notice to the defendant / appellant at that stage was quite redundant. Coming to the aspect of substitution of the original defendant, it appears from perusal of Section-2(h) Explanation-1 (a) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, that the surviving spouse comes in the order of succession in the event of death of the person continuing in possession. The original defendant was the husband of the present appellant / defendant and her substitution was as per law. Accordingly, it is not a fit case for remand upon the points urged by the learned counsel appearing on behalf of the appellant / defendant.”

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13. During the course of hearing, the learned counsel for the appellant has submitted that against the order passed in Miscellaneous Case No. 11 of 2009 a review petition was filed but nothing materialized. The learned 1^st appellate court further rejected the same plea by citing reasons in paragraph 9 by holding that the original defendant was the husband of the appellant/defendant and the substitution was as per law and it was not a fit case for remand before the trial court. This Court finds that all the three points with respect to

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the alleged procedural irregularity – non consideration of petition from framing additional issue by trial court, issuance of fresh notice after death of original defendant and after setting aside abetment in Miscellaneous Case No.11 of 2009 and substitution of original defendant only by his spouse, have been duly considered by wellreasoned findings while deciding the point of determination no. I by the learned 1^st appellate court. This Court finds no illegality in the aforesaid findings and is of the considered view that no question of law much less and substantial question of law in involved with respect to the decision relating to the point of determination no. I decided by the learned 1^st appellate court in favour of the plaintiffs.

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14. While considering the point of determination No. (II), the learned 1^st appellate court also considered the evidence on record including the evidence of defendant and ultimately recorded finding of landlord-tenant relationship between the parties in favour of the plaintiffs. The portions of the findings are quoted as under: -

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“………………………………………………………………………… ………….D.W. No.2 namely Vishwanath Ghosh has also admitted in his evidence that the defendant / appellant is a tenant of the suit premises. He has also admitted in paragraph no.9 of his evidence that Rajendra Prasad got a letter in September, 1992 from his previous landlord, in which it was written that Tinkauri Gorai and his sharers have sold the suit premises to Vishwanath Dokania i.e. one of the plaintiff on 24.02.1992. This witness has unambiguously stated in paragraph no.12 of his cross examination that Rajendra Prasad Saw i.e. defendant before the court below was a tenant only in the suit premises. This witness has further stated in paragraph no.14 of his cross examination that he had seen the certified copy of sale deed in respect of purchase of the suit property by Vishwanath Dokania i.e. one of the plaintiff. D.W.No.3 namely Rajendra Prasad Sao is the defendant himself of this case, who himself has admitted in paragraph no.2 of his examination in chief and paragraph no.2 of his cross examination that he is a tenant in the suit premises. This witness being defendant himself of this case has further admitted in paragraph no.4 of his cross examination that he knew on 19.09.1992 that the ex landlord of the suit premises had sold the suit premises to Vishwanath Dokania i.e. one of the plaintiffs before the court below. This witness has further stated

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in paragraph no.5 of his cross examination that he did not pay any rent to Vishwanath Dokania even after knowing that he had purchased the suit premises. Paragraph no.16 of the cross examination of this witness being the defendant himself has admitted that Vishwanath Dokania became owner of the suit premises. Furthermore, the defendant / appellant has nowhere pleaded that the plaintiffs are not the owners of the suit property and he himself is not the tenant of the suit property. Rather, the aforementioned discussions upon the evidences of the parties to the suit clearly prove that there existed relationship of landlord and tenant between the parties to the suit, wherein the plaintiffs/ respondents are the landlord and the defendant/ appellant is a tenant of the suit premises. Accordingly, the instant point of determination is decided in favour of the plaintiffs/respondents.”

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15. While considering the point of determination No. (III), the learned 1^st appellate court also considered the evidence on record including the evidence of defendant and ultimately recorded a finding that the defendant stopped payment of rent to the plaintiffs with effect from February 1992 after recording a finding that not only the plaintiff but also the ex-landlord had informed the defendant that the rent is to be paid to the plaintiffs. The portions of the findings are quoted as under: -

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“…………………………………………………………………………

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…………………. There is nothing on the record that any rent amount was paid by the defendant / appellant to the plaintiffs / respondents after February 1992 i.e. after purchase of the suit premises by the plaintiffs / respondents, either in person or through any treasury challan.

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……………… whereas the suit property was purchased by the plaintiffs / respondents in February 1992 itself who was never paid any rent amount thereafter and the ex landlord namely Tinkauri Gorai had already refused to accept any rent amount of the suit premises on the ground that he and his sharers had sold the suit premises to the plaintiffs / respondents in February 1992 itself . The same itself makes it clear that the defendant / appellant became defaulter since February 1992 itself. In such circumstances, the defendant / appellant became defaulter in payment of monthly rent amount of the suit premises since February 1992 itself. Accordingly, the instant point of consideration is also decided in favour of the plaintiffs / respondents.”

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16. While considering the point of determination No. (IV), the learned 1^st appellate court also considered the evidence on record including the evidence of defendant and ultimately recorded finding of personal necessity in favour of the plaintiffs. The portions of the findings are quoted as under: -

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“………………………………………………………………………… …………. At the same time, D.W.No.3 namely Rajendra Prasad Sao i.e. the defendant / appellant himself has also admitted in paragraph no.9 of his cross examination that Vishwanath Dokania i.e. one of the plaintiff / respondent lives in a rented house at Upper Bazar, Chirkunda. There is nothing on the record that the plaintiffs / respondents have any accommodation (residential / professional) at Chirkunda. In such circumstances, it can safely be said that the plaintiffs / respondents require the suit premises bonafidely and no partial eviction can serve the purpose of the plaintiffs / respondents. In such circumstances, the plaintiffs / respondents were / are in bonafide personal requirement of the suit premises. The instant point of consideration is also decided in favour of the plaintiffs / respondents.

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17. This Court is of the considered view that on the face of the findings recorded that the defendant had enough knowledge about the sale of property by Tinkauri Gorain to the plaintiffs and also that the defendant was to make payment of rent to the plaintiffs, but admittedly the rent was not paid. This Court finds that the learned 1^st appellate court after considering the evidences on record has rightly recorded concurrent finding that there was landlord-tenant relationship between the parties and that the defendant was defaulter in payment of rent and also had bonafide personal necessity and in good faith required the suit premises.

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18. This Court finds no illegality in the aforesaid findings of the learned 1^st appellate court with respect to each point of determination and upholding the judgement of the learned trial court and this Court is of the considered view that no question of law much less and any substantial question of law is involved in this case.

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19. Accordingly, this Court finds no merit in this 2^nd appeal which is hereby dismissed.

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20. Pending I.A., if any, is closed.

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21. Let a copy of this order be communicated to the concerned courts through “FAX/e-mail”.

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(Anubha Rawat Choudhary, J.)