Dukhan Ram Vs Smt Sumitra Gupta And Anr.

2. This second appeal has been filed against the judgement dated 10.11.2016 (decree dated 23.11.2016) passed in Title Appeal No.38/2014 whereby the learned Additional Judicial Commissioner – XI, Ranchi has dismissed the appeal preferred by the appellant and confirmed the judgement dated 26.05.2014 (decree signed on 06.06.2014) passed by learned Additional Munsif- II in Eviction Title Suit No.23/1999. The suit was decreed and the defendant, who was the tenant is in appeal.

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3. The learned counsel for the appellant has submitted that the following proposed substantial questions of law under paragraph 5 (e) and 5 (f) of the memo of appeal fall for consideration in the present case:-

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5 E. Whether the finding of the learned Court Below has not considered that appellant has doing his business more than 50 years ago as per map which was shown yellow wash i.e. actual location and red was rear portion of Pan Gumti and the impugned judgment and decree based on without said finding can be sustained in law?

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F. Whether in absence of any direct and or cogent evidence the finding of the learned court below regarding fraction of Schedule Property which is part of the portion of Holding No.1459, 1460, 1463 and part of portion of Municipal Corporation of Ranchi having holding No.1596 for which defendant/appellant / appellant settled in his favour and paying rent to the Municipal Corporation, Ranchi.”

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4. The learned counsel submits that the specific case of the defendant was that he was running ‘pan gumti’ on the municipal drain and the suit property did not belong to the plaintiff as it belonged to the municipality, and therefore, the suit was fit to be dismissed. He has referred to the schedule of the plaint as quoted in the decree passed in the original suit and has submitted that with respect to the ‘pan gumti’ on the municipal drain, there could not have been landlord-tenant relationship between the parties. The schedule of the plaint is quoted as under:

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“Schedule

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One Pan Gumti standing on portion of Municipal Survey Plot Nos.1459, 1460, and 1463 corresponding to portion of municipal holding no.929 within new ward no.3 of the Ranchi Municipal Corporation situated at Gandhi Chowk, Upper Bazar, Ranchi, P.S. Kotwali, district Ranchi having Chhaparbandi right and bounded as follows: -

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North: - Holding No.931 of Smt. Indu Gupta and Sri Ved Prakash Gupta

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South – Gandhi Chowk, Ranchi

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East – Portion of Holding no.929 of the plaintiffs

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West – Road”

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5. After hearing the learned counsel for the appellant and having gone through the impugned judgments, this Court finds that the specific case of the plaintiffs was that municipal survey plot nos.1459, 1460, 1461, 1462 and 1463 along with house and other structures standing thereon with further description of the property was within ward no.3 of Ranchi Municipal Corporation situated at Gandhi Chowk

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Upper Bazar, Ranchi and it was initially possessed by one Rupa Ram Choudhary, who had acquired the same by virtue of family partition of the year 1925, who got his name mutated in the year 1935, and donated the same in favour of Pratapi Devi, who came in physical possession of the property and got her name mutated in Ranchi Municipal Corporation and started paying tax.

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6. However, on 13.04.1954, Smt. Pratapi Devi executed a registered deed in favour of Bayaso Devi, who in order to fulfill her legal necessities sold some portion of land appertaining to MS Plot No.1459, 1463, 1460 along with other structures thereon to the plaintiffs by virtue of registered sale deed dated 04.04.1990 for valuable consideration. It was the case of the plaintiffs that the property was subject matter of a title suit and the same ended in a compromise and consequently, Smt. Bayaso Devi was the absolute owner of the property which was transferred by way of registered deed in favour of the plaintiffs.

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7. It was further case of the plaintiffs that the defendant was initially inducted as a tenant of some portion of the suit property on monthly rent. The plaintiffs-respondents immediately after purchasing the property, orally informed the defendant and requested him to attorn them as his landlord and to start making payment of rent from April, 1990. At the same time, Smt. Bayaso Devi also informed the defendant regarding sale of the suit property in favour of the plaintiffs, and in spite of that, the defendant never paid rent to the plaintiffs from 1990. A plea of personal necessity was also raised by stating that the plaintiffs were also willing to start a business along with Sumitra Devi and there was a bonafide and legal necessities of the suit premises and sufficient arrangement was also made with respect to fund for doing business.

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8. The defendant filed a written statement stating that the property is of municipal corporation and is situated over a drain of Ranchi Municipal Corporation and therefore the plaintiffs had no locus to bring the suit and that the defendant was running a ‘pan gumti’ on the drain for last 50 years and he could not be evicted from the shop. It

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was also asserted that the suit property was not transferred in favour of Bayaso Devi by the sale deed dated 04.04.1990 and Bayaso Devi herself had no right, title and interest over the suit property. It was also contended that Bayaso Devi used to receive rent from the defendant with respect to the rear portion of the shop appertaining to municipal plot no.1596 measuring an area of 4 feet x 5 feet by means of coercion, but the suit was related to the front portion of his shop and was situated on the municipal drain.

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9. The following issues were framed by the learned trial court:

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(i) Is the suit as framed is maintainable?

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(ii) Have the plaintiffs valid cause of action for the suit?

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

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(iv) Whether the defendant has defaulted in payment of rent of the premises in the suit since April 1990 and are the plaintiffs entitled to arrears of rent as claimed?

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(v) Whether partial eviction of the defendant would serve the requirement of the plaintiffs?

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(vi) To what other relief or reliefs are the plaintiffs entitled to?

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10. The learned trial court after considering the materials on record including the evidence led by the defendant ultimately recorded a finding that there was a drive for removal of encroachment over the drain and the construction over the drain was removed and this fact stood admitted in the evidence from the side of the defendant. The learned court also recorded that the defendant in his cross-examination has stated that he used to pay rent to Bayaso Devi and from 1985, he stopped paying rent. The learned trial court also considered the plea of personal necessity and the plea of partial eviction and ultimately decided issue nos.3, 4, 5 and 7 in favour of the plaintiffs and directed for eviction of the suit premises. The learned trial court also held that the plaintiffs had informed the defendant about purchase of the suit

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property from Bayaso Devi and also issued notice which was marked exhibit-8 and by referring to an earlier judgement passed by this court held that it is well settled that attornment is not a condition precedent for creating a relationship of land lord and tenant and the transfer takes place with all incidents of right, title, and interest of the lessor and the transferee is entitled to sue the existing tenant for eviction under the provisions of Bihar Building (Lease, Rent & Eviction) Control Act, even if the tenant has not attorned to his tenancy under him. Attornment of tenant is also not essential to give validity to the transfer made in favour of transferee.

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11. The learned 1^st appellate court considered the materials on record and also considered the same issues as framed by the learned trial court and decided issue nos.3,4,5,7 vide paragraphs 12 to 16 and 18 of the judgement as follows:

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“12. As the issues No 3, 4, 5 and 7 are interwoven and intermingled in such a manner that they cannot be decided separately, the same are taken first for a conjoint determination. In this respect contention of the plaintiffs is that after obtaining the suit premises by virtue of a registered sale deed from Byaso Devi, they came in possession of the same but on the other hand contention of the appellant defendant is that the betel shop is situated over drain of Ranchi Municipality and, therefore, the suit premises is exclusive property of the Municipality of Ranchi. The plaintiffs/respondents have fully raised the fact that after purchase they obtained right of title to, and an interest in the suit property and orally informed the appellant/defendant regarding their purchase from the vendor Byaso Devi. This aspect of the contention of the plaintiffs/respondents has been fully buttressed by the oral evidence of their witnesses and also by the documentary evidence proved by them.

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13. On the other hand the witnesses examined by the defendants have stated that there has been no relation between land lord and tenant between the plaintiffs and the defendant and the suit premises belongs to Ranchi Municipality but during their crossexamination they have failed to withstand the test of cross-

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examination. DW 1 has stating in his cross-examination that the suit premises initially belonged to Byaso Devi and the defendant/appellant had been her tenant. DW 2 has also stated that the appellant/defendant had been a tenant of the vendors of the plaintiffs/appellants and the DW 3 has also categorically stated that the betel shop after drain once belonged to Pratapi Devi who transferred the same to Byaso Devi and the appellant/defendant used to pay rent to Anup Singh who was none but the husband of Byaso Devi. DW 4 has also deposed that the suit premises initially belonged to Sardara and the appellant/defendant used to be their tenant. DW 6 the appellant/defendant himself has also stated in his crossexamination that initially they used to pay sum of Rs. 35/- as monthly rent to Byaso Devi but after the year 1985 he stopped paying the same.

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14. In view of the above facts and circumstances it has become an admitted aspect of the case that once upon a time Byaso Devi was the actual land lord of the suit premises and the appellant/defendant was her tenant but later on Byaso Devi sold the suit premises to the plaintiff/appellant and thereafter dispute regarding tenancy and the payment of monthly rent has ensued. 15. From perusal of the testimony of the witnesses it is also demonstrably clear that the DW 1 has deposed in his evidence that in the year 2006 encroachment upon municipal land was demolished by the Ranchi Municipality and DW 3 and DW 4 have also categorically deposed that during a special drive the portion of betel shop sanding upon the municipality drain was destroyed and from the above testimony of the witnesses, I find and hold that the appellant/defendant has miserably failed to bring home the fact that actually a betel shop does still exists which does not belong to the plaintiffs/respondents.

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16. So far as the default in making payment of rent is concerned, the DW 6 the appellant/defendant himself has admitted that prior to the year 1985 he used to pay a monthly rent of Rs. 35 to Byaso Devi but later on he stopped paying the same to plaintiffs/respondents and thus, it is also crystal clear that the

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defendant/appellant has made a default in making payment of rent to his land lord. So far as pleading of personal necessity of the plaintiffs is concerned, PW 4 who is none but the plaintiff himself, has deposed in his evidence that after completion of his education he has been sitting idle in his house and is willing to deal in stationary and that the suit premises is the most suitable place for the said business. It has also been deposed by him that save and except the suit premises they have no other suitable premises for running any business and adjacent place/area if any is used by them for their residential accommodation.

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18. On the basis of superadjacent discussion and material spelt out, in my considered opinion there has been a land lord relation of land lord and the tenant between plaintiffs/respondents and the appellant/defendant and that the defendant has made default in making payment of rent to his land lord the respondent. I further find and hold that personal eviction of the suit premise cannot serve the purpose of the plaintiff and further I find and hold that the contention of the appellant that still the suit premises is belonging to the Ranchi Municipality cannot be relied upon and believed in because the DWs themselves have stated that Ranchi Municipality has evicted its encroached land in the year 2006 itself and thus it is evident that the issues at hand are fit to be decided only and only in favour of the plaintiffs/respondents and against the appellant/defendant.”

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12. This Court finds that both the courts has specifically rejected the plea of the defendant that the suit premises was belonging to Ranchi Municipality and the plea of the defendant that the shop was situated on the drain on Ranchi Municipality was rejected by concurrent findings. The learned courts have also recorded that it was admitted that Bayaso Devi was the actual landlord of the suit premises and the defendant was her tenant but later on Bayaso Devi sold that suit premises to the plaintiffs. It has also been held that attornment of tenant is also not essential to give validity to the transfer made in favour of transferee. It has also been recorded that the tenant was duly

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informed about the transfer of the suit property to the plaintiffs but still defaulted in payment of rent to the plaintiffs.

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13. This Court finds that there are concurrent findings recorded by both the courts and the substantial question of law specifically pointed out by the learned counsel for the appellant and as quoted above are not substantial question of law in the eyes of law. No perversity in the matter of appreciation of evidence as such has been pointed out by the learned counsel for the appellant. The substantial questions of law as pointed out by the appellant are essentially questions of facts, which has been taken care of by both the courts and concurrent findings have been recorded.

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14. There being no substantial question of law involved in this case, this appeal is accordingly dismissed.

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(Anubha Rawat Choudhary, J.)

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Saurav/

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Dukhan Ram v. Smt Sumitra Gupta And Anr.

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Dukhan Ram v. Smt Sumitra Gupta And Anr.

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