Dismissed

Vikas Kumar Singh v. Om Prakash Mishra

Patna HC10 Oct 2012C.R./42/2012

Case brief

AI extract

What is this about?

The High Court of Patna dismissed a civil revision application filed by a tenant against an eviction decree. The tenant failed to prove title, contesting on a rejected specific performance suit. The court upheld the trial court's finding of the landlord's ownership and bona fide need for possession. The revision was dismissed without costs.

What did the court decide?

Civil Revision application dismissed but without any order as to costs.

Vikas Kumar Singh Vs Om Prakash Mishra — Landlord and Tenant | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.42 of 2012 ====================================================== 1. Vikas Kumar Singh S/O Late Jai Gobind Singh R/O Village - Chanavath, Police Station Nawanagar, District - Buxar .... .... Petitioner Versus 1. Om Prakash Mishra S/O Vishwanath Mishra R/O Mohalla - Sidh Nath Ghat, Police Station Buxar ( T ), District - Buxar .... .... Opposite Party ====================================================== Appearance : For the Petitioner/s : Mr. Rang Nath Choubey, Adv. For the Respondent/s : Mr. Amarendra Nath Verma, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 4 10-10-2012 I.A. No. 1501 of 2012

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I.A. No. 1501 of 2012

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This interlocutory application has been filed by petitioner under Section 5 of the Limitation Act, 1963, praying for condonation of delay in filing the Civil Revision application.

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Heard the parties and perused the record.

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For the reasons assigned in the application, the delay is condoned.

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The interlocutory application stands disposed of

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C.R. No.42 of 2012

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Heard Mr. Rang Nath Choubey, learned counsel for the petitioner and Mr. Amarendra Nath Verma, learned counsel for the opposite party.

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This civil revision is directed against the judgment and decree dated 28.11.2011 passed by learned Munsif 2^nd , Buxar in

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Patna High Court C.R. No.42 of 2012 (4) dt.10-10-2012

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Eviction Suit No. 01 of 2010 whereby the suit has been decreed requiring the defendant-petitioner to handover the vacant possession of the premises to the decree holder within 60 days of the judgment and decree.

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The suit in question has been filed by the plaintiff-opposite party by invoking the provisions of Section 11(1)(c) read with Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982.

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It is the case of the plaintiff that the suit premises belonged to one Tara Muni Devi who purchased the same through a registered sale deed dated 15.12.1956, copy whereof is placed at Annexure-OP/1 to the counter affidavit filed by the plaintiffopposite party in the present proceedings. It is stated that the details of the land are mentioned in the sale deed and reads Khata No. 170 Plot No. 3434 having an area of about 5 Kathas.

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It is stated that the plaintiff-opposite party is a descendant of the said Tara Muni Devi who constructed the house in question and whose name also stands entered in the municipal records. A map approved by the Buxar Municipality has also been placed in the counter affidavit stated to be that of the house in question. The municipal receipts have been placed on record issued in the name of Tara Muni Devi. It is further the case of the plaintiff that the

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Patna High Court C.R. No.42 of 2012 (4) dt.10-10-2012

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said Tara Muni Devi deceased on 2.3.2001 and whereafter the plaintiff got their names mutated in the Municipal records. The rent receipts in relation to the land as also the order of the municipal authority have been placed at Annexure-3 series.

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It is the case of the plaintiff that defendant-petitioner who happens to be a son of an advocate clerk working in the Buxar Civil Court requested tenancy and following which request he was inducted as a tenant in two of the four rooms in the premises in the month of July, 2005 on a monthly rent of Rs. 600/-. It is further the case of the plaintiff that following nuisance and disturbances created by the defendant-petitioner, the matter reached the local police where the defendant-petitioner while accepting that he was a tenant with the plaintiff, agreed to vacate the same. It is the case of the plaintiff that having given an undertaking to vacate the premises, the defendant through his wife approached the Superintendent of Police, Buxar by filing a petition and charging the local police of forcing her husband into giving an undertaking that he would be vacating the house in question. Following the complaint filed by the wife of the defendant-petitioner, the matter was got enquired into by the Superintendent of Police, Buxar and a report was submitted on 18.2.2008 placed at Annexure OP/4 of the counter affidavit. The report was again drawn in favour of the

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Patna High Court C.R. No.42 of 2012 (4) dt.10-10-2012

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plaintiff. As the defendant-petitioner did not choose to vacate the premises hence the eviction suit in question was filed and the learned Court below upon consideration of the oral and documentary evidence led by the parties, has decreed the suit in favour of the plaintiff.

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The defendant-petitioner contesting the claim of the plaintiff has relied upon a Mahadanama stated to have been executed by one Tetari Devi in his favour containing an agreement to sale the suit property in his favour after having received Rs. 50,000/- by way of advance. According to the defendant the Mahadanama itself vested the right in the petitioner to get the registration done through the process of the Court upon failure of the said Tetari Devi to execute a formal sale deed. The defendant-petitioner thus claimed a right, title and interest in the suit property by virtue of the Mahadanama which is dated 21.01.2000 and is not registered. The clause of the Mahadanama vested the defendant with the right to get a sale executed through the process of the Court but again this was not done. It is further the case of the defendant that as the said Tetari Devi failed in her undertaking hence he filed a suit for specific performance of contract against the legal heir of Tetari Devi who had since deceased, giving rise to Title Suit No. 84 of 2008. The said suit was filed against Pushpa Devi the daughter of

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Patna High Court C.R. No.42 of 2012 (4) dt.10-10-2012

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Tetari Devi. The said suit however, was dismissed as the plaint itself stood rejected under Order 7 Rule 11 of the Code of Civil Procedure vide an order dated 6.8.2008 passed by learned Sub Judge 3, Buxar. The Misc. Appeal preferred against the dismissal giving rise to Misc. Appeal No. 13 of 2008 was also dismissed on 02.02.2012. The defendant never chose to question the said orders before any superior Court but continued to stay in the suit premises.

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Mr. Rang Nath Choubey, learned counsel appearing on behalf of the petitioner while questioning the very title of the plaintiff has submitted that by virtue of the Mahadanama dated 21.01.2000, a right was vested in him. It is stated that considering the Mahadanama as also the mutation certificate issued by the Circle Officer, Buxar mentioning therein that the suit property was registered in the name of Pushpa Devi, the plaintiff had no locus to seek his eviction. He also denied the tenancy of the petitioner under the plaintiff submitting that the tenancy if any of the petitioner, was with the deceased Tetari Devi and none else. Mr. Choubey, even while contesting the judgment under challenge could not wriggle out of the situation that the right claimed by the petitioner under the Mahadanama sought to be enforced through Title Suit No. 84 of 2008 stood negated by the rejection of the

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Patna High Court C.R. No.42 of 2012 (4) dt.10-10-2012

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plaint itself with the Misc. appeal meeting the same fate. It was however contended that notwithstanding the said position, the plaintiff not being a title holder of the land, the very locus was absent for them to prefer the suit in question.

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The position has been contested by Mr. Amarendra Nath Verma, learned counsel appearing for the plaintiff-decree holder. With reference to the sequence of events it was submitted that a mistake of inducting the petitioner as a tenant in the house has forced the plaintiff into an otherwise avoidable proceedings.

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Mr. Verma, learned counsel for the plaintiff has stated that the petitioner having tested his right if any, flowing from the Mahadanama dated 21.1.2000 in T.S. No. 84 of 2008 his challenge ended with the rejection of the plaint with the appeal following suit. It is submitted that where the very basis of the claim of the petitioner stood rejected by the trial Court, the petitioner cannot question the locus of the plaintiff. It is submitted that having undertaken to vacate the premises the petitioner again tried to evade the same by complaining before the Superintendent of Police, Buxar and the matter having been enquired, the report clarified that there was no one by the name of Tetari Devi and that the petitioner was a tenant in the house of the plaintiff and was not paying rent.

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Patna High Court C.R. No.42 of 2012 (4) dt.10-10-2012

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As regarding the title on the property, Mr. Verma has referred to the documents placed at Annexure-O.P/1 series of the counter affidavit to submit that the land in question in fact belonged to his grand mother Tara Muni Devi and being the legal representative and with no other contest to the claim, the municipal authority after seeking objection have mutated his name in place of his grand mother. With reference to the mutation receipt issued in the name of Pushpa Devi stated to be a daughter of the Tetari Devi from whom the petitioner seeks to derive his interest, it is stated that the mutation receipt placed at Annexure-2 is only in respect of 6 dhurs of land whereas the house is constructed over an area of about 3 Kathas 5 dhurs. It is submitted that even if the claim of the petitioner is to be believed, the said Pushpa Devi never chose to intervene at any stage of the proceedings. It is stated that the learned Court below having tested the rival claims of the parties by a detailed judgment have decided the issue in favour of the plaintiff and which does not warrant any interference.

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I have heard learned counsel for the parties and have perused the materials on record.

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The only material on which the petitioner seeks to rely upon is a Mahadanama dated 21.1.2000. Apart from the said document there is nothing supporting the claim of the petitioner. The said

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Patna High Court C.R. No.42 of 2012 (4) dt.10-10-2012

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Mahadanama having been tested before the competent Court of civil jurisdiction in Title Suit No. 84 of 2008 and the plaint having been rejected at the very threshhold, the petitioner cannot seek any help from the said Mahadanama. Even if for sake of assumption it is accepted that the property as stated by the petitioner, belonged to Tetari Devi and has devolved on her daughter Pushpa Devi, the mutation receipt belies this aspect when it admits the title of the said Pushpa Devi to only 6 dhurs of land as against the area of suit property being 3 Kathas 5 dhurs. That the said Pushpa Devi never chose to intervene in the eviction proceeding at any stage nor has raised any claim against plaintiff before any Court of law as regarding the suit property is another aspect drawn in favour of the plaintiff. The documents which have been led in the Court below and also enclosed with the counter affidavit, are sufficient proof of the title of the plaintiff over the suit property. The report submitted by the Police Inspector after conducting enquiry on the directions of the Superintendent of Police, Buxar further fortifies the position.

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The circumstances and the evidence as taken note of hereinabove does not leave any room for confusion that the plaintiff is the owner of the property and the petitioner was residing as a tenant in the premises. The bona fide requirement of the plaintiff in the suit premises has been discussed by the learned

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Patna High Court C.R. No.42 of 2012 (4) dt.10-10-2012

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trial Court in paragraph 10 of the impugned judgment while discussing the rival claims of the parties in the backdrop of the evidences taken on record and while discussing the issue the learned trial Court has come to a conclusion that with a growing family and with a common bath room, there was a bona fide requirement of the plaintiff for the entire premises.

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Perusal of the order impugned further manifests that no evidence on the issue of partial eviction was either led by the petitioner nor contested. The very finding of the learned trial Court on the issue of bona fide requirement of the plaintiff for entire premises, is sufficient explanation on the issue of partial eviction and that the requirement of the plaintiff would not be satisfied by a partial eviction of the petitioner. Quite understandably with a common bath room/ toilet and a growing family of the plaintiff, certainly no other finding could have been recorded by the learned Court below. The judgment and decree impugned neither suffers from any jurisdictional error nor suffers from any material irregularity.

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For the reasons aforesaid, this civil revision application is dismissed but without any order as to costs.

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Bibhash/-

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(Jyoti Saran, J)

Vikas Kumar Singh v. Om Prakash Mishra

Case brief

What is this about?

What did the court decide?

Vikas Kumar Singh v. Om Prakash Mishra

Case brief

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