Dismissed

Saroj Kumar Singh v. Sushila Devi

Patna HC7 Dec 2012SA/56/2011

Case brief

AI extract

What is this about?

In this second appeal regarding an eviction suit, the court held that no substantial question of law was involved. The lower appellate court had recorded a pure finding of fact establishing a landlord-tenant relationship, which cannot be interfered with. Consequently, the appeal was dismissed at the admission stage.

What did the court decide?

Second appeal dismissed at the admission stage as no substantial question of law is involved.

Saroj Kumar Singh Vs Sushila Devi — Landlord and Tenant | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.56 of 2011

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====================================================== Saroj Kumar Singh son of late Jawala Singh, resident of village Dalippur, P.S. Jagdishpur, Dist. Bhojpur at present resident of Mohalla Moti Tola, Ara Baluahi, P.S. Arrah Town, Dist. Bhojpur. .... .... Appellant/s Versus Sushila Devi wife of late Chanchal Singh, resident of village Dalippur, P.S. Jagdishpur, Dist. Bhojpur, at present resident of Moti Tola, Ara, Baluahi, P.S. Arrah Town, Dist. Bhojpur Plaintiff-appellant--. Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Anish Chandra Sinha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO

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ORAL ORDER

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11 07-12-2012 Heard learned counsel Mr. Anish Chandra Sinha, for the appellant under Order 41 Rule 11 of the Code of Civil procedure.

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The defendant respondent –appellant has filed this Second Appeal against the judgment and decree dated 18.12. 2010 passed by the learned District Judge, Bhojpur Ara in Title Appeal No. 109 of 2009 whereby the lower appellate court allowed the appeal and set aside the judgment and decree of the trial court dated 06.7.2009 passed by the Subordinate Judge VII, Bhojpur, Ara in Eviction Suit No. 08

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Patna High Court SA No.56 of 2011 (11) dt.07-12-2012

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of 2007.

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The plaintiff-respondent filed the aforesaid Eviction Suit No. 08 of 2007 against the defendant-appellant on the ground of default and personal necessity. According to the plaintiff she purchased the suit land by a registered sale deed on 01.9.1980 and constructed a house thereon. Subsequently in the month of January 1990 she inducted the defendant as tenant on monthly rent of Rs. 400/- per month. The defendant paid the rent for few months only and thereafter he defaulted.

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The defendant appeared and filed contesting written statement alleging that the plaintiff is the Aunty of the defendant and the suit property is the joint family property and the defendant is residing therein as a member of the joint family. Therefore, there is no relationship of landlord and tenant between the parties.

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The trial court after considering the material and evidences on record recorded the finding that the property is the joint family property and the defendant is residing in the suit property as a member of joint family, therefore, there is no relationship of landlord and tenant between the parties. The trial court also recorded the finding that the defendant is

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Patna High Court SA No.56 of 2011 (11) dt.07-12-2012

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not the tenant of the plaintiff because no Kirayanama was produced in support of it that there is relationship of landlord and tenant. The trial court also recorded the finding that there is no personal necessity. Accordingly the trial court dismissed the plaintiff‘s suit.

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The plaintiff filed Title Appeal before the appellate court. The lower appellate court considering the sale deed produced by the plaintiff recorded a finding that in fact the plaintiff is the owner of the property and on the basis of the evidences produced by the plaintiff recorded the finding that the defendant is a tenant inducted by the plaintiff. The plaintiff inducted him without executing the Kirayanama because the relationship of Aunty and Nephew was there, therefore, the plaintiff trusted on the defendant. The appellate court also recorded that the defendant is in permissive possession. The appellate court also recorded a finding that defendant is a defaulter and then allowed the appeal.

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Learned counsel apearing on behalf of the appellant submitted that the trial court recorded the finding that the property is joint and there is no evidence produced by the plaintiff to show that there is relationship of landlord and

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Patna High Court SA No.56 of 2011 (11) dt.07-12-2012

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tenant between the parties. The defendant is residing in the suit property as he is a member of the joint family and there has been no partition between the parties. In such circumstances the lower appellate court could not have reversed the finding of the trial court. The learned counsel relied upon a decision of the Apex Court reported in the case of Rajendra Tiwary Vs Basudeo Prasad & another (A.I.R. 2002 SC 136) and submitted that in this case the lower appellate court could not have decided the title and could not have granted the relief on the basis of the finding that the defendant is in permissive possession of the property because there is neither any pleading of the plaintiff nor any evidence was adduced by the plaintiff regarding the permissive possession. The leaned counsel further submitted that there is no evidence at all regarding defaulter but the lower appellate court has wrongly recorded the finding that the defendant is defaulter.

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From perusal of the lower appellate court judgment it appears that lower appellate court categorically recorded a finding that there is relationship of landlord and tenant between the parties. If the submission of the learned counsel that Kirayanama was not produced is concerned, it

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may be mentioned here that the relationship of the plaintiff is that she is the Aunty of the defendant. The finding of the appellate court is that because of this relationship the plaintiff trusted on the defendant and therefore, no Kirayanama was executed nor any rent receipt was granted but the learned appellate court considering the evidence of the plaintiff recorded finding that there is relationship of landlord and tenant between the parties. So far the submission of the learned counsel that the lower appellate court could not have recorded a finding that the defendant is in permissive possession is concerned, as stated above from the perusal of the judgment of the lower appellate court it is not the fact. The lower appellate court has not granted the relief only on the finding that the defendant is in permissive possession rather the finding is also that there is relationship of landlord and tenant between the parties. And the plaintiff inducted the defendant as tenant 20 years ago. So far this finding is concerned, it is pure finding on fact and therefore, it cannot be interfere with in second appellate jurisdiction. It is well settled principle of law that if finding recorded by the lower appellate court is finding of fact then the same cannot be interfered with even if on the basis of the evidence another

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view is possible because the High Court has no jurisdiction to re-appreciate the evidence and substitute its own finding of fact as has been held by Apex Court in (2009) 4 SCC page 244 Koppisetty Venkat Ratnam vs Pamarti Venkayamma .

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So far the decision relied upon by the appellant i.e. A.I.R. 2002 SC 136 is concerned, it appears that in that case both the courts below concurrently found that there is no relationship of landlord and tenant between the parties but the court granted the decree in exercise of jurisdiction Under Order 7 Rule 7 & recording a finding that the plaintiff is the owner of the property. In the present case no decree has been granted on the basis that the plaintiff is the owner of the plaintiff.

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Learned counsel for the appellant submitted that the title of the plaintiff could not have been decided in a case filed under the Special Act i.e. Bihar Building (Lease Rent and Eviction) Act, 1982. So far this submission is concerned it may be mentioned here that the plaintiff has also prayed for the eviction on the ground of personal necessity. Therefore, it is necessary for the court to decide the title because if the plaintiff has got title to the property then

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Patna High Court SA No.56 of 2011 (11) dt.07-12-2012

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only she will be able to claim the eviction on the ground of personal necessity. Moreover in the present case the defendant raised the question of title and he claimed that in fact the suit property is the joint family property. However, the defendant did not dispute the fact that the property is purchased by the registered sale deed on 01.9.1980 which is in the name of the plaintiff only. Admittedly therefore, the suit property is standing in the name of the plaintiff Shushila Devi

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The claim of the defendant is that the property is the joint family property. So far this defence of the defendant is barred under section 4 of the Benami Transaction (Prohibition) Act 1988 because a female member of the joint family cannot be coparcener. In the case of Rameshwar Mistry reported in A.I.R. 1991 Patna page 53. Hon’ble Mr. Justice S.B. Sinha as he then was held that if the property is standing in the name of female member and it is claimed that it is joint family property the defece will be hit under section 4 of the Banami Transaction Act.

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From the perusal of the trial court judgment it appears that the trial court recorded a finding that the property is joint family property and there is no partition

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between the parties and the defendant is residing, there therefore, there is no relationship of landlord and tenant. Considering this fact the lower appellate court reversed the finding.

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finding.

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In view of the above discussion, none of the grounds raised by the defendant is a substantial question of law. Therefore, in my opinion, no substantial question of law if involved in the present second appeal. Therefore this second appeal is dismissed at the admission stage itself.

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(Mungeshwar Sahoo, J)

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M.Rahman/-(AFR)

Saroj Kumar Singh v. Sushila Devi

Case brief

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Saroj Kumar Singh v. Sushila Devi

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