Dismissed

Ishwari Prasad v. Ganesh Prasad

Patna HC17 Sept 2013CWJC/16242/2013

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the petitioner challenged the rejection of his execution petition by the Munsif Court. The court held that established landlord-tenant findings were final and that the petitioner was estopped from questioning his landlord's title under Section 116 of the Evidence Act.

What did the court decide?

The writ application under Article 227 seeking to interfere with the Execution Court's ruling is rejected.

Ishwari Prasad Vs Ganesh Prasad — Landlord and Tenant | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16242 of 2013

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====================================================== 1. Ishwari Prasad S/O Late Nanhak Chaudhary Resident Of Mohalla Jail Road, Ara Ward No. 22 (Old), P.S. Ara Town, District - Bhojpur .... .... Petitioner/s Versus 1. Ganesh Prasad S/O Late Ram Prasad Sah Resident Of Mohalla Milki Ara, P.S. Ara Town, District - Bhojpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Jitendra Kishore Verma For the Respondent/s : None ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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2 17-09-2013 In this application under Article 227 of the Constitution of India, petitioner is aggrieved by an order dated 6.7.2013 passed in Execution Case No. 20 of 1997 by learned Execution Munsif, Bhojpur, Ara, whereby the Court below has rejected the petition dated 24.4.2013 and supplementary petition dated 28.5.2013 filed by Judgment debtor/petitioner who was defendant in the Eviction Suit No. 17 of 1991.

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There are certain facts which are not in dispute. The respondent had filed the said Eviction Suit No. 17 of 1991 seeking eviction of the petitioner/defendant from the suit premises being a shop over Khata No. 632, Survey Plot

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No. 4427 and Municipal Plot No. 1153. The said suit was filed on the ground of personal necessity and default in making payment of rent. The said Eviction Suit No. 17 of 1991 was decreed on contest by a judgment and decree dated 10.9.1997 by learned 2^nd Munsif, Bhojpur, Ara. The appeal preferred against the said decree by the petitioner vide T.A. No. 45 of 1997 too was dismissed on 28.9.1999 by learned Additional District Judge, Bhojpur, Ara. Thereafter, Second Appeal No. 08 of 2000 against T.A. No. 45 of 1997 was also dismissed on 1.7.2003 by this Court. A review against the said judgment was preferred being Civil Review No. 120 of 2003, which was also rejected on 17.3.2004. In the meanwhile, the respondent had filed Execution Case No. 20 of 1997 for recovery of possession.

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It appears that the respondent, who had purchased the suit property from one Guru Charan Srivastava had filed a writ petition before this Court questioning an order of the Additional Collector, Bhojpur, Ara whereby the Additional Collector had directed the Sub-Registrar not to register sale deed No.10317, dated

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16.10.1990 and 10341 dated 19.10.1990. Through three sale deeds the suit property was transferred by Guru Charan Srivastava to the respondent. This is to be noted that the State of Bihar have filed a Title Suit No. 03 of 1992 claiming title over the suit property and probably this was the basis for the Additional Collector, Bhojpur, Ara for issuance of letter asking Sub-Registrar not to register sale deeds. This Court allowed the writ petition, setting aside the order of the learned Additional Collector, Bhojpur at Ara with an observations that the sale deed in question would be subject to result of the judgment and decree passed in Title Suit No. 03 of 1992. An appeal under the Letters Patent of this Court vide LPA N0. 454 of 2011 was preferred against the order passed in writ proceeding, which was allowed and the order of the writ Court was set aside on the ground that the property sought to be conveyed through those sale deeds were not identifiable and, therefore, in terms of Section 21 of the Registration Act, 1908, registration of the sale deeds could not have been made.

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The findings, that relationship of landlord and

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tenant existed between the petitioner and the respondent and that petitioner had been paying rent to the respondent, are concurrent up to the level of Second appeal decided by this Court. The plea of the petitioner, however, is that the respondent, in view of subsequent development could no more claim to be the landlord because the property which he claimed to have purchased through sale deeds from Guru Charan Srivastava have been held to be unidentifiable by this Court and, therefore, the decree before the executing Court is inexecutable. Learned counsel for the petitioner submits that the respondent claimed to have acquired title by purchase of the suit property from Guru Charan Srivastava who, in turn had purchased it from Kaushalya Devi. Kaushalya Devi had acquired interest over the property on the strength of a lease deed granted by the State of Bihar on 1.4.1927 for a period of 30 years. He submits that Kaushalya Devi had admittedly sold the suit property to the mother of Guru Charan Srivastava after the expiry of the said lease period. In such

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circumstance, neither the respondent nor his vendor had the title over the property from the very beginning. He submits that the Court below, in facts and circumstances of the case, ought to have stayed the execution proceeding till judgment of Title Suit No. 03 of 1992 filed by the State of Bihar claiming title over the suit property.

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Be that as it may, I am of the view that for the purposes of eviction suit the respondent is a landlord within the meaning of Bihar Building (Lease Rent and Eviction) Control Act, 1982 inasmuch as such relationship has been held to have been existing up to the stage of second appeal. The plea that in view of the order passed in the Letters Patent Appeal by this Court, the respondent had no locus standi any more to pursue the execution case is not sustainable. In my opinion, in any event, the petitioner cannot question in any way the initial title of his landlord i.e. respondent no.1 over the suit property. Such plea is barred under Section 116 of the Evidence Act, which reads thus:-

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“116. Estoppel of tenant; and of licensee of in No tenant of person possession.- immovable property, or person claiming

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through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when licence was given.”

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The definition of „landlord‟ under Section 2(f) of the Bihar Building ( Lease, Rent and Eviction) Control Act, 1982 is wide enough and includes a person, who for the time being had been receiving rent of the building. Section 2(f) of the Act reads as follows:

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“2(f) “Landlord”; includes the person who for the time being is receiving or is entitled to receive, the rent of the building, whether on his own account or on behalf of another, or on account or on behalf of for the benefit of himself and others or as an agent, trustee executor, administrator, receiver, guardian or who would so receive the rent to be entitled to receive the rent, if the building were let to a tenant;”

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Considering the provisions as contained in

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Section 2(f) of the Bihar Building ( Lease, Rent and Eviction) Control Act, 1982 and Section 116 of the

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Evidence Act, in the background of the finding that there existed relationship of landlord and tenant between the Respondent and petitioner which finding has attained finality, I do not find any merit in this application.

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This application is, accordingly, rejected.

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(Chakradhari Sharan Singh, J)

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Arun Kumar/-

Ishwari Prasad v. Ganesh Prasad

Case brief

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Ishwari Prasad v. Ganesh Prasad

Case brief

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