Dismissed

Kailash Sha v. Anand Kumar

Patna HC14 May 2013SA/504/2011

Case brief

AI extract

What is this about?

In a second appeal regarding eviction suits based on personal necessity and rent arrears, the High Court dismissed the appeal. The court held the dispute involved questions of fact, not a substantial question of law, and affirmed the first appellate court's finding on the landlord-tenant relationship and estoppel.

What did the court decide?

The second appeal was held ineligible for admission and was dismissed.

Kailash Sha Vs Anand Kumar — Landlord and Tenant | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.504 of 2011

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====================================================== Kailash Sha son of Late Raghunath Sha, resident of village-Dahiyawa Tola, P.O.-Chhapra, P.S.-Chhapra Town, Dist.-Saran, at present residing at Mahullan Chamar Toli, Gopalpur, P.O.-Motihari, P.S. Motihari, Dist. East Champaran. ....Appellant…Respondent…Defendant Versus Anand Kumar son of Late Sachinand Sinha, resident of Chamar Toli, Gopalpur, P.O.+ P.S.-Motihari, Dist.-East Champaran. .... .... Respondent…Appellant …Plaintiff ====================================================== Appearance : For the Appellant/s : Mr. Kishore Kumar Sinha Mr. Anil Kumar Tiwary For the Respondent/s : Mr. Kumar Uday Singh Mr. Vijay Shankar Shrivastava

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====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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C.A.V. ORDER

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10 14-05-2013 The appellant, who was defendant before the trial Court in

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an Eviction Suit, is aggrieved by the judgment and decree dated 24.05.2011 and 06.06.2011 respectively, passed by learned 7^th Additional District Judge, East Champaran, Motihari in Eviction Appeal No. 1/2010 whereby he reversed the judgment and decree dated 05.05.2010 and 18.05.2010 respectively, passed by learned Sub-Judge-5, Motihari in Eviction Suit No. 2 of 1995 and Money Suit No. 3 of 1995.

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The Eviction suit No. 02/95 was filed by one Sachidanand Sinha against Raghu Nath Sah on the ground of personal necessity whereas Money Suit No. 3/95 was filed by same plaintiff against the same defendant with respect to the same

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property on the ground of default in payment of rent.

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It appears that during the pendency of the suit, the original plaintiff and defendant died and their representatives were brought on record who were parties before the first appellate Court and are parties in the present second appeal.

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As per the plaintiff, he had let out the suit premises to original defendant Raghu Nath Sah on monthly rental of Rs. 110/per month on 01.08.1986. The suit premises stood on plot No. 9 and 10 which were amalgamated and were in possession of the vendor of the plaintiff. After having purchased the suit premises the plaintiff came in possession of the suit premises. The plaintiff was a retired Income Tax employee and had started his practice as an Advocate in Civil Court, Motihari and had also his unemployed son. He, therefore, for the purpose of his office as well as for the purpose of opening a shop for his son, was in need of suit premises. Plaintiff also claimed that the defendant did not pay rent of the suit premises from September, 1992. On a request being made to the defendant for vacating the suit premises for these reasons, the defendants refused and stopped payment of rent thereafter. This necessitated the plaintiff to file the two suits, one seeking eviction from suit premises and the other for payment of arrears of rent.

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The original defendant Raghunth Sah filed his affidavit seeking leave to contest in Eviction Suit No. 2/95 and filed his written statement in Eviction Suit No. 3/95. In his affidavit the defendant admitted that he was tenant in the plaintiff‟s house constructed only on plot No. 9 and he further said that he vacated the premises on 31.10.1992. The defendant disputed in his written statement the relationship of landlord and tenant because as per the defendant, he had been residing in his house constructed upon Plot No. 10 which was a Gairmazarwa land and plaintiff had no concern with the plot No. 10, but in order to grab the land of the defendant, the plaintiff was making a false claim over plot No. 10. On the basis of rival pleadings, learned trial Court formulated eight issues. However, the issues which are important for adjudication of the present appeal and go to the root of the matter are being quoted hereinbelow:-

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“(iii) Whether there is relationship of landlord and tenant in between the parties with respect to the suit premises?

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(iv) Whether any portion of the suit plot No. 10 ever belonged to the plaintiff?

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(v) Whether the structures standing over suit plot No. 10 in possession of the defendant was ever the subject matter of the tenancy in between the parties?

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(vi) Whether the plaintiff is entitled for the alleged arrears of rent as claimed?

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(vii) Whether the personal need of the suit premises as alleged by the plaintiff is correct?”

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After the issues having been framed, the parties led oral

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and documentary evidence in course of trial.

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On the basis of such evidence both oral and documentary, learned trial Court decided all the eight issues so framed against the plaintiff and dismissed the suit. The son of the plaintiff, who is the appellant herein, thereafter, filed the appeal under Section 96 of the Code of Civil Procedure.

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Learned first appellate Court on the basis of the pleadings of the parties, the evidence adduced in course of trial, findings of the trial Court and submissions advanced on behalf of the parties before it Court formulated following two points for determination:-

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a) “Whether there is relationship of landlord and tenant in between the parties with respect to the suit premises as detailed in the plaint?

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b) Whether the plaintiff / appellant is entitled for decree as claimed?”

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Learned first appellate Court on the basis of scrutiny and analysis of evidence available on record, however, came to a finding that the plaintiff had let out his building to the defendant and admittedly he did not pay any rent since 31.10.1992. He also came to a finding that the defendant had no right and title over the plot No. 10 and even as per the report of Survey Knowing Pleader Commissioner, the suit premises which included Plot No. 9 and 10 did not have their separate identity on spot.

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Learned first appellate Court also came to a finding that all surrounding plot of Plot No. 10 belonged to the plaintiff and the suit premises had been in possession of the plaintiff which was let out to the defendant on rental of Rs. 110/- per month. Learned first appellate Court accordingly came to a conclusion that there was relationship of landlord and tenant between the parties.

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Learned first appellate Court after having held thus decided point No. 2 against the defendant as admittedly he had not been paying rent to the plaintiff since 31.10.1992. Learned first appellate Court, on the basis of appraisal of evidence held that the plaintiff was in personal need of the suit premises for his personal occupation and was also entitled to get the arrears of rent. Accordingly, the judgment and decree passed in Eviction Suit No. 2/95 and 3/95 was set aside and the appellant / respondent was ordered to vacate the suit premises within three months of the order.

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The present second appeal has been filed on the ground that learned first appellate Court misconceived and misconstrued the facts and circumstances of the case and arrived at erroneous conclusion.

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Mr. Anil Kumar Tiwary, learned counsel appearing on behalf of the appellant has contended that the first Appellate Court

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did not discuss any oral testimony either of the plaintiff witnesses or defendant witnesses and that finding of the first appellate Court was based on conjecture and surmises. He has submitted that the first Appellate Court wrongly held the plaintiff to be landlord of the premises standing on plot No. 10 and failed to appreciate the correct definition of “landlord” within the meaning of Bihar Building (Lease, Rent and Eviction) Control Act, 1982. He has further submitted that the learned first appellate Court wrongly shifted the burden upon the appellant / defendant to prove his assertion that he had vacated the suit premises on 31.10.1992 and shifted to the premises other than the one where he was earlier residing by virtue of being tenant of the plaintiff.

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Mr. Kumar Uday Singh, learned counsel appearing on behalf of the respondent on the other hand, while supporting the judgment of the first appellate Court contended that as per his own admission, the defendant was initially inducted as tenant in a room of plot No. 9 on rental of Rs. 100 per month. He submitted that the defendant developed a case that the tenancy came to an end with effect from 31.10.1992 after he is said to have vacated the room. In such circumstances, he contended, that once the defendant/appellant failed to prove his case of having vacated the house, he was estopped from questioning the title of the

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plaintiff/respondent over the suit premises. He submits that on the basis of evidence adduced in course of trial the defendant / appellant miserably failed to establish his case that he vacated the suit premises on 31.10.1992 and shifted to some other premises. He further submitted that there were unimpeachable evidence on record to come to a finding that the building constructed by the plaintiff/respondent was on plot No. 9 and 10 both. Referring to the plea of the defendant before the trial Court that after having left tenanted house on 31.10.1992, the defendant constructed his house on plot No. 10 which was settled in his favour by Government of Bihar, learned counsel for the respondent would submit that the tenant did not bring on record any chit of paper in support of his plea that the Plot No. 10 was settled in his favour by the Government of Bihar.

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Mr. Singh has submitted, in the background of the pleadings and evidence on record that once the appellant admitted to be tenant of the plaintiff /respondent and having failed to prove his story of having vacated the suit premises, he could not turnaround and question the title of the plaintiff over the suit property in view of Section-116 of the Evidence Act and the law laid down by the Supreme Court thereon reported in 2006(5) SCC 532 (Bhogadi Kannababu and others V. Vuggina Pydamma and

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others). He has also placed reliance on a judgment of this Court reported in 2005(1) P.L.J.R. 529 (Mastan Khan V. Mohammad Islam) to contend that the definition of landlord within the meaning of Section 2(f) of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 was very wide.

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He has also placed strong reliance on a judgment reported in 1999(3) SCC 722 (Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others) to submit that the findings of fact arrived at by the learned first appellate Court being based on proper scrutiny and appreciation of evidence; the appellant herein has not been able to make out any case for interference in exercise of power under Section 100 of the Code of Civil Procedure in a second appeal.

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From the perusal of the impugned judgment it appears that the first appellate Court took into account the evidence of the parties, both oral and documentary adduced in course of trial. The first appellate Court also took into account the fact that initially Eviction suit No. 3 of 95 was filed for only 5 dhurs of land for eviction from the portion of Plot No. 9 but in Eviction Suit No. 2/95, the suit premises has been described as total area of 5 dhurs of Plot No. 9 and 10. However, by amendment in the plaint the area of suit premises was extended to 19 ¼ dhurs. In the plaint,

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originally the suit premises had been described as Pucca Khapraphosh and Phoos house including courtyard but by amendment latrine kitchen and latrine-tank had also been added. Learned first appellate Court on perusal of the report of the Survey Knowing Commissioner (Exhibit „3‟) was of the opinion that the suit premises was located on portion of plot No. 9 and 10 both, which contained Pucca and Khapraphos and Phoos house, latrine with a long courtyard etc. The Pleader Knowing Commissioner further found that Plot No. 9, 10, 11 and 12 were amalgamated with each other and admittedly Plot No. 9, 11, 12 belonged to the plaintiff. Learned first appellate Court also came to a finding that there was no separate identity on spot of plot No. 10 from plot No. „9‟ which had been stated as suit premises of this case. The first appellate Court took note of the fact, in the background of such material, that defendant took specific plea that he vacated the rented house on 31.10.92 which was constructed only on Plot No. 9 and he constructed his own house on Plot No. 10 which had been settled in his favour. Learned first appellate Court therefore, was of the opinion that the entire onus shifted upon the defendant/appellant to prove his claim of having vacated the house and shifted to a house constructed by him.

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From paragraph-12 of the judgment of the first appellate

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Court, it appears that the first appellate Court considered the evidence of D.W.-2 who in paragraph-9 of his evidence deposed that prior to residing in the disputed house also the defendant had been residing in the same house. Learned first appellate Court considered the evidence of other defendant witnesses also and finally came to the finding that the appellant / defendant could not prove that he vacated the suit premises on 31.10.1992 and constructed his own house on the land which was not in possession of plaintiff / respondent.

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In view of the rival submissions, I am of the view that the dispute which has been raised in the present second appeal on behalf of the appellant are purely questions of fact and the present second appeal does not involve any substantial question of law. Learned counsel for the appellant has mainly attacked the findings of the first appellate Court on the ground that it wrongly appreciated the evidence on record and did not consider the oral evidence adduced in course of trial and rejected the competence of witnesses who deposed in favour of the appellant/defendant wrongly. However, on perusal of the judgment of the learned first appellate Court it would appear that it has appreciated the evidence on record and assigned satisfactory reasons for not accepting the evidence of some of the D.W.s as it would be

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evident from paragraph No. 15 of the judgment under appeal. I agree with the submission made on behalf of the respondents that it is not within the domain of the High Court to investigate the grounds on which findings were arrived at by the last court of fact, being the first appellate Court. Learned counsel for the appellant is right in placing his reliance on Supreme Court judgment reported in 1999(3) SCC 722 (Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others) paragraph-5 of which is being quoted hereinbelow for ready reference:-

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“5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. ”

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I do not find any perversity or even infirmity with the

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reasoning assigned by the first appellate Court to reach to the finding that there existed relationship of landlord and tenant

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between the plaintiff and defendant in view of the wide amplitude of definition of landlord occurring under Section 2(f) of the Bihar Building ( Lease, Rent and Eviction) Control Act, 1982 which reads thus:-

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reads thus:-

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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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In the present case, in view of admitted fact that the

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defendant / appellant paid rent to plaintiff/respondent existence of landlord-tenant relationship initially is not in dispute. There is no proof of cessation of such relationship, as claimed by the defendant. The defendant having failed to prove his case that he vacated the suit premises and that he constructed a separate house/building for his living in the adjacent plot, is estopped from questioning the title of the plaintiff over the suit land on the basis that the land was a Gairmazarwa land. Plaintiff in such circumstance could not claim title over the same. Such plea is hit by Section 116 of the Evidence Act which reads as follows:-

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

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in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”

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This view is supported by a judgment of Supreme Court

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reported in 2006(5) SCC 532 paragraphs No. 16 to 18 which are

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being quoted hereinbelow:-

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“16. The High Court in its judgment held that although Pydamma was not entitled to inherit the properties of Suryanarayana then also she was entitled to maintain eviction proceeding and obtain a decree/order for eviction under the A.P. Tenancy Act. The High Court in its impugned judgment held that only Respondents 2 and 3 were entitled to succeed the properties in question and accordingly modified the findings of the Special Officer and the Appellate Authority holding that the daughters of late Suryanarayana who were Respondents 2 and 3 were entitled to succeed the properties of late Suryanarayana but not Pydamma. However, the High Court in its impugned judgment directed the eviction of the appellants not only in favour of Pydamma, the original applicant, but also in favour of Respondents 2 and 3.

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18. This view was also recognised by this Court in Atyam Veerraju V. Pechetti Venkanna. Similar view has also been expressed in a later decision of this Court in Tej Bhan Madan v. II ADJ in which it was held that a tenant was precluded from denying the title of the landlady on the general principles of estoppel between landlord and tenant. It was held that the principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. In our view, Section 116 of the Evidence Act is clearly applicable in the present case, as held by the High Court in the impugned order. The finding of fact of the High Court and the trial court that the appellants were let into possession by Pydamma and that possession was not restored to her by surrender, was based on consideration of material evidence on record, which cannot be disturbed by us. Therefore, in our view, even if Respondent 1 Pydamma, was not entitled to inherit the properties in question of late Suryanarayana then also she could maintain the application for eviction and obtain a decree/order of eviction on the ground of default and sub-letting under the A.P. Tenancy Act. We keep it on

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record that the learned counsel appearing for the appellants did not raise any objection on the findings of the High Court regarding default and sub-letting, before us. ”

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In view of the above, I am of the view that the finding of the learned first appellate Court cannot be said to be perverse. The learned first appellate Court has assigned sufficient and cogent reasons for differing with the findings of the trial Court before setting aside the judgment and reaching to its own conclusion. The present second appeal does not involve any substantial question of law which requires adjudication / determination for the purpose of Section 100 of the Code of Civil Procedure. The appeal does not merit admission and is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J.)

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Saif/-

Kailash Sha v. Anand Kumar

Case brief

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Kailash Sha v. Anand Kumar

Case brief

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