Rajendra Prasad Sah vs Babua Keshri
2022 Latest Caselaw 1625 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     S.A. No.145 of 2012
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1. Rajendra Prasad Sah

2. Santara Devi .... .... .... Appellants Versus Babua Keshri .... .... .... Respondent

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Appellants : Mr. S.N. Das, Advocate For the Respondent : Mr. Amar Kumar Sinha, Advocate

C.A.V. ON: 14.03.2022 PRONOUNCED ON 22.04.2022

1. Plaintiff-landlord is before this Court in appeal, whose suit for eviction was decreed and reversed in appeal by the Appellate Court in Title (Eviction) Appeal No.01 of 2012.

2. Plaintiff no.1- Rajendra Prasad Sah filed the suit for eviction of suit premises which is one room shop detailed in the plaint on the ground of default in payment of rent and personal necessity. Plaintiff no.2 Santra Devi was impleaded as plaintiff no.2 vide order dated 26.2.2009.

3. The case of the plaintiffs is that plaintiff no.1 is the owner and landlord of the building in which the schedule property is a shop in which defendant- Babua Kesri was a tenant and the tenancy was created by plaintiff no.1 in favour of defendant no.1 on the basis of Kirayanama dated 30.08.2005 executed by the defendants. As per the terms of tenancy, the defendant tenant was to pay monthly rent of Rs.600/- by the first week of month next and pursuance of which the defendant was paying rent to the plaintiff no.1 against proper receipt since after the execution of Kiryanama. The said building originally belonged to one Santara Devi (plaintiff no.2), who executed an agreement of sale dated 19.04.1999 after receipt of full consideration amount and gave the physical possession of the house to plaintiff no.1 in part performance of the contract of sale under Section 53A of the Transfer of Property Act. Santara Devi has been impleaded in the suit as plaintiff no.1 vide order of amendment dated 26.02.2009. The defendant was in occupancy of tenanted premises as a tenant and Santara Devi had been running shop of cosmetic goods therein. After delivery of possession of building along with suit premise, the said vendor, plaintiff no.2-Santara Devi informed the defendant about the transfer of property requesting him to attorn his tenancy in favour of plaintiff no.1 and to make payment of rent to him directly.

4. In spite of due information, the defendant refused to make payment of rent to plaintiff no.1 which resulted in institution of Title (Eviction) Suit No.24 of 2001 against the defendant by Santara Devi impleading plaintiff no.1 as co-plaintiff for eviction of defendant. The said suit culminated in a compromise decree in which plaintiff no.1 was admitted to be landlord with respect to the suit premises. The major portion of the building in which the shop is situated, was in dilapidated condition and the plaintiff no.1 proposed to construct a market complex and offered to defendant to give one shop which the defendant did not agree. The default in payment of rent has also been pleaded.

5. The specific plea of defendant in the written statement is that the suit property does not stand recorded in the name of plaintiff but is recorded in the name of Satyanarayan Marwari in the Register 2 of Khas Mahal, Sahebganj. The plaintiff managed to get a Kirayanama executed on 30.8.2005 on the basis of some assurances made by the plaintiff by misleading defendant. The tenancy was created by Santara Devi. As a matter of fact, the plaintiffs are not the owners of shop. It is further contended that Santara Devi had entered into an oral agreement that defendant had sold suit premises for total consideration of Rs.75,000/- and had accepted Rs.25,000/- as advance on 13.05.1999 and on such agreement their relationship of landlord and tenant came to an end and the defendant became owner of suit premises with regard to compromise in Title (Eviction) Suit No.24 of 2001. It is pleaded that the compromise petition was defective and cannot be binding on the defendant. The plea of proposed construction of market complex has been denied.

6. On the basis of pleadings of the parties, the following main issues have been framed by the learned Trial Court:-

I. Is plaintiff landlord and owner of suit property? II. Is defendant is tenant under the plaintiff?

III. Does the relationship of landlord and tenant exist between the plaintiff and defendant with respect to suit property?

IV. Whether the defendant has avoided the terms of tenancy by making himself liable to be evicted from the suit premises?

V. Whether defendant has forfeited his tenancy by denying the plaintiff as the landlord of the suit premises?

VI. Is the Kirayanama executed by the defendant in favour of plaintiff is valid?

7. The Trial Court decreed the suit of eviction on the ground that defendant was tenant under Santara Devi (Plaintiff No.2) before purchase of the suit premise by the plaintiff no.1 (Rajendra Prasad Sah). After the purchase, there existed a relationship of landlord and tenant between plaintiff no.1 and defendant. Secondly, Kirayanama has been duly proved to be valid. Thirdly, plaintiff no.1 purchased the suit property and got into possession under an agreement of sale and under power of attorney, for extension of market complex and the requirement of the plaintiff was bonafide.

8. The appeal has been allowed mainly on the ground that plaintiff no.1 was not the landlord of the defendant as he failed to prove his ownership. The suit has been admitted to be heard on the following substantial question of law:-

"Whether the Lower Appellate Court has erred in entering into the question of title of the plaintiff in a suit brought under Section 11(1)(c) and 11(1)(d) of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1992."

9. It has been admitted in Para 12 of the written statement that Santara Devi (plaintiffno.2) had let out the suit premises to the defendant. It has also been admitted in para 10 that a " kirayanama" had been executed on 30.8.2005 and as per kirayanama defendant was paying rent of Rs 600/- per month to the plaintiff regularly. However the relation of landlord and tenant has been denied and it is contended that he was in suit premises on the basis of an oral agreement of sale for a total consideration of Rs 75,000 and plaintiff Santara Devi had accepted a sum of Rs 25,000/- on 13.5.99 and the relationship of landlord and tenant with Santara Devi ceased and he became the owner of the suit property.

10. From the above it shall be evident that defendant has taken contradictory plea. While on the one hand it has been pleaded that the relationship of landlord and tenant came to an end on 13.5.1999 after accepting the advance sum of ₹ 25,000, but it has also been stated that a Kirayanama was entered on 30.8.2005 and ₹ 600 per month is being paid to the plaintiff regularly. Ext.2 is the kirayanama entered between Rajendra Prasad Sah (plaintiff no.1) and Babua Kesri (defendant) on 30.8.2005. Ext 1 is the municipal rent receipts with respect to the suit property in the name of plaintiff no.1. Exhibit 7 is the original agreement dated 19.04.99 and Exhibit 8 is the power of attorney executed by the owner (plaintiff no.2) of the suit premises in favour of plaintiff no.1. Further Exhibit 9 is the joint compromise

petition on behalf of both the sides in T. Eviction Suit no.24/01 between Santara Devi and Babua Keshri signed by the defendant in which it has been admitted that plaintiff third party Rajendra Prasad Sah was landlord of suit property through the defendant Babua Kesri and also defendant was accepted as tenant through the plaintiff third party.

11. Considering the above unimpeachable evidence of tenancy the learned trial court decreed the suit for eviction on the ground of personal necessity as well as default in payment of rent.

12. The court of first appeal completely misdirected itself and entered into the question of title of the suit property. The point number one for determination was framed as to whether the plaintiff had been conferred the right title and trust over the suit premises. In eviction suit brought under Bihar Buildings (Lease Rent and Eviction) Control Act, 1992 it is for the court to see whether landlord and tenant relationship exists and not the ownership of the property. The learned court also lost sight of the fact that the original owner had also been impleaded in the suit as plaintiff no.2 and she never questioned the title of Plaintiff no1. The defendant himself had admitted the relationship of landlord and tenant by filing the joint compromise petition (Ext9) in the earlier eviction suit filed by plaintiff no.2 against the defendant. As discussed above a Kirayanama had also been signed by the defendant with plaintiff no1. It is surprising that all these evidences of tenancy have been brushed aside and the court of appeal embarked on investigation into title in suit for eviction. It is fundamental principle as laid down under Section 116 of the Evidence Act that once the landlord-tenant relationship is established, the tenant cannot question the title of the landlord. Here in the instant case as discussed above tenancy has been established, therefore the question of title could not have been permitted to be raised that too when the original owner has herself joined the suit as plaintiff no.2.

In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335 it was observed that under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant." Jaspal Kaur Cheema v. Industrial Trade Links, (2017) 8 SCC 592

10. Section 116 deals with estoppel of a tenant founded upon contract between the tenant and his landlord. It enumerates the principle of estoppel which is merely an extension of principle that no person is allowed to

approbate and reprobate at the same time. The tenant who has been let into possession cannot deny his landlord's title.

13. In view of the above where tenancy has been established by unimpeachable evidence, the question of title cannot be raised by the tenant in an eviction case. The substantial question of law is accordingly answered in favour of the plaintiff/appellant.

The impugned Judgment and decree of the first appellate Court is set aside and the Judgment and decree of the trial Court is restored.

The appeal is allowed with cost. The cost assessed at Rs 50,000/- through out to be paid by the respondent/defendant to the plaintiff no.1 and 2. Consequently, I.A. No. 2501 of 2020 stands disposed of.

There is a long line of judicial precedents wherein the order of restitution has been passed to discourage unjust enrichment by using protracted litigation as tool in perpetuating the illegal possession. The object of passing such an order is to restore to the successful party of what it had lost and been deprived of. Restitution, simply stated, means restoring to the successful party(whether a plaintiff or defendant's) what would have been his position, for him if the litigation had not been filed or the contest offered. In other words, it is compensating him for all losses and deprivations suffered after the commencement of the litigation and because of pendency of litigation. Party who makes a claim or a defence before a court of law must do so with responsibility. He should know that making a wrong claim or defence, particularly on facts will not yield any benefit but make him liable for the losses.

The Delhi High Court imposed a cost of Rs 15,10,000 to be recovered from the petitioners jointly and severally in Padmawati v. Harijan Sewak Sangh,(2008) 0 Supreme (Del) 1120 also excerpted in 2012 (6) SCC 461 and observed " Before parting with this case, I consider it necessary to pen down that one of the reasons for overflowing of the court dockets is the frivolous litigation in which the courts are engaged by the litigants and which is dragged on for as long as possible. Even if these litigants ultimately lose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the courts must be made to pay the sufferer not only the entire illegal gains made by

them as costs to the person deprived of his right, but also must be burdened with exemplary costs. The faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make the wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years' long litigation. Despite the settled legal positions, the obvious wrongdoers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the courts."

This was approved by Honourable the Supreme Court in Indian Council for Enviro-Legal Action Vs Union of India (2011) 8 SCC 161 at para 174 and 175.

In present case where the defendant by dragging on the litigation since the filing of the suit about 14 years ago has been successful in continuing with his illegal occupation for long, even after renouncing the tenancy. Even before this suit, Title eviction suit 24 of 2001 was filed by the plaintiff no.2 against the defendant which finally ended in compromise wherein plaintiff no.1 Rajendra Prasad Sah was accepted as a landlord. Now in the present suit the defendant renounced the tenancy and claimed ownership on the basis of oral agreement disputing the title of the plaintiffs. Unless tenant filed suit for specific performance of the said oral agreement and obtained a decree, the eviction suit should have been decreed immediately on filing of the written statement denying the tenancy. However, the matter has dragged on for 14 years and court resources have been wasted. These facts speak volume about the conduct of the defendant respondent.

Plaintiffs are entitled to mesne profit of the market rent of the suit property from the date of the decree that is 3rd March 2012 of the suit by the trial Court from the defendant.

For this purpose the plaintiff appellant may apply to the original court for enquiry into mesne profits. He shall do so within three months, for that

limited purpose the suit filed is remanded to the trial court.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 22nd April, 2022 AFR / Anit