Bhoodeo Mandal vs Mazhar Imam
2023 Latest Caselaw 549 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Second Appeal No. 85 of 2012

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Bhoodeo Mandal, son of late Brijendra Mandal, resident of Pachamba, Giridih, P.O. and P.S. -Giridih, District-Giridih ...Defendant/Appellant/Appellant

-- Versus --

1.Mazhar Imam

2.Azahar Imam Both sons of Md. Atiullah

3.Md.Atiullah, son of late Seikh Subedar Ali All residents of Pachamba, P.O. + P.S. -Giridih(T), District-Giridih ... Plaintiffs/Respondents/Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Appellant          :- Mr. Ayush Aditya, Advocate
       For the Respondents        :- Mr. Ashish Kumar Thakur, Advocate
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18/02.02.2023       Heard Mr. Ayush Aditya, the learned counsel appearing on

behalf of the appellant and Mr. Ashish Kumar Thakur, the learned counsel

appearing on behalf of the respondents.

This second appeal has been filed against the judgment

dated 12.06.2012 and the decree following thereupon signed on

22.06.2012 passed in Eviction Appeal No.05 of 2007 dismissing the

appeal and confirming the judgment dated 31.07.2007 and decree

following thereupon signed on 13.08.2007 passed by learned Munsif,

Giridih, in Eviction Suit No.05 of 1999.

The suit was instituted by the respondents/plaintiffs to

handover the vacant possession of the schedule-A to the respondents/

plaintiffs within a period fixed by the Court. The suit was decreed by the

judgment dated 31.07.2007.

Being aggrieved with that, the appellant/defendant has filed

the Title Appeal No.05 of 2007 which was decided by the judgment dated

12.06.2012 by the learned Principal District Judge, Giridih, whereby the

appeal was dismissed and the judgment of the learned trial court was

affirmed.

Aggrieved with that, the present second appeal has been

filed.

The suit was instituted before the learned trial court alleging

therein that respondents/plaintiffs instituted the aforesaid eviction suit

against the appellant/defendant stating interalia that Suit premises

described in Schedule A to the plaint was exclusive property of one Karim

Bux, who died leaving behind him sole daughter Bibi Rafikan. As such,

Bibi Rafikan inherited the said property and came into actual physical

possession thereof. Since, Bibi Rafikan was a pardanasheen lady hence

she appointed Abdul Razzak s/o Late Nawab Ali as Rakhwalikar for

looking after the cultivation work and other properties and collect from

time to time the usufructs of the cultivation as well as the rent from the

tenants. Abdul Razzak used to realize the house rent from the tenants on

behalf of Bibi Rafikan and make over the same to her. This provision was

acknowledged by Abdul Razzak in several letter written by him. After

death of Abdul Razzak his son Riazuddin also started to work as

Rakhwalikar of Bibi Rafikan. It is further stated that on 16.12.1961 Bibi

Rafikan executed the registered deed of gift in respect of lands of mauja-

Sewri in favour of her daughter Noor Jannat and another gift deed

dt.20.01.1969 in favour of Bibi Noor Jannat and her husband Atiullah and

put them in actual physical possession over the same. After death of Bibi

Rafikan her daughters namely Bibi Jaitun and Bibi Noor Jannat inherited

the properties of Bibi Rafikan and came into possession. Bibi Jaitun also

died issueless in the year 1978-79 and her interests in the properties of

Karim Bux devolved upon Bibi Noor Jannat and her husband, who

became absolute owners of the entire property by virtue of inheritance

and gift. It is further stated that Md. Riazuddin s/o Abdul Razzak filed a

Title Suit no.101/85 against Bibi Noor Jannat and one Md. Khalil Khan in

the Court of Munsif, Giridih claiming entire lands of Karim Bux by virtue of

oral gift dr.21.03.1935 and also challenged the sale deed executed by Bibi

Noor Jannat in favour of Khalil Khan dt.7.01.1985 to be illegal, void,

collusive and without any right or authority, which was not binding upon

him and also prayed for confirmation of his possession but the said suit

was dismissed vide judgment and decree dt.29.07.86 passed by 2nd

Addl. Munsif, Giridih. Against the said judgment and decree an appeal

was preferred by Md. Riazuddin, which was also dismissed on contest

with costs vide judgment dt.30.06.94 passed by 2nd Addl. District Judge,

Giridih. A Second Appeal was also preferred by Md. Riazuddin before the

Hon'ble High Court of Patna, Ranchi Bench bearing S.A no.69 of 1994

(R), which was also dismissed on 21.11.1996. L.P.A no.45 of 1996 (R)

was also filed, which was also dismissed on 2.08.96. Again M.J.C no.639

of 1996 (R) was filed, which was also dismissed vide order dated

18.02.97. It is further alleged that defendant was inducted as a tenant

over the suit premises by Bibi Rafikan @ Rs.100 per month, who was

paying rent to her through Abdul Razzak. Thereafter, his son Md.

Riazuddin as Rakhwalikar/Agent issued him rent receipts on her behalf.

Subsequently rent was raised to Rs.125 per month. The plaintiffs are the

legal heirs and successors of the suit premises and entitled to receive

rent from the defendant but the defendant on repeated demands started

avoiding the payment of rents and its arrears on different pleas then an

Advocate notice was issued by plaintiff no.1 against defendant to vacate

the suit premises and also to pay arrears of rent through her Advocate Sri

Jogeshwar Ram through registered letter with A/D cover, which was

refused by the defendant to receive on 23.09.86. Again lawyer's notice

through Advocate Sri Ram Mohan Prasad dt.27.01.97 was issued, which

was received by the defendant, who sent reply through Sri Govind Prasad

no.1, Advocate dt.18.02.97. It is further alleged that defendant has not

been paying rent and arrears of rent on several demands and request in

the month of January 1997 and it was also requested to vacate the suit

premises and hand over possession in the month of March 1997 but he

avoided the matter. Lastly the plaintiff renewed his demand in the month

of January 1999 which was refused by the defendant. It is further

pleaded that the plaintiffs require the suit premises reasonably and in

good faith for their own occupation as their elder son Mazhar Imam is

unemployed since long and wants to start Hardware business in the suit

premises to maintain the family members and plaintiffs. The defendant

has also constructed his own house. Partial eviction from the suit

premises will not satisfy the necessity of the plaintiff hence this suit with

following reliefs:

In view of above prayer was made that a decree of eviction

be passed in favour of plaintiffs directing the defendant to give vacant

possession of Schedule A premises to the plaintiffs within a period fixed

by the Court, failing which khas possession be provided through process

of Court along with cost of suit and other reliefs as deemed fit by the

Court.

The case of the defendant/appellant is that upon summons

defendants appeared and filed his written statement. It is pleaded that

the suit is bad and not maintainable in absence of necessary party Md.

Riazuddin. It is pleaded that there is no relationship of landlord and

tenant between the parties. It is further admitted that notice was served

upon the defendant by the plaintiffs through their lawyer Sri Ram Mohan

Prasad on 27.01.97 requesting the defendant to attorn himself to be a

tenant under the plaintiffs and the defendant replied through Sri Govind

Prasad no.1, Adv stating therein clear words that the plaintiffs were never

the owner of the suit holding nor they were the landlord of the defendant

nor the defendant could attorn the plaintiffs to be his landlord. The

plaintiffs have filed the present suit to establish their title and recovery of

possession for which only regular title suit is maintainable under the law

and for which the plaintiffs are bound to pay ad volrem court fee on the

plaint on the actual market value of the suit premises, which cannot be

less than Rs.50,000/- and the suit is beyond the pecuniary jurisdiction of

this learned court as well. It is further alleged that the land property

comprised in Municipal Holding no.884 of Ward no.IV (Old) was owned

and possessed by Hazi Abdul Razzak of Pachamba and he used to deal

with this property as its absolute owner. The plaintiffs never came in

possession of the said property and also other properties held by Hazi

Abdul Razzak at Pachamba. This defendant has never seen Karim Bux or

his alleged daughter Bibi Rafikan and she never came in possession of

any property at Pachamba. The allegations are quite vague in as much as

there is no mention as to from where Bibi Rafikan used to come and visit

Pachamba and also as to when and how she appointed Md. Razzak her

Rakhwala. The defendant has emphatically denied the said allegation and

also the allegation that Bibi Rafikan used to collect rent through Abdul

Razzak. The defendant denies that Abdul Razzak had ever written letter

to Bibi Rafikan acknowledging her to be the owner of the property. It is

also denied that after death of Abdul Razzak his son Riazuddin has been

doing the same work. This defendant has also denied that Bibi Jaitun or

Bibi Noor Jannat acquired any property by virtue of any inheritance or gift

whatsoever. It is further pleaded that this defendant was never a party in

no.101/85 and to the appeals arising out of the same and the said suit

never related to holding in question and the learned court has not

decided right, title, interest of the parties in and over the present suit

holding. It is also denied that this defendant was ever inducted as tenant

by Bibi Rafikan in the suit premises at the rent of Rs.100 per month. It is

also incorrect to say that Md. Razzak and his son Riazuddin had been

realizing rent from the defendant on her behalf as her agent or

Rakhwala. It is pleaded by the defendant that in the year 1971 he was

inducted as monthly tenant by Abdul Razzak at the rate of Rs.23 per

month only and thereafter, it was raised several times and at present the

rate is Rs.125 per month. After death of Abdul Razzak his son Riazuddin

has been realizing monthly rent from the defendant as absolute owner of

the property and they have been granting due rent receipt stating

themselves to be the owner of the suit holding. The plaintiffs are putting

illegal pressure on the defendant to pay rent to them, which the

defendant could not do unless the dispute between Md. Riazuddin and

the plaintiffs is finally decided by a competent court. It is also pleaded

that alleged need of the plaintiff is imaginary, manufactured and invented

to make some ground for eviction. As such, this suit is fit to be dismissed

with exemplary costs.

Mr. Ayush Aditya, the learned counsel appearing on behalf

of the appellant submits that the learned court while deciding the

relationship of land-lord and tenant, has directed to vacate the appellant

which is against the mandate of law. He further submits that only on the

basis of Ext.4 to Ext.8, which are the judgment of earlier suit, the learned

courts directed the appellant to vacate, which is perverse in law. He

submits that in absence of any chit of paper, if that relationship has been

done and the irrelevant consideration has come in the judgment that is

the law point and on that basis this second appeal can be admitted and

to buttress his argument, he relied in the case of "Abdul Raheem v.

Karnataka Electricity Board" reported in (2007) 14 SCC 138. Paragraph

no.12 of the said judgment is quoted herein below:

"12. However, there cannot be any doubt whatsoever that consideration of irrelevant fact and non-consideration of relevant fact would give rise to a substantial question of law. Reversal of a finding of fact arrived at by the first appellate court ignoring vital documents may also lead to a substantial question of law. In Vidhyadhar v. Manikrao [(1999) 3 SCC 573] this Court held : (SCC p. 586, para 23)

"23. The findings of fact concurrently recorded by the trial court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion."

On these grounds, he submits that this second appeal may

kindly be admitted.

On the other hand, Mr. Ashish Kumar Thakur, the learned

counsel appearing on behalf of the respondents/plaintiffs submits that

the learned trial court as well as the learned appellate court has

considered the Ext.4 C.C. of the judgment dated 19.07.1986 passed by

the 2nd Additional Munsif, in Title Suit No.101 of 1985/ 153 of 85, Ext.4/a

judgment dated 30.06.1994 passed by learned 2 nd Addl. District Judge,

Giridih in Title Appeal No.67/86 arising out of T.S.No.101 of 85 /153 of

85, Ext.5- C.C. of decree passed in above appeal, Ext.6-C.C. of order

passed in Second Appeal No.69/1994(R) by the Hon'ble High Court of

Judicature at Patna, Ranchi Bench dated 21.11.1995, Ext.7-C.C. of order

passed in L.P.A./ No.45 of 1996(R) dated 30.07.1996 by Hon'ble High

Court of Patna, Ranch Bench, Ext.8-C.C. of order passed in M.J.C.

No.639/96(R) dated 18.02.1997 passed by Hon'ble High Court of Patna,

Ranchi Bench and considering all these aspects, the learned trial court as

well as the learned appellate court have passed the judgment and there

is no illegality in the judgments of the learned trial court as well as the

learned appellate court. There is no substantial question of law involved

and this Court while sitting under section 100 of the C.P.C may not admit

the second appeal.

In view of the above submission of the learned counsel

appearing on behalf of the parties, the Court has gone through the

judgments of the learned trial court as well as the learned appellate court

and finds that the learned trial court has framed nine issues to decide the

suit. While deciding the issue with regard to land-lord and tenant

relationship, the learned trial court has considered the exhibits as well as

the evidence adduced on behalf of the parties and thereafter has held

that the land lord and tenant relationship is established in view of the

exhibits with regard to the earlier proceedings and considering that, the

suit was dismissed. The learned appellate court has formulated three

points to decide the appeal. Considering that in course of time, Riazuddin

and Abdul Razak with ulterior motive has lodged the case challenging the

very ownership of the title Bibi Rafikan which he lost upto the High Court

and considering that the court held that there is nothing to institute a

separate title suit against Riazuddin the alleged land lord of the

defendant. The court relying on Ext.4 and Ext.8 came to the conclusion

that the appellant lost the title of battle with the present plaintiffs

ancestor and considering that, held that the plaintiffs to receive the rent

of the suit premises without going into the question of title. The plaintiffs

have been able to prove on oath that Md. Riazuddin was working in the

capacity of Rakhwalikar/agent to receive the rent on behalf of the

plaintiffs and that has not been repudiated by the defendant through oral

and documentary evidence, rather it has been admitted by the defendant

himself that he never seen the document of title of Riazuddin over the

suit premises nor any tenancy agreement was executed and considering

that definition 2(f) of Bihar Building (Lease, Rent and Eviction) Control

Act, the learned appellate court has held that Riazuddin also carrying the

capacity of land lord and in that view of the matter the relationship of

land lord and tenant between the plaintiff and defendant has been

answered by the learned appellate court. So far necessity of premises in

question is concerned, the learned appellate court has stated that he

required the suit premises reasonably and in good faith for their own

occupation as his elder son Mazhar Imam who is unemployed since long

time and wants to start hardware business in the suit premises to

maintain the family members and plaintiffs. It is well settled that the

tenant can be asked to vacate the house if the owner wants to start its

own business and that ground was taken which has not been repudiated

by the defendant by any cogent evidence and that is why it has been

held that bonafide of vacation is there. So far as the judgment relied by

Mr. Ayush Aditya, the learned counsel for the appellant is concerned, that

is not in dispute and if it is held that irrelevant factors have been

considered by the learned trial court and the appellate court that can be

a good point to admit the second appeal however in the case in hand the

learned courts have considered Ext.4 to Ext.8 as discussed hereinabove

which establish that landlord and tenant relationship and that is affirmed

in earlier round of litigation upto the High Court in second appeal as well

as further in the writ petition as well as the L.P.A. There is concurrent

finding of both the courts. No perversity has been found by the courts

and there is no perversity and no substantial question of law is found by

the Court. There is no necessity to admit the second appeal sitting under

section 100 of the C.P.C. in absence of any substantial question of law.

Accordingly, Second Appeal No.85 of 2012 is dismissed.

Pending petition, if any, also stands dismissed.

( Sanjay Kumar Dwivedi, J.)

SI/,