Doman Tiwari vs Sahdeo Tiwari
2023 Latest Caselaw 80 Jhar

                                            1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     S.A. No. 252 of 2004

1. Doman Tiwari, son of late Sardu Tiwary
2. Naresh Pandit, son of late Hari Pandit
    Both resident of village Tand Mohanpur, P.O. Jainamore, P.S. Jaridih, District-
    Bokaro                                                 ...... Appellants
                             Versus
Sahdeo Tiwari, son of late Prayag Tiwari, resident of village Mohanur, P.O. and P.S.
Jaridih, District-Bokaro.                                  ...... Respondent
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CORAM:         HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                            ---------
For the Appellants      : Mr. K. K. Ambastha, Advocate
For the Respondent : Mr. Ajay Kumar Sah, Advocate

18/Dated: 04/01/2023

Heard Mr. K. K. Ambastha, learned counsel for the appellants and Mr.

Ajay Kumar Sah, learned counsel for the respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with

judgment and decree dated 25.03.2004 (decree signed on 08.04.2004) passed by

learned 5th Additional District Judge, Bermo at Tenughat in T.A. No. 43 of 2003

whereby the appeal was allowed and the judgment and decree dated

12.08.2003/18.08.2003 passed by the learned Munsif, Bermo at Tenughat in Title

Eviction Suit No. 01/1997 was dismissed.

3. Mr. K. K. Ambastha, learned counsel for the appellants submits that Title

Eviction Suit No. 01/1997 was instituted by the respondents for eviction from the

house in question and after elaborating the discussions the learned trial court has

come to the conclusion that there is no relationship of landlord and tenant between

the parties and that is why suit of eviction was dismissed and aggrieved with the said

judgment dated 12.08.2003, the same was challenged by the plaintiffs/respondents in

Title Appeal No. 43 of 2003 and the learned appellate court has affirmed the finding

of the trial court with regard to issue no. "X" and held that there was no relationship

of landlord and tenant between the parties however the learned appellate court has

decided the title in the said appeal itself by the said judgment dated 25.03.2004.

Aggrieved with this second appeal has been filed on behalf of the

appellants/defendants.

4. This second appeal was admitted on 03.02.2005 on following substantial

question of law: " Whether the plaintiff's suit having been filed under the provisions of

Bihar Building (Lease, Rent and Eviction) Control Act, 1982, but they failed to

establish the relationship of landlord and tenant, as concurrently found and held by

the Courts below, the Lower Appellate Court would have decided the contested title at

the appellate stage, in summary manner even without a proper frame of the suit,

without payment of advalorem court fee and as a surprise to the defendant ?

5. The plaintiff/respondent instituted a suit stating that Prayag Tiwari

purchased a land in plot no. 1651 under khata no. 1/549 in village Balidih, which

includes the suit premises vide registered deed of sale, from the rightful owner thereof

and was put in possession thereof. The said Prayag Tiwari constructed two adjacent

rooms thereon and inducted Sarjug Tiwari-the father of the defendant no. 1, as a

month to month tenant according to the English Calender in the Northern most room

along with a small piece of vacant land adjoining the room, towards the end of 1963,

at a monthly rent of Rs. 75/- with the condition that the tenant will neither make any

addition alteration to the tenanted premises, without the consent of the landlord nor

he shall sublet the tenanted premises or any part of it. After being inducted as a

tenant , Sardu Tiwari was paying rent to Prayag Tiwari and Prayag was granting "Hat

Chitta" to him. After few months, Prayag Tiwari died and as the plaintiff no. 1 was

minor, Prayag Tiwari's brother Joty Tiwari, used to collect the rent from Sardu Tiwari

by granting "Hat Chitta" till 1981-82 when the plaintiff no. 1 become major. Further

the case of the plaintiff is that Sardu Tiwari converted the said tenanted premises into

four small rooms but continued to pay rent to Jyoti and also to the plaintiff no. 1,

after he attained majority, against grant of "Hat Chitta" by the plaintiff no.1. In

November, 1987, Sardu Tiwari sub-let the suit premises to Hari Pandit-the father of

the defendant no. 2 without the knowledge and the consent of the plaintiff. Sardu

Tiwari died in 1993 but after his death the defendant no.1 continued to pay monthly

rent till February, 1995. So the plaintiffs have sought eviction on the ground of

subletting, default of payment of rent as the suit premises is required by the plaintiffs

for their own use and occupation. They have also sought the reliefs of realization of

arrear of rents from 01.03.1995 to the date of the suit amounting to Rs. 2125/-, costs

and other reliefs.

6. The appellant-defendant has filed written statement and pleaded that

the suit is barred by adverse possession, further pleased that Prayag Tiwari and Sardu

Tiwari jointly contracted with the vendor Chandra Mohan Mandal for purchase of the

land but as only Prayag Tiwari had gone to the registration office, hence the deed of

sale was executed in the name of Prayag Tiwari alone. It was contended by the

defendant that after purchase, the said 10 decimals of land was partitioned in two

equal shares of 5 decimals each. Northern share was allotted to Prayag Tiwari. The

specific case of defendant no.1 is that since the year, 1962, first his father Sardu

Tiwari and thereafter he has been in peaceful possession over the suit property, with

the knowledge of Prayag Tiwari and the plaintiffs, hence he has perfected his title over

the suit property by adverse possession. It was further contended that Prayag Tiwari

and Sardu Tiwari constructed their residential houses separately over the land

allotted to them. Sardhu Tiwari constructed the house in the year, 1963 while Prayag

Tiwari constructed the house in the year, 1965. The defendant no. 1 has denied the

existence of any relationship of landlord and tenant between Prayag Tiwari and Sardu

Tiwari. He also denied payment of rent by Sardu Tiwari to Pryag Tiari, Joti Tiwari or

the plaintiffs. It was further contended that at present the defendant no. 2 is his

tenant and prior to him many others were his tenant. It was further contended by the

defendant no. 1 that he regularly paid half of the land revenue to the plaintiff. It was

further contended that Sardu Tiwari let out one room and one verandah to different

persons since the year, 1971. The said premises was let out to Hari Pandit and after

him the defendant no. 2 has been occupying the suit premises as a tenant under

defendant no. 1, a monthly rent of 1200/- and the plaintiffs have no right and title

over the suit premises.

7. It appears that the suit was first decreed by judgment dated 22.04.1998

and the respondent preferred Eviction Appeal No. 35/98 which was decided by the

appellate court vide judgment dated 23.05.2002 and reversed the impugned judgment

and remanded the case to the concerned court to frame appropriate issues and

thereafter the present judgment has been passed by the learned trial court.

8. The learned trial court took into consideration of oral evidences on

behalf of the plaintiffs as well as the documentary evidences of the plaintiffs such as

land revenue receipts, which have been marked exhibit 1 to 1/2, the application by

Doman Tiwari for Baskit Parcha has been marked Exhibit-2, the order of the Anchal

Adhikari has been marked as Exhibit 2/A, the original sale deed dated 09. 07.1992

has been marked as Exhibit-3. The learned trial court has also took into consideration

the defendants' witnesses as well as exhibits marked in the said title suit.

9. Mr. K. K. Ambastha, learned counsel for the appellant submits that after

going through the evidences as well as exhibits, learned trial court framed Issue No.X

with regard to relationship of landlord and tenant and after discussing the oral

evidences has come to the conclusion that there is no relationship of landlord and

tenant between the parties and dismissed the suit. He further submits that the

respondent-plaintiff filed title appeal being Title Appeal No. 43 of 2003 before the

learned 5th Additional District Judge, Bermo at Tenughat and the learned appellate

court at para 11 of the judgment affirmed the finding of the learned trial court with

regard to relationship of landlord and tenant however the learned appellate court

erred in law by deciding the issue of title in para 10 of the said judgement that too

without framing any points. He further submits that if once a suit is filed for eviction,

there is no question of deciding the right, title and interest at the appellate stage.

To buttress his argument he relied in the case of "Rajendra Tiwary Vs. Basudeo

Prasad and Another" AIR 2002 SC 136 wherein para 7 and 8 the Hon'ble

Supreme Court has held as under:-

7. It is evident that while dealing with the suit of the plaintiffs for eviction of the defendant from the suit premises under clauses (c) and (d) of sub-section (1) of Section 11 of the Act, courts including the High Court were exercising jurisdiction under the Act which is a special enactment. The sine qua non for granting the relief in the suit, under the Act, is that between the plaintiffs and the defendant the relationship of "landlord and tenant" should exist. The scope of the enquiry before the courts was limited to the question: as to whether the grounds for eviction of the defendant have been made out under the Act. The question of title of the parties to the suit premises is not relevant having regard to the width of the definition of the terms "landlord" and "tenant" in clauses (f) and (h), respectively, of Section 2 of the Act.

8. Inasmuch as both the trial court as well as the first appellate court found that the relationship of "landlord and tenant" did not exist between the plaintiffs and the defendant, further enquiry into the title of the parties, having regard to the nature of the suit and jurisdiction the court, was unwarranted."

10. On these grounds learned counsel for the appellants submits that this

second appeal is fit to be allowed.

11. On the other hand, Mr. Ajay Kr. Sah, learned counsel for the

respondent/plaintiff tried to justify the judgment of the appellate court and submits

that the learned appellate court has rightly came to the conclusion with regard to

right, title and interest. He submits that there is no illegality in the judgment.

12. On perusal of judgment as well as relevant documents, it transpires that

the learned trial court has answered the Issue No. X in favour of the appellant by way

of holding that there is no relationship of landlord and tenant and the suit was filed

for eviction from the house in question. The learned appellate court has affirmed the

finding of the learned trial court however he has decided right, title and interest in

para 10 of the judgment in Eviction Suit particularly considering the Clauses (c) and

(d) of Sub-Section (1) of Section 11 of the Bihar Buildings (Lease, Rent and Eviction)

Control Act, 1982, it was unwarranted to decide the title. There is no question of

deciding the title of the parties to the suit premises particularly considering the

clauses (f) and (h) respectively of section 2 of the said Act as held in the case of

"Rajendra Tiwary" (supra).

13. Thus, it appears that the landlord and tenant relationship has not been

found which has been concurrently held by the trial court as well as appellate court

and the appellate court was not required to decide the title at the appellate stage in

summary manner even without a proper frame of the suit, without payment of

advalorem court fee. In that view of the matter that part of the judgement of the

appellate court is not sustainable in the eye of law and accordingly, the law points

framed by this Court is answered in above terms. The judgment and decree dated

25.03.2004 passed by learned 5th Additional District Judge, Bermo at Tenughat T.A.

No. 43 of 2003 so far deciding the title is concerned, is set aside. This second appeal

is allowed and disposed of in above terms. Pending, I.A, if any, stands disposed of.

( Sanjay Kumar Dwivedi, J.) Satyarthi/