Jharkhand High Court
Hiramuni Devi vs Md. Anwar Ansari on 23 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 16 of 2024
1. Hiramuni Devi, aged about 55 years, widow of late Sitaram Bhagat
2. Rohit Bhagat, aged about 54 years
3. Hiralal Bhagat @ Hiralal Prasad, aged about 54 years
4. Subhash Bhagat @ Subhash Kumar, aged about 50 years
5. Chandan Bhagat @ Chandan Kumar, aged about 31 years
Nos. 2 to 5, all sons of late Sitaram Bhagat, all resident of village-
Amrapara, P.O. & P.S. Amrapara, District- Pakur (Jharkhand)
... Appellants
-Versus-
Md. Anwar Ansari, son of late Md. Muslim Ansari, resident of village
Amrapara, P.O. & P.S. Amrapara, District- Pakur (Jharkhand)
... Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants : Mr. Sachi Nandan Das, Advocate
For the Respondent :
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06/23.01.2025 Heard Mr. Sachi Nandan Das, learned counsel for the appellants.
2. This appeal has been preferred against the judgment and decree dated
21.12.2023 (decree signed on 10.01.2024) passed in Civil (Eviction) Appeal
No.06 of 2023 by the learned District Judge, Pakur, whereby, the said appeal
has been dismissed and the judgment and decree dated 23.05.2023 (decree
signed on 02.06.2023) passed in Title (Eviction) Suit No.23 of 2007 by the
learned Civil Judge, Senior Division-I, Pakur (Sub Judge-I, Pakur) has been
affirmed by the learned appellate court.
3. The case of the plaintiff/respondent was that the plot no.-12 of Mouza-
Amrapara existing adjacent to Pakur-Dumka road in the northern side of the
said road with a building standing thereon fully described in the Schedule-A
belongs to the plaintiff, after the partition dated 07.10.1968 through originally
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it was possessed by all four brothers. The plaintiff reside in the aforesaid
building with his family members, but the front portion of the building in the
southern side adjacent to Pakur-Dumka road consisting of one pucca room
and one verandah fully described in Schedule-B has been let out initially on a
monthly rental of Rs.55/- per month but it was increased time to time and
lastly the rent was fixed at Rs.450/- per month.
It was further asserted that the defendant is very irregular in making
payment of the monthly rent and in the year 2004 this plaintiff was almost
ready to file eviction suit against the defendant on the ground of default and
also because the son of the plaintiff has his shop only in one room of the
building and considering the increase of numbers in the family it was felt
necessary to expand the shop of the son inclusive the premises let out to the
defendant to meet the expenses in the maintenance of the family. The
defendant could know the intention of the plaintiff and requested the plaintiff
not to disturb him at least for two years promising to vacate the premises
after expiry of two years and at the same time the defendant paid up the
entire arrear rent to 27.07.2004 from 01.04.2004 to July, 2004 @ Rs. 450/-
per month.
It was also asserted that the plaintiff considering his difficulty and
request, did not file the suit being hopeful of getting the suit premises without
harassment. But the defendant again stopped payment of rent for the period
of August, 2004 and onwards and yet the plaintiff time to time very mildly
reminded the defendant for the payment to rent being conscious of the fact
that any harassness in making demand of unpaid rent may jeopardize the
intention of the defendant regarding vacation of the premises after two years.
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It was further case of the plaintiff that the defendant at last paid the
entire arrear rent at a time on 27.07.2006 for the period of 01.08.2004 to
31.08.2006 on 13.09.2006 requesting further time for a few months and the
plaintiff agreed.
It was further asserted that the defendant neither paid the rent for the
period from 01.09.2006 to onward nor vacated the premises in spite of
several request. At last, this plaintiff sent a pleader notice through registered
post with A.D on 26.02.2007 after determining the tenancy with a request
to vacate the premises and to pay the rent from 01.09.2006 to
31.01.2007 amounting Rs.2,250/- but the defendant neither replied to the
plaintiff's pleader notice nor vacated the premises or made payment of
arrear and current rent and in this way the arrear rent accumulated to
Rs.4,050/- only.
It was then asserted that the cause of action for the suit arose on
01.11.2006 when the defendant defaulted in making payment of rent for two
consecutive months i.e. rent for the month of September and October, 2006
and is still continuing within the jurisdiction of this court.
It was further asserted that the defendant is liable for eviction from
the premises for default and also considering the requirement of the plaintiff
as provided Section 11 of Jharkhand Building (Lease Rent and Eviction)
Control Act.
4. On the other hand, the defendant appeared and filed his written
statement alleging therein that the suit as framed is not maintainable. It is
barred by the law of limitation, plaintiff has got no cause of action for
this suit, the suit is barred by the principles of acquiescence, estoppel
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and waiver. It was further alleged that the suit is bad for non-joinder of
necessary parties and misjoinder of cause of action. The suit is bad for
the joinder of two cause of action eviction on the ground of default and
vague requirement of the plaintiff without pleading the personal necessity of
the plaintiff.
It was further asserted that statements made in para 1 of the plaint
are not admitted as the same are vague and unspecified there are two
mouza in the name of Amarapara one is Amrapara Bazar and other is
Amrapara Santhali and both are having separate thana number and
the plaintiff has failed to give details of the mouza causing the description of
the suit property vague and unidentifiable. Hence, for giving vague
description of the lands in Schedule, the suit is fit to be dismissed on this
ground above.
It was submitted that the defendant advanced a sum of Rs. 2677/- to
Md. Abbas Mian son of Osi Mian of Mouza Amrapara on 15.09.1968 for
construction of a pucca house and an agreement was arrived at in between
said Md. Abbas Mian and this defendant namely Sitaram Prasad @ Bhagat
and accordingly to that agreement which was executed on 20.09.1968, that
one room and a verandah will be given on rent to the defendant on a
monthly rent of Rs.51/- per month and agreed by them that the said
advance money Rs. 2677/- will be adjusted towards rent since 1968 to 1973
till the month of February, thereafter the rent will be chargeable for
the aforesaid room and verandah on the same rate of rent of Rs.51/- per
month and whenever the defendant will pay the rent, he will be granted
receipt thereof.
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It was also asserted that thus this defendant was inducted as a tenant
by the said Md. Abbas Mian under the aforesaid agreement and in
consideration of a sum of Rs.2677/- by way of advance and by virtue of
written agreement dated 20.09.1968 and this defendant is occupying the
premises as a month-to-month tenant on a monthly rent of Rs.51/- per
month only.
It was then asserted that the said Md. Abbas Mian enhanced the rent
from time to time for the suit premises under the threat and coercion of
immediate eviction from the suit premises and lastly this defendant is paying
the rent at the rate of Rs.450/- per month. It is very necessary to mention
here that this defendant is a month-to-month tenant occupying the premises
inducted by Md. Abbas Mian and not by the plaintiff, thereof there is no
relationship of landlord and tenant in between the plaintiff and this defendant.
It was further asserted that statement made in para 3 of the plaint are
entirely false, baseless and fraudulent as would be evident from the
averments of the plaint and the same is clear about the coercive nature of
the suit, this defendant continued to pay rent month to month to the said
Md. Abbas Mian, he is not the tenant of the plaintiff and he always paid rent
to Md. Abbas Mian, the statements made by the plaintiff to the contrary are
wrong, erroneous and illegal.
It was also asserted that this defendant was never irregular in making
payment of the rent to the said Abbas Mian rather whenever Abbas Mian was
in need of money he received the amount of rent at a time for a year, two
years even for three years at a time although the defendant is a month to
month tenant of Md. Abbas Mian who used to receive rent through his bhatija
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Md. Anwar Mian nor by the plaintiff brother of Md. Abbas Mian but it can be
said that Md. Abbas Mian never granted rent receipt in favour of the
defendant as provided in the B.B.C. Act rather he used to make unregular
endorsement in a exercise book through his bhatija which is against the
provision of law. The defendant could have raised the matter before the
competent court but for the sake of Md. Abbas and his agent Md. Anwar he
never agitated the same. The plaintiff who happens to be brother of Md.
Abbas taking the benefit of above irregular endorsement has filed the suit for
eviction on ground of default when it is a fact that the defendant has paid
rent of Anwar Mian till June, 2007 and there had been no occasion of any
making default in payment of the rents. It was submitted that this defendant
used to pay rent month by month to said Md. Anwar Mian, who paid rent
upto month of June, 2007 to said Md. Anwar Mian and he never granted rent
receipt for the same, because there was no practice of granting rent receipt
whenever this defendant paid rent to him.
It was further asserted that the defendant had been carrying his
business in clothes in the rented premises since 1968 and due to passing of
time the pucca roof has been leaved due to which rain water drops in the
room causing damages and although repeated request has been made,
neither Anwar Mian nor Abbas Mian or his daughter Salmi Bibi has repaired
the same but has illegally enhanced the rent of the house from Rs.51/- to
Rs.450/- now.
It was further asserted that this defendant is never a tenant of the
plaintiff, rather he is a tenant of Md. Abbas Mian and this defendant has paid
rent to said Md. Anwar Mian agent of Md. Abbas Mian upto date and has
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never granted rent receipt for the same. It is false to say that the
plaintiff ever served notice upon this defendant or there is any arrears of rent,
till the month of January, 2007 upon this defendant, so he is not liable to pay
any rent to the plaintiff, but he has paid the monthly rents of suit
premises to said Md. Abbas Mian and there is nothing any dues against
this defendant.
It was also asserted that the defendant was not a tenant of the plaintiff
rather a tenant of Md. Abbas Mian and never executed any agreement
regarding condition of tenant with hi nor paid any to him, so he ignored
the notice sent by the plaintiff earlier. The defendant has paid rent to the
said Md. Anwar Mian till May, 2007 but he has refused to receive
rent thereafter and the above suit has been brought by this plaintiff, the said
Md. Anwar Mian might have refused for the same although the
defendant is ready to pay the rent till now. That the plaintiff is not
entitled to any of the reliefs claimed and the suit is liable to be dismissed
with cost.
5. Mr. Sachi Nandan Das, learned counsel for the appellants submits that
there is law point involved in this second appeal and on the law point this
appeal may kindly be admitted. According to him, law point is that Abbas
Mian used to collect rent at his convenience for year/two years or more at a
time from the defendant and in absence of valid notice issued by Abbas Mian
to the defendant for payment of rent every month, as month to month tenant,
the defendant cannot be called a defaulter within the meaning of Section
11(i)(d) of the Act.
6. The plaintiff/respondent instituted Title (Eviction) Suit No.23 of 2007
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for eviction of the defendants from Schedule-B premises and delivery of
vacant possession to the plaintiff and further prayer was made for any other
relief(s) to which the plaintiff may be found entitled under the law and equity.
On the basis of the pleadings of the parties, the learned trial court has framed
9 issues in paragraph 4 of the judgment. The learned trial court has framed
issue no.5 with regard to the fact whether there is relationship of landlord
and tenant between the plaintiff and defendant or not. The learned trial court
has considered the statement of P.W.4- Salma Bibi, who is the only daughter
of Late Md. Abbas Mian whom the defendant considered that they were his
tenant and not the tenant of present plaintiff/respondent. P.W.4 in her
evidence has deposed that Md. Muslim was his uncle and they were four
brothers; (1) Safik Miyab, (2) Abbas Miyan, (3) Md. Muslim and (4) Hanif
Miyan and during their lifetime, they have partitioned their property and
document of the same were prepared in which all the brothers and witnesses
made their signatures. The land of Mouza Amarapara bazar plot no.12 fell in
the half share of Md. Muslim and half in the share of Hanif Miyan and the
portion of room and verandah received in share by Md. Muslim, has been
rented to the defendant.
7. P.W.2- Md. Anwar who was the substituted plaintiff has deposed in his
evidence that he is the son of the plaintiff and his father was jointly possessing
the house over plot no.12 of Mouza Amarapara bazar and also house in Plot
no.49 of the Mouza along with his three brothers, namely, Md. Hanif Mian,
Md. Abbas Mian and Md. Shafik. He further deposed that partition of the
house in Plot No.12 and Plot No.49 took place between the plaintiff and his
three brothers prior to death of two uncles. He has also deposed that during
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the jointness, he used to manage the house hold affairs including realization
of rent from the defendant, who was let out the suit premises from
the notebook of rent receiving statement and these facts have also
been corroborated in light of Ext.D-2 to D-2/6 and the learned trial court has
come to conclusion that the said evidence can be inferred that the substituted
Md. Anwar used to collect rent and in the pleadings of the defendant
also, there is admission to this fact that they used to give rent to
Md. Anwar who was agent of Late Md. Abbas in para no. 11 of their
written statement.
8. In view of the above facts, the learned trial court has considered
Section 2(h) of the Jharkhand Building (Lease, Rent and Eviction) Control Act,
which defines the tenant and come to the conclusion that the landlord tenant
relationship has been established and that is the main issue with regard to
the eviction case and in light of the further evidence brought on record, the
learned trial court has come to the conclusion that there exists landlord tenant
relationship and the defendant is a defaulter under Section 11(1)(d) of the
Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000 and the
plaintiff has bonafide personal need of the suit premises and in view of that,
the decree has been passed in favour of the plaintiff and the judgment was
delivered on 23.05.2023.
9. The judgment passed by the learned trial court dated 23.05.2023
passed in Title (Eviction) Suit No.23/2007 was challenged by the
defendants/appellants before the learned appellate court in Civil (Eviction)
Appeal No.06 of 2023 and the learned appellate court vide judgment dated
21.12.2023 has dismissed the said appeal and affirmed the judgment passed
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by the learned trial court. The learned appellate court has further framed
points to decide the appeal. The learned appellate court has considered the
evidence of P.Ws. as well as D.Ws. and has come to the conclusion at
paragraph 31 that there is landlord-tenant relationship between the plaintiff
and defendant. The issue no.6 was framed with regard to the fact whether
defendant is defaulter in making payment of rent or not and considering
evidence of P.W.2 and D.W.5, the learned appellate court has found that the
defendants/appellants used to pay rent to Md. Anwar and Md. Anwar is the
son of the plaintiff late Md. Muslim who is the brother of Md.Abbas Mian.
P.W.4- Salma Bibi also deposed that she neither collected rent from the
defendant rather the suit land come into the share of the plaintiff so he used
to collect rent from the defendant. In view of that, the learned appellate court
has found that the defendant was paying rent to the plaintiff.
10. Personal necessity was considered at paragraph no.39 of the judgment
of the learned appellate court and the learned court found that in light of the
evidence that the plaintiff's son has his shop only in one room of the building
and considering the increase of numbers in the family, it was felt necessary
to expand the shop of the son inclusive the premises let out to the defendant
to meet expenses in the maintenance of the family and P.W.2 has supported
the case of the plaintiff on the point of personal necessity and in light of that,
the learned appellate court has also come to the conclusion that the personal
necessity is proved in favour of the plaintiff. Rest of the issues are also decided
in accordance with law and in view of that, the learned appellate court vide
judgment dated 21.12.2023 dismissed the appeal on contest and affirmed the
judgment passed by the learned trial court.
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11. So far as the law point argued by the learned counsel for the appellants
is concerned, that has already been considered by both the learned courts
and they have come to the conclusion that the rent was being paid to the
plaintiff.
12. In view of the above facts, reasons and analysis, there is no error in
the judgments of either trial court as well as the appellate court. There is
concurrent finding of both the courts. No law point is involved in the present
appeal. In second appeal, re-appreciation of the facts are not required when
concurrent finding of two courts are there and, as such, this second appeal
is, hereby, dismissed.
13. Pending I.A., if any, is disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
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