Jharkhand High Court
Ramesh Kumar Bajaj Son Of Badri Bajaj ... vs Umakant Yadav Son Of Late Lavkant Prasad ... on 27 January, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Miscellaneous Appeal No.66 of 2015
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1. Ramesh Kumar Bajaj son of Badri Bajaj appointed guardian of Sidharth
Kumar son of Late Loknath Bajaj and Late Shanti Bajaj, resident of
Village Godda, P.O., P.S. and District Godda
2. Sidharth Kumar son of Late Loknath Bajaj and Late Shanti Bajaj,
resident of Village Godda, P.O., P.S. and District Godda
.... .... .... Appellants
Versus
Umakant Yadav son of Late Lavkant Prasad Yadav resident of Village
Baluachak, P.O. and P.S. Jagdishpur, District Bhagalpur, presently
residing in Godda Town, P.O. and P.S. Godda, District Godda
.... .... .... Respondent
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : Mr. Amar Kumar Sinha, Advocate
For the Respondent : Mr. Sudhir Kumar Sharma, Advocate
Mr. Pankaj Kumar Choudhary, Advocate
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Order No.28 / Dated : 27.01.2025
Plaintiffs are before this Court in an appeal under Order XLIII
Rule 1 of the CPC against the order of remand passed in Title (Eviction)
Appeal No.01 of 2005.
2. Plaintiff's suit for eviction being Eviction Suit No.5/2001 filed
under Section 11(i)(d) of The Bihar Buildings (Lease, Rent and Eviction)
Control Act (for short BLA) was decreed by the learned trial Court by
recording a finding that there was a landlord-tenant relationship and the
defendant/respondent had committed default in payment of rent. The
sheet anchor of the evidence relied upon by the learned trial Court was
the registered lease deed (Exhibit 7) executed by the mother of the
plaintiff- Shanti Devi Bajaj in favour of defendant- Umakant Yadav on
25.08.1999.
3. Case of the defendant is that there did not exist landlord-tenant
relationship between the petitioner and defendant. It was also denied that
the plaintiff no.2- Sidharth Bajaj, had ever been adopted by Shanti Devi
Bajaj, who was the owner of the property.
4. Defendant claimed that Shanti Devi Bajaj had entered into an
agreement for sale of the suit premise with the elder brother of the
defendant (Exhibit A), unregistered agreement of sale dated 07.11.1971
for a total consideration amount of Rs.51,000/- out of which Rs.31,000/-
was paid in advance. Very surprisingly, further pleading of defendant in
para 15 of the written statement states that elder brother had also died in
the year 1970. On the basis of the said agreement, the defendant entered
in possession of land.
5. Learned first appellate Court set aside the judgment and decree
of eviction passed by the learned trial Court and remanded the case by
holding that there was no relationship of landlord and tenant between the
parties and directed the trial Court to decide the title by permitting the
parties to lead further evidence on the question of title.
6. It is argued by learned counsel on behalf of appellant that the
learned first appellate Court has committed egregious error of law by
remanding the matter to the trial Court for deciding the title in the
eviction suit filed under Bihar Buildings (Lease, Rent and Eviction)
Control Act. The first appellate Court without any basis held that plaintiff
had not relied on the lease agreement which is Exhibit 7. It is contended
that this document was filed and proved on behalf of plaintiff. There was
no reason for the first appellate Court to draw an inference that plaintiff
was not relying on this document and it has been simply brushed aside
without giving any valid reason for not accepting it. A defence of title is
impermissible in a suit for eviction in view of Section 116 of the Evidence
Act. The so-called agreement was executed way back as per the case of
the defendant in 1971, but till the date of filing of the eviction suit in 2001,
no suit for specific performance of agreement was filed.
7. Falsity of claim of agreement of sale will be evident from the fact
that as per Exhibit A, agreement of sale was entered between Shanti Devi
Bajaj and Ram Narayan Prasad @ Kailash Mistry and Uma Kant Yadav as
stated in para 15 of the written statement but Ram Narayan Prasad died
in 1970.
8. It is argued that in a suit for eviction under Rent Control Act, the
title is not relevant and so is not required to be adjudicated, has been
settled in catena of decisions of Hon'ble Supreme Court. Reliance in this
regard has been placed on Kanaklata Das & Others Vs. Naba Kumar Das
& Others, (2018) 2 SCC 352
Further, it has been held in Rajendra Tiwary Vs Basudeo Prasad
and Anr., (2002)1 SCC 90 that where in an eviction suit landlord tenant
relationship is not established, any further inquiry into title is beyond the
scope of a Court.
Lastly, it is argued that the first appellate Court remanded the
case to the trial Court without following the fundamental principles for
remand as laid down under Order XLI Rule 23 of the CPC and settled in
Shivkumar & Others Vs. Sharanbasappa & Others, (2020) SCCR 488
9. Learned counsel on behalf of respondents defends the impugned
order. It is argued that specific reason has been assigned by the first
appellate Court for not accepting Exhibit 7 as proof of landlord-tenant
relationship. Firstly, except for the said lease deed, there was no other
documents to show that rent was ever paid in pursuant to the said lease
deed. No eviction suit was filed by the original owner during her life time
and the suit has been filed by the plaintiff, who claimed himself to be the
adopted son. The fact of the matter is that the said adoption had been
withdrawn and the suit for cancellation was also filed by the owner-
Shanti Devi Bajaj. Furthermore, in Md. Kamruddin Vs. Brijnandan Prasad
& Moti & Others, 2000(2) PLJR 49 wherein Patna High Court in a suit for
eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act,
1982 directed the conversion of it into a title suit.
10. Having considered the submissions advanced on behalf of both
sides and on perusal of materials on record, it is difficult to fathom the
reason on the basis of which the first appellate Court held that there did
not exist landlord and tenant relationship. What impelled the Court to
observe that Plaintiff was not relying on Exhibit 7 is another puzzle. Once
a registered lease deed was filed by the plaintiff and duly proved then to
hold that the Plaintiff then there was no reason to hold that it was not
relied upon.
11. There is a presumption in favour of due execution of a registered
deed under Section 58 of the Registration Act as held in Ishwar Dass
Jain(Dead) by LRs. v. Sohan Lal (Dead) by LRs., (2000) 1 SCC 434. Thus,
on proof of the registered deed, presumption arises under Section 114 of
the Evidence Act that the official act of registration has been duly
performed and the onus shifted on the defendant to rebut the same. I find
no contrary documentary evidence to rebut the due execution of lease
deed made by Shanti Devi Bajaj in favour of Defendants. Rent can be paid
in cash documentary evidence of payment of rent is not a sine qua non to
prove the tenancy. Mere absence of proof of rent, cannot be a ground to
disbelieve a duly executed lease of deed and deny the landlord-tenant
relationship.
12. Learned trial Court has noted the oral evidence in favour of
tenancy. In para 9 of the judgment wherein defendant witness no.1- Babu
Lal Rawani in para 5 had admitted that he was the tenant of Shanti Devi
Bajaj and was in possession of the suit property as a tenant. There is also
documentary evidence with regard to landlord-tenant relationship.
Exhibit 4/a is the envelope by which legal notice was returned by Uma
Kant Yadav and in para 2 of legal notice, it has been stated, in 1968, suit
property was taken on rent on Rs.25/- per month which was later on
increased to Rs.100/- per month. In the teeth of these evidences, it is
beyond comprehension as to how first appellate Court recorded a finding
that there did not exist landlord-tenant relationship and remanded the
case.
13. The so-called agreement of sale was executed way back in 1971,
but till 2001, no suit for specific performance of agreement was filed.
There are errors in the date of death of Ram Naresh Prasad Yadav in
whose favour, the said agreement is said to have been made in 1971 and
in para 15, his death is said to have taken place in 1970.
14. In Eviction Suit, the plea of title cannot be raised as defence, but
the learned first appellate Court not only accepted the plea but also
remanded the appeal for decision on title. The order of remand is
unsustainable and is accordingly, set aside.
15. The first appellate Court is directed to decide the appeal within
three months from the date of receipt of copy of the order without being
prejudiced by the findings recorded in the present appeal. Both sides to
appear before the first appellate court on 10th February 2025. Non-
appearance on the said date to be treated by the first appellate Court as
deliberate, and shall proceed as per law accordingly. Let this order be
communicated to the learned trial Court forthwith.
Miscellaneous Appeal is allowed. Interlocutory Application, if
any, is disposed of.
(Gautam Kumar Choudhary, J.)
Anit
