Trilochan Singh @ Trilochan Singh ... vs Sadan Prasad And Anr
2023 Latest Caselaw 2424 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.1388 of 2018
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Trilochan Singh @ Trilochan Singh Hanspal, S/o Late Jogendra Singh Panjabi, Resident of Mohalla-Bhikhna Pahari More, P.O.-Bankipur, P.s.- Pirbahore, District-Patna.

... ... Petitioner/s Versus

1. Sadan Prasad, S/o Late Nand Kishore Prasad @ Nandkeshwar Prasad, Resident of Mohalla-Nayatola, P.S.-Kadam Kuan, District-Patna.

2. Anil Ghosh @ Pintu, S/o Late Yadhu Ghosh, Resident of Pintu Hotal, Mohalla-Bhikhna Pahari Mor, P.O.-Bankipur, P.S.-Pirbahore, District-Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Arbind Kumar Singh, Advocate For the Respondent/s : Mr. Dilip Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 16-05-2023 Heard learned counsel for the parties.

2. This Civil Miscellaneous application has been filed

under Article 227 of Constitution of India against the order

dated 17.02.2018 passed in Eviction Suit No. 109 of 2015, by

learned Sub-Judge 1st, Patna, whereby and whereunder the

learned court below allowed the petition filed by the plaintiff /

respondent no. 1 under Section 15 of the Bihar Building (Lease,

rent and eviction) Control Act, 1982 (hereinafter referred to as

"the BBC Act').

3. The plaintiff/respondent no. 1 filed eviction suit no.

109 of 2015 under Section 9 CPC read with Section 11 (a) (c)

and (d) of BBC Act. The case of the plaintiff is that father of the

plaintiff/ respondent no. 1 had purchased the land and house Patna High Court C.Misc. No.1388 of 2018 dt.16-05-2023

through sale deed dated 16.03.1973 and on his death in June,

2005, plaintiff being one of his son and co-owner filed the

eviction suit. The father of the petitioner was tenant and on his

death petitioner made oral agreement with plaintiff for new

tenancy for residence in May, 1996 on monthly rent of Rs. 155

in addition to municipal tax and electric charges but the

petitioner never paid the rent and hence breached the terms of

tenancy.

4. It is claimed by the petitioner that his father was

inducted as tenant in parti piece of land by original landlord

through a sada mortgage deed on 02.12.1955 for the purpose of

running a timber business at the monthly rent of Rs. 55/- and as

per the agreement father of petitioner had constructed his office

and godown on his own cost over the said lease land and

making payment of monthly rent and corporation tax in

accordance with the said agreement. The father of petitioner had

also executed registered kirayanama vide kabuliyat deed dated

08.11.1960 in favour of original landlord for a period of three

years and thereafter there was no fresh agreement but the father

of petitioner and thereafter this petitioner continued in

occupation.

5. During the pendency of the eviction suit the Patna High Court C.Misc. No.1388 of 2018 dt.16-05-2023

plaintiff/respondent no. 1 filed a petition under Section 15 of the

BBC Act on 15.11.2016 for direction to the petitioner to make

payment of arrears as well as current rent.

6. It is claimed by the petitioner that father of plaintiff

namely Nandkeshwar Prasad after purchase of suit land, had

filed Title Eviction Suit No. 169 of 1973 against father of

petitioner for eviction from the suit premises in which it was

concluded that father of this petitioner has been inducted as

tenant in a parti piece of land and the provisions of BBC Act is

not applicable. However, the petitioner failed to bring the said

order on record to substantiate his claim.

7. Learned counsel for the petitioner in support of his

contention place reliance on the judgment of this court in the

case of Anant Prasad Sah @ Anant Kumar Gupta Vs.

Devendra Nath Gupta reported in 1993 (2) PLJR 77 wherein

it was held that the provisions contained in Section 2(b) of the

Act, by no means, a parti land bounded with walls will be

included in the definition of building and the suit was not

maintainable.

8. For fixation of rent the plaintiff filed BBC Case No.

24 of 2014 under Section 5 and 8 of BBC Act, before House

Controller-cum-Sub-Divisional Officer, Patna Town and in ex- Patna High Court C.Misc. No.1388 of 2018 dt.16-05-2023

parte proceeding the fair rent was fixed as Rs. 39,620/- per

month (i.e. Rs. 5100 for rent of Hotel namely New Pintu Hotel,

rent of house Rs. 20,520 and rent of parking area Rs. 14,000 per

month) with effect from 20.03.2014 of the lease hold premises.

9. It is admitted by the petitioner that shaw mill was

closed and father of petitioner constructed a shop in front of suit

land which was being used for running Hotel.

10. Learned counsel for the petitioner has submitted

that the learned court below has committed jurisdictional error

by considering the petition under the provision of BBC Act

ignoring that father of petitioner and now this petitioner has

been inducted over a parti piece of land and the provision of

BBC Act will not apply and the same had been earlier held by

the competent court of law. Further, he has submitted that the

learned court below failed to appreciate that the petition is not

maintainable and the eviction suit has been filed suppressing the

true facts and by making false statements which is liable to be

rejected. He has further submitted that plaintiff/ respondent no.

1 may seek appropriate remedy under the Transfer of Property

Act, if so advised.

11. On the other hand, learned counsel for the

respondent no. 1 has submitted that there is relationship of Patna High Court C.Misc. No.1388 of 2018 dt.16-05-2023

landlord and tenant between the plaintiff and defendant. Further

he has submitted that there is building existed on the suit

premises, therefore, the provision of the BBC Act is applicable.

In support of his contention, he has placed reliance on the

judgment in the case of Binay Kumar Maheshwari vs.

Fanindra Prasad Mishra 2000 (2) PLJR 865, Hindustan

Petroleum Corporation Ltd. vs. Rajeshwar Prasad, 2007 (2)

BLJR 2979 and Judgment dated 09.01.2018 passed by this

Court in Shivanand Sah vs. Jyotish Kumar Bhagat & Anr.

(Civil Misc. Jurisdiction No. 970 of 2016). Further, he has

submitted that the learned court below rightly passed the

impugned order which is a reasoned order considering the facts

and circumstances of the case and submission of learned

counsel made on behalf of the parties, the same needs no

interference by this Court and the present Miscellaneous

Application is liable to be set aside.

12. From perusal of Section 15 of the BBC Act, it is

clear that if in a suit for eviction the tenant contest the suit as

regards his ejectment, the landlord may move an application for

an order on the tenant to deposit current rent as also arrears of

rent. The court, before passing the order, shall give an

opportunity to the parties to be heard and prima facie record a Patna High Court C.Misc. No.1388 of 2018 dt.16-05-2023

finding as regards existence of relationship of landlord and

tenant between the parties.

13. Before passing an order under Section 15 of the

BBC Act the court is required to make a summary investigation

and prima facie record a finding regarding existence of

relationship of landlord and tenant before directing the

defendant to deposit the rent in the manner as provided under

Section 15 of the BBC Act.

14. The questions may have to be gone into finally at

the time of trial, but that would not bar to a tentative

determination of the question of relationship of landlord and

tenant at the earlier stage when the provisions of Section 15 of

the BBC Act are resorted to by the landlord.

15. Having heard the learned counsel for the parties

and on perusal of materials on record and the impugned order, it

appears that house rent controller, Patna Sadar has fixed current

fair rent dues against the petitioner of the tenancy house at the

rate of Rs. 39,620/- per month from 20.09.2016 to the

plaintiff/respondent no. 1 and despite demanded by the plaintiff,

the petitioner has not paid arrear of rent.

16. It also appears that the father of plaintiff had

purchased the suit land and the structure and construction upon Patna High Court C.Misc. No.1388 of 2018 dt.16-05-2023

it and the plaintiff after death of his father became one of the co-

owner.

17. Having considered the aforesaid facts and

circumstances, I do not find any merit in this Civil Misc.

Application. The impugned order is a reasoned order and no

case is made out by the petitioner for interference by this court

in its supervisory jurisdiction under Article 227 of the

Constitution of India.

18. This Civil Misc. Application is, accordingly,

dismissed.

19. Before parting with this order, I must clarify that

while disposing of the suit the Court below shall not be

influenced by any of the observation made in this order.

(Sunil Dutta Mishra, J) khushbu/-

AFR/NAFR                NAFR
CAV DATE                16.03.2023
Uploading Date          16.05.2023
Transmission Date