Appeal from the Appellate decree no.34 of 1994 ----------- Against the judgment and decree dated 24.09.1993 passed by Additional District Judge IV, Madhubani in Title Appeal no. 3 of 1992 affirming the judgment and decree dated 28.02.1992 passed by Munsif, Jhanjharpur in Title Suit no. 45 of 1989. ------------- 1. Sri Raj Kumar Kejriwal s/o Sri Narain Pd. Kejriwal. 2. Sri Narain Prasad Kejriwal s/o late Bharat Mal Kejriwal @ Bharat Pd. Kejriwal Both resident of village Kanhauli P.S. Jhanjharpur Dist. Madhubani Defendant Ist party- Appellant- Appellant Versus 1. Smt. Sita Devi w/o Sri Bishwanath Jaipuriyar resident of village Kanhauli P.S. Jhanjharpur Dist. Madhubani Plaintiff-respondent-respondent Ist party 2. Sri Binda Prasad Kejriwal 3. Sri Shrawan Kumar Kejriwal 4. Sri Umesh Kumar Kejriwal 5. Sri Pramod Kumar Kejriwal 6. Sri Sunil Kumar Kejriwal 7. Sri Sanjay Kumar Kejriwal All sons of Narain Prasad Kejriwal resident of village Kanhauli P.S. Jhanjharpur Dist. Madhubani Defendants-Respondents- Respondents 2nd party ----------- For the appellants: Mr Narmadeshwar Jha, Advocate Mr M.N.Choudhary, Advocate Mr Vijay Kumar, Advocate For respondent no.1: Mr Kameshwar Prasad Gupta, Advocate ----------- P R E S E N T HON’BL MR JUSTICE S.N. HUSSAIN S.N.Hussain,J 1. This second appeal has been filed by the defendants Ist party- appellants-appellants challenging the judgments and decree of both the courts below. 2. The matter arises out of Title Suit no.45 of 1989 which was filed by the sole plaintiff- respondent-respondent Ist party with respect to the house with land measuring 31/4 dhurs of plot no. 2489 appertaining to khata no. 397 of Mauza Kanhauli under Jhanjharpur police station within the district of Madhubani detailed in Schedule I of the plaint for the following reliefs:- a) Declaration of title of the plaintiff over the suit property (Schedule I) b)A decree of eviction of defendant no.1 from the suit premises c) Direction to defendants to vacate the suit premises or to get it vacated through the process of the court - 2 - d) A decree of arrears of rent (Schedule II) e) A decree for cost of the suit in favour of the plaintiff f) Any other relief to which the plaintiff is deemed entitled. 3. The plaintiff had claimed that one Kamli Devi had purchased the suit premises from her uncle Ramlal Marwari out of her own income by registered deed dated 04.01.1935 (exhibit 2A). It was also claimed that subsequently the said Kamli sold the suit premises to her grand daughter-in-law Smt. Sita Devi (plaintiff) by registered sale deed dated 23.12.1981(exhibit 2) where after her name was mutated vide order in Mutation Case (exhibit 3) and rent receipts ( exhibit 1 series) were issued in her name. It was further stated that in the year 1986 the plaintiff inducted defendant no. 1 as monthly rent tenant but due to close relationship between them no Kirayanama was prepared. It was also averred that after some time, the said defendant stopped payment of rent and in the year 1988 filed a petition before the Circle Officer for mutation of his name with respect to the suit premises which was dismissed by Circle Officer as well as by DCLR vide orders dated 03.08.1988 and 01.03.1989 but subsequently Additional Collector vide his order dated 20.07.1989 reversed the said orders and hence the plaintiff was constrained to file the aforesaid suit on 30.09.1989 for the aforesaid relief. The admitted genealogy of the family is as follows:- 4. On the other hand, defendants claimed that the suit property was purchased by Kamli Devi from her own money for her son Narain Prasad (defendant no.1-ka) and the said purchase was for the benefit of Narain Prasad who was given charge of the property after he attained majority. It was further - 3 - claimed that father of Narain Prasad got the land mutated in the name of Kamli where after Jamabandi was created, return was submitted, mutation was done and government receipts were issued all in the name of Kamli but Narain Prasad was the payer. It was also averred that in the year 1963 Narain Prasad handed over the suit property to his son Raj Kumar (defendant no.1) who started his business therein and in the year 1966 he got PDS licence and he started his ration shop in the suit premises and got electric connection in his name in the year 1967. In support thereof rent receipts, electric deposits. PDS licence, Karamchari report etc. have been produced as exhibits A,B, D, E and F whereas the original, sale deed was filed as exhibit C. Defendants also challenged the registered sale deed dated 23.12.1981 (exhibit 2) claiming that on the said date Kamli was 90 years old and was not in a position to execute sale deed and there is no evidence to show that Sita Devi (plaintiff) was ever in possession over the suit premises from the date of transfer in her favour in the year 1981 till the date of the alleged letting it out to the said defendant in the year 1986 and only after the death of Kamli in the year 1987 the suit was filed by the plaintiff in the year 1989 . It was also averred that three brothers of Narain Prasad who were witnesses to the sale deed of the plaintiff were inimical to defendant no.1 who had perfected his title by adverse possession if not from 1935 than at least from 1963 when Narain Prasad (defendant no.1-ka) handed over the suit premises to his son defendant no.1. Hence it was averred that there was no question of relationship of landlord and tenant between the plaintiff and defendant no.1 nor there is any evidence to prove the same. 5. The said suit was contested by only defendant Ist party, hence on the basis of pleading of the parties the trial court framed the following issues:- i) Is the suit as framed maintainable? ii) Has the plaintiff cause of action or right to sue? iii) Is the suit barred by law of limitation and principles of - 4 - estoppel, waiver and acquisence? iv) Is the suit properly valued? v) Is there relationship of landlord and tenant between the plaintiff and defendants and the defendants are the defaulters? vi) Is the suit bad for non-joinder of the parties? vii)Is the suit barred under the provisions of Specific Relief Act viii) Had Kamli Devi any right to transfer the suit properties to the plaintiff? ix) Is the sale deed executed by Kamli Devi on 23.12.1981 in favour of Sita Devi valid, genuine and operative? x) Have the defendants perfected their title by adverse possession over the suit properties by virtue of sale deed dated 04.01.1935? xi) Is the plaintiff entitled to any relief? 6. The said suit was decreed on contest by the Munsif, Jhanjharpur vide his judgment and decree dated 28.02.1992 after arriving at the following findings:- a) Though the plaintiff failed to show cogent reasons for cause of action to bring the suit, she had got cause of action as purchaser of the suit land /house. b) Issue nos. (iii), (vi) and (vii) not pressed by either of the parties. c) Neither there is any relationship of landlord and tenant between the plaintiff and defendant no.1 nor the suit house was let out on rent nor the said defendant is a defaulter as he is merely a permissible occupier. d) Sale deed dated 23.12.1981 executed by Kamli Devi in favour of Sita Devi with respect to the suit land/ house is valid, genuine and operative. e) Suit house and land after purchase became absolute property of Kamli Devi and so she had every right to transfer the same to any one. f) Defendants failed to prove their title by adverse possession over the suit land. g) Suit as framed is maintainable and the plaintiff is entitled to a decree for declaration of title over the suit land and house and also for recovery of possession as it is now inoccupation of defendant no.1. 7. Against the aforesaid judgment and decree of the trial court, defendant no.1 and defendant no.1(k) namely Raj Kumar Kejriwal and his father Narain Prasad (appellants) filed Eviction Appeal no.3 of 1992 in which the plaintiff-respondent appeared and contested, where after following points were framed by the lower appellate court for deciding the title appeal which are as - 5 - follows:- i) Whether the plaintiff has acquired valid right, title and interest to the suit premises? ii) Whether defendant no.1-appellant is the tenant and the plaintiff-respondent is the landlord of the suit house? iii) Whether there is arrears of rent of the plaintiff against defendant no.1 to the tune of Rs 3450/-? iv) Whether defendant no.1-appellant is defaulter in the suit house? v) Whether the suit is maintainable? 8. After considering the pleadings and evidence of the parties Additional District Judge IV, Madhubani dismissed the eviction appeal on contest vide his judgment and decree dated 24.09.1993 after arriving at following findings:- a) Oral and documentary evidence adduced on behalf of defendants does not show that they ever acquired valid right, title and interest to the suit land. b) Plea of Benami transaction taken by Narain Prasad Kejriwal is not maintainable as per section 4 of the Act. c) Plaintiff proved that she acquired valid right ,title and interest to the suit premises since the date of its purchase from Kamli Devi through exhibit 2( certified copy of the deed). d) Defendant no.1 Raj Kumar Kejriwal is the tenant of the suit premises and the plaintiff is landlord. e) Defendant no.1 is defaulter in payment of rent of the suit house for approximately two years and owes Rs 3450/- to the plaintiff. f) The suit is maintainable and the judgment and decree of the trial court is correct. 9. Against the judgments and decree of the courts below instant second appeal has been filed by defendants Ist party- appellants- appellants which was admitted by a bench of this court on 12.07.1995 on the basis of following substantial question of law:- “Whether in view of the findings of the learned appellate court in paragraph 11 that defendant, Raj Kumar Kejriwal was a tenant under the plaintiff and he defaulted in payment of rent, the suit for declaration of title and recovery was maintained?” 10. On the basis of aforesaid substantial question of law, - 6 - learned counsel for the appellants, namely, Raj Kumar and Narain Prasad (defendant no.1 and defendant no. 1-ka) argued that the suit was mainly for declaration of title and recovery of possession and hence in the same suit eviction of the tenant can not legally be sought for because one is under general law including the provision of Transfer of Property Act, 1882 whereas the other is under the Bihar Buildings (Lease, Rent and Eviction) Control Act,1982 for which the requirements are completely different and can not be legally intermingled. It was also averred that on the basis of sale deed dated 23.12.1981 (exhibit C) said to have been executed by Kamli, the plaintiff did not acquire any title as Kamli had no right, title or interest in the suit property which was purchased in the name of Kamli by registered deed dated 04.01.1935 from the money received by her son Narain Prasad at the time of his Chhatti and for the benefit of her son Narain Prasad who was the real owner of the suit property and who handed over the same to his son Raj Kumar (defendant no.1) in the year 1963, since when defendant no.1 was in peaceful and continuous possession and had perfected his title by adverse possession. It was also argued that there can not be any eyewitness to the purchase made in the name of Kamli in the year 1935 but DW 13 clearly averred that purchase by Kamli was for the benefit of Narain Prasad,which is also apparent from the facts that the original sale deed was with defendant no.1. It was also averred that there is no evidence at all to show that defendant no.1 was inducted as tenant by the plaintiff or he was ever paying rent of the suit premises to the plaintiff. Thus, he averred that the impugned judgments and decree of the courts below are illegal, arbitrary, perverse and are fit to be set aside. 11.On the other hand, learned counsel for plaintiff-respondent no.1 supported the judgment and findings of the lower appellate court and averred that neither there is any document to show that Narain Prasad had ever - 7 - become owner the suit premises or the suit premises was ever transferred by him to his son Raj Kumar whereas the plaintiff had been able to prove by registered deed that she was the exclusive owner of the suit property and defendant no.1 was inducted as tenant but he stopped payment of rent and had become defaulter and in addition thereto he had started claming his title over the suit property without any legal or factual basis. 12. Considering the arguments raised on behalf of both the parties as well as the pleadings and evidence adduced by them and the judgments and decree of the courts below, it is quite apparent that the suit was mainly for declaration of title and recovery of possession along with other ancillary reliefs and throughout continued under the general law and not under the specific provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. Furthermore, since the question of title and possession was disputed by defendants the said issue was to be decided by the court below on the basis of the pleadings and evidence of the parties. Furthermore, when both the courts below had found title of the plaintiff, they had to consider also the manner of possession of defendants while dealing with the question of recovery of possession. Due to the aforesaid requirement both the courts below had considered the said question and the trial court had found that defendants were in occupation on the permission of the plaintiff whereas the lower appellate court had found that defendants were in possession as tenants and in both circumstances decree for recovery of possession was legal and proper specially when defendants had claimed their own title over the suit land and had failed to substantiate the same by any valid and legal evidence. 13. So far registered sale deed dated 04.01.1935 (exhibit 2A) executed by admitted original owner Ramlal Marwari in favour of Kamli with respect to the suit land is concerned, there is no material at all to show that either - 8 - it was purchased from money received by her son Narain Prasad at the time of his Chhatti or it was purchased for his benefit. Learned counsel for the appellants has relied upon depositions of DWs 7, 8 and 13 as well as rent receipt exhibit A series and also the original sale deed (exhibit C) produced from defendants’ possession. DW 7 is a complete stranger to the family and his deposition with regard to the said ceremony in the family can not be relied upon whereas DW 8 according to his own claim was less than ten years old in the year 1935. Hence only on the basis of some statements made by PW 13 the said claim of defendants can not be held to be proved specially when the other sons of Kamli deposing as PWs 4, 5 and 8 had fully supported the claim of the plaintiff and had falsified the statement of the aforesaid outsiders. 14. So far the order of mutation and rent receipts including exhibit A series are concerned, they are also in the name of Kamli on the basis of her purchase by the above mentioned registered deed and only payment of rent had been shown to be made through her son Narain Prasad. It is not in dispute that eldest son of Mostt. Kamli was adopted by his uncle whereas her second son Nandlal died issueless and Narain Prasad being the eldest of the remaining sons was naturally looking after the affairs of his mother and rent was paid by Kamli through him. Hence defendants can not legally take any help from the said documents. Furthermore, nothing adverse can be presumed due to the production of original sale deed (exhibit C) by defendants due to close relationship between the parties specially when Narain Prasad being the eldest son of Kamli was looking after her affairs. It may be noted that neither there is any document nor there is any order of mutation or rent receipt in the name of either Narain Prasad or in the name of Raj Kumar. So far question of adverse possession raised by defendants is concerned, onus was squarely upon them to prove the same but they miserably failed as they could not show by any valid - 9 - and reliable material that they were ever in possession, hostile to the interest of the original owner rather they were refuting plaintiff’s ownership and were also unable to show that they were in possession since the year 1963. 15. In the said circumstances, it is quite apparent that the courts below had rightly come to the conclusion that Kamli was the absolute owner of the suit premises on the basis of registered sale deed dated 04.01.1935 and had remained in exclusive possession thereof and was thus fully entitled to transfer the same to her grand daughter Smt. Sita Devi (plaintiff) by registered deed dated 23.12.1981 on the basis of which the plaintiff came in exclusive possession of the suit premises as absolute owner thereof. 16. It is not in dispute that Kamli after her purchase in the year 1935 was living in the suit house along with her family including the defendants and hence she had permitted to defendants to use a portion of the suit premises for any business but that would not confer any right and title upon defendants. Furthermore, the plaintiff having purchased the suit premises by registered document dated 23.12.1981 and the suit having been filed within eight years i.e. 1989 there can not be any question of adverse possession. Hence due to the aforesaid frivolous claim raised by defendants with respect to the title and adverse possession the plaintiff was clearly entitled to recovery of possession from defendants. Furthermore admittedly the plaintiff was throughout mutated on the basis of her sale deed dated 23.12.1981 and for the first time order was passed by the Additional Collector in Mutation Revision dated 20.07.1989 against her which resulted in the filing of the said suit. 17. So far question of tenancy is concerned, PWs 4, 5, 6, 8 and 9, out of whom PWs 4, 5 and 8 were full brothers and uncle of defendants, fully proved the tenancy between the plaintiff and the defendant no.1 since 1986 as well as payment of rent by the said defendant to the plaintiff for some time - 10 - where after payment of rent was stopped. The courts below had rightly found the said witnesses to be reliable and trustworthy, This court also finds the said evidence adduced on behalf of the plaintiff to be reliable and trustworthy clearly proving the claim of the plaintiff. 18. In the said circumstances, this Court does not find any illegality in the impugned judgment and decree of the court of appeal below, nor does it find the question raised by the appellants mentioned above to be substantiated by any law or material. Accordingly this second appeal is dismissed. However, in the facts and circumstances, there will be no order as to cost. (S.N.Hussain,J) The Patna High Court The April, 2010 Shahid/NAFR