APPEAL FROM APPELLATE DECREE NO. 155 OF 1996 …….. Against judgment and decree dated 30.04.1996 passed by Shri Akhilesh Chandra, 1st Additional District Judge, West Champaran, Bettiah in Title Appeal No. 36of 1992(68 of 1995) affirming judgment and decree dated 11.06.1992 passed by Shri Kamla Prasad, Sub-Judge IV, Bettiah in Title Suit No.11/55 of 1981/1989. ……… Syed Abdul Majid ……………… Appellant Versus Vijay Kumar Jhunjhunwala & another ………………..Respondents ……… For the appellant : M/s Indu Shekhar Prasad Sinha, Sr. Advocate and Shashi Nath Jha, Advocate. For the respondents : M/s Umesh Prasad Singh, Sr.Advocate,Ganpati Trivedi and Dev Kumar Pandey, Advocates. P R E S E N T THE HON’BLE MR. JUSTICE S. N. HUSSAIN ………….. S. N. Hussain, J. This second appeal has been filed by defendant-appellant-appellant challenging the judgments and decree of both the learned courts below. 2. The instant matter arises out of Title Suit No. 11 of 1981(55 of 1986), which was filed by the sole plaintiff-respondent-respondent no.1 for declaration that the suit premises, which is a shop on the ground floor of holding no.226 situated in Mohulla Lal Bazar in the town of Bettiah (West Champaran) detailed in Schedule-I of the plaint belonged to the plaintiff as its exclusive owner and that the possession of the defendants was illegal and they were liable to be evicted from the suit premises and also for realization of damages and mesne profits. 3. The aforesaid suit was decreed by the learned Subordinate Judge, Bettiah by his judgment and decree dated 12.03.1986, which was challenged by the defendant-appellant in Title Appeal No. 6 of 1986. The said title appeal was allowed by the learned Additional District Judge-II, West Champaran by judgment and decree dated 20.01.1988 setting aside judgment and decree of the trial court and remanding the matter to the trial court for 2 deciding two issues relating to damages and non-joinder of M/s Chandra Brothers. 4. After the said remand, the learned Subordinate Judge-IV, Bettiah again considered the matter including the two issues framed by the lower appellate court and decreed the suit on contest with cost by judgment and decree dated 11.06.1992, which was challenged by defendant-appellant in Title Appeal No. 36 of 1992( 68 of 1995) and finally by judgment and decree dated 30.04.1996, the said title appeal was dismissed by the learned Additional District Judge-I, West Champaran, affirming the judgment and decree of the learned trial court dated 11.06.1992. Against the said judgments and decrees of the learned courts below, defendant-appellant has filed the instant second appeal. 5. The claim of plaintiff-respondent no.1 is that he is the owner of the suit premises, which he leased out on rent to M/s Chandra Brothers, on whose behalf its then Manager Gopal Das Sinha executed an agreement on 15.08.1953. It is also claimed that subsequently on 10.12.1962 a fresh agreement was entered into between the plaintiff and M/s Chandra Brothers, on whose behalf its new Manager (defendant no.1-appellant) executed the agreement. It was also claimed by the plaintiff that on 02.01.1976 the sign board of M/s Chandra Brothers was replaced by the sign board of Light House and on enquiry the plaintiff learnt that M/s Chandra Brothers had left the suit premises, whereafter defendant no.1-appellant had started running his own business in the suit premises. Thus, it was claimed by the plaintiff that the tenancy of M/s Chandra Brothers stood automatically terminated, whereafter defendant no.1-appellant came in possession although he had no right to continue in occupation of the suit premises. 6. On the other hand, claim of defendant no.1-appellant is that by agreement dated 10.12.1962 the plaintiff inducted defendant no.1 as his tenant in the suit premises, hence he is not a trespasser, rather is a tenant of the plaintiff and can be evicted only through the process as prescribed under the 3 Bihar Buildings ( Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as `the Act‟ for the sake of brevity). Defendant no.1-appellant also claimed that the suit was barred by the principle of res-judicata under section 11 of the Code of Civil Procedure(hereinafter referred to the Code for the sake of brevity), in view of the order of the House Controller dated 13/14.04.1981 (Ext.G) as well as the appellate order of the Collector dated 02.10.1985 (Ext.H), which were passed under the provisions of sections 9 and 24 of the Act. Hence, it was prayed that the suit had no merit at all and was fit to be dismissed. 7. On pleadings of the parties, the learned trial court framed the following issues for deciding the suit: (i) Is the suit as framed maintainable? (ii) Has the plaintiff got cause of action and right to sue? (iii) Is the suit bad for defects of parties? (iv) Are the defendants trespassers in the suit house? (v) Are the defendants liable to be evicted from the suit house? (vi) Is the plaintiff entitled to recover mesne profit and damage and if so, to what extent? (vii) Is the plaintiff entitled to get the relief as sought for? 8. On the said issues, evidence were led by the parties and after considering the said materials and the arguments raised by the parties, the learned trial court decreed the suit vide its impugned judgment and decree dated 11.06.1992 after arriving at the following findings :- (a) Defendant no.1 has not raised any plea of defects of parties regarding M/s Chandra Brothers in his written statement and while deposing as D.W.6 had stated that M/s Chandra Brothers had no concern with the agreement of 1962 nor it had any concern with the payment of rent of the suit premises, hence defendant no.1 had accepted the fact that M/s Chandra Brothers is not a necessary party to the suit. Thus, there was no defect of parties due to non-joinder of M/s Chandra Brothers. (b) Admittedly M/s Chandra Brothers wounded up its business in December, 1975 when defendant no.1 was its Manager, but taking advantage of the situation, defendant no.1 opened his own shop as Light House without any agreement with the 4 plaintiff and hence he is a trespasser liable to be evicted from the suit premises. (c) It is admitted that the house was given on monthly rental of Rs.65.00 in the year 1962 to M/s Chandra Brothers, hence due to increase of price since 1962, a reasonable damage would be Rs.100.00 per month. Admittedly, no amount having been paid to the plaintiff since the filing of the suit, the plaintiff is found to be entitled to Rs.3,600.00 as damages till the date of trial court decree and he is also entitled to get Rs.100.00 per month till vacation of the suit premises as mesne profit. (d) The defendants neither produced any evidence nor pressed the point regarding maintainability of the suit at the time of argument, hence the Court does not find any defect regarding framing of the suit. (e) The plaintiff has got valid cause of action and right to sue and is entitled to get the relief as claimed for. 9. Against the aforesaid judgment and decree of the trial court dated 11.06.1992, defendant no.1 filed Title Appeal No. 36 of 1992 ( 68 of 1995 ) and after considering the claim of the parties, the learned court of appeal below framed the following issues for deciding the appeal: (i) Whether due to absence of some exhibits on behalf of the defendants, the appeal is bound to be allowed? (ii) Whether M/s Chandra Brothers was a necessary party to the suit and the suit is bound to fail in his absence? (iii) Whether the plaintiff-respondent is entitled for a decree of damages and mesne profit etc. as claimed for? (iv) Whether the defendant-appellant is trespasser or Exts. G and H would operate as res-judicata taking out this question from the jurisdiction of this court? 10. The learned court of appeal below considered the said issues in the light of the pleadings of the parties and the evidence adduced by them and finally by impugned judgment and decree dated 30.04.1996 dismissed the appeal after arriving at the following findings: (a) The missing documents find mention in the two earlier judgments dated 12.03.1986 and 20.01.1988, which were delivered before the documents were misplaced and, admittedly, none of the parties are in a position to substitute the same, so 5 the question of reconstruction does not arise leaving no option to the court but to proceed in absence thereof. Similar arguments were raised by the defendant-appellant in the trial court also, which rejected his contention vide order dated 13.08.1991 and directed the parties to come prepared for arguments in the title suit. The said order of the trial court was challenged by the defendant-appellant before the High Court vide Civil Revision No. 1948 of 1991, which was withdrawn by the defendant-appellant himself on 06.01.1992 and hence it is quite clear that the defendant himself agreed that the matter should be decided on the materials already available on the record. Raising similar matter again by the bar is not appreciable in any manner, hence, this issue is decided against the appellant. (b) M/s Chandra Brothers is not at all a necessary party. (c) The damage at the rate of Rs.100.00 per month in no way can be said to be excessive and unreasonable. (d) The suit is not hit by mischief of section 11 of the Code of Civil Procedure (hereinafter referred to as `the Code‟ for the sake of brevity) and the defendant-appellant is stopped from raising the point of res judicata. (e) Plaintiff-respondent has been dragged into litigation for the last 16 years and is deprived of his due right and occupation over the suit premises by an unauthorized person. (f) Defendant-appellant is a trespasser for the last two decades on flimsy and vexatious grounds. 11. Against the aforesaid judgments and decree of the learned courts below, defendant-appellant filed the instant second appeal on 25.06.1996, which was admitted on 16.09.1996 directing continuation of the interim order dated 28.06.1996 and observing that the defendant-appellant shall not be evicted from the suit premises until further orders. Subsequently the following substantial questions of law were framed by order dated 07.09.2006 for determination in the instant second appeal: (i) As to whether the defendant-appellant is a tenant or trespasser? (ii) As to whether question of res-judicata will arise due to the orders of the House Controller and the Collector passed in the 6 proceedings with respect to question raised under section 10 of the Act? 12. At the time of final hearing of the instant second appeal learned counsel for the appellant filed a note of argument raising one more substantial question of law apart from the question of res-judicata, which is as follows: (iii) Whether the suit and plaint of plaintiff-respondent were bad for non-joinder of M/s Chandra Brothers, who according to the defendant-appellant was a necessary party to the suit? 13. So far question no.(i) is concerned, it is an admitted fact that the plaintiff-respondent no.1 is the owner of the suit premises. It is not in dispute that the said house was given on rent by the plaintiff to M/s Chandra Brothers vide agreement dated 15.08.1953 and on behalf of tenant M/s Chandra Brothers the document was signed by its then Manager Gopal Das Sinha. It is also admitted by the parties that a fresh agreement of tenancy was executed on 10.12.1962 between the plaintiff and the said tenant M/s Chandra Brothers on whose behalf its new Manager Sayed Abdul Majid executed the agreement. It is further admitted by defendant no.1- appellant that now M/s Chandra Brothers is not the tenant of the suit premises and defendant no.1-appellant is running his own business in the suit premises. Hence the claim of the plaintiff is that M/s Chandra Brothers having left the suit premises in the year 1976, defendant no.1 is in illegal possession of the suit premises as trespasser, due to which the plaintiff filed the suit for his eviction in the year 1981. 14. On the other hand, the defendant claims that in fact the agreement of tenancy dated 10.12.1962 was between the plaintiff and defendant no.1, who at that time was running M/s Chandra Brothers and is now running another business under the name and style of “Light House” and hence the defendant is not a trespasser, rather he is a tenant of the plaintiff in the suit premises and hence he can be evicted only by a suit filed under the provision of the Act and not in the instant suit. From the original agreement of tenancy dated 15.08.1953(Ext.5) as well as from the subsequent agreement for tenancy dated 10.12.1962(Ext.5/1), it is quite apparent that the landlord was the 7 plaintiff whereas the tenant was M/s Chandra Brothers whereas its managers executed the said deeds only on behalf of M/s Chandra Brothers and not independently as tenants themselves. The earlier document was executed by the former Manager Gopal Das Sinha whereas the subsequent agreement was executed the defendant merely as a Manager and on behalf of M/s Chandra Brothers and hence in such circumstances the Manger, who had signed on behalf of the firm cannot himself claim to be a tenant, rather obviously the tenant would the company. Thus it is quite apparent that the defendant cannot be held to be tenant on the basis of the aforesaid agreement for tenancy dated 10.12.1962. 15. Apart from the aforesaid agreement of tenancy there is no material at all to show that the plaintiff ever inducted or even accepted the defendant as his tenant. The rent receipts were also in the name of M/s Chandra Brothers up to 1975 but no rent receipts from 1976 has been produced by the defendant to prove his claim of tenancy. Furthermore it is an admitted fact that since 1976 M/s Chandra Brothers did not continue in the suit premises nor the defendant has any concern left in the said firm. Even for opening a new shop under the name and style of “Light House” the defendant did not take the consent of the plaintiff and remained in occupation of the suit premises and never paid rent. In the said circumstances, there is no material at all to show that the defendant is the tenant of the plaintiff and even Ext.5 mentioned above is not a document of tenancy between the plaintiff and defendant no.1, as according to the said deed, the tenant was M/s Chandra Brothers who admittedly is no longer a tenant after 1975. In the said circumstances, the learned courts below have rightly come to the conclusion that the defendant is not a tenant, rather he is a rank trespasser. 16. So far question no.(iii) is concerned, the claim of the defendant is that the suit is bad for non-joinder of M/s Chandra Brothers, who was a necessary party to the suit. The claim of the defendant appears to be self contradictory, as on the one hand, he claims that M/s Chandra Brothers was not 8 tenant of the suit premises rather it was the defendant himself who was the tenant, specially since 1976 when the tenant had started his new business in the name and style of “Light House”, whereas on the other hand he claims that the said M/s Chandra Brothers is a necessary party in the suit, which was filed in the year 1981. No doubt from the agreements of tenancy dated 15.08.1953 and 10.12.1962, it is quite apparent that the tenant was M/s Chandra Brothers but the specific case of the defendant was that he was running M/s Chandra Brothers which came to an end and from 1976 he is running a new shop in the suit premises in the name and style of “Light House”. In the said circumstances, it is quite clear that the tenancy with M/s Chandra Brothers as per the agreement of tenancy dated 10.12.1962 ended in the year 1975 and accordingly thereafter the said M/s Chandra Brothers had no concern left with the suit premises. Hence the learned courts below have rightly come to the conclusion that M/s Chandra Brothers was not at all a necessary party for the suit, which is not bad for non-joinder of the said M/s Chandra Brothers. 17. So far question no.(ii) with respect to res-judicata is concerned, the claim of the defendant is that due to orders of the House Controller and Collector passed under the Act with respect to the suit premises, the instant suit is barred under the provision of section 11 of the Code. It transpires that Case No. 21H.C. of 1981 was filed by defendant no.1 against the plaintiff before the House Controller, namely, the Circle Officer, Bettiah, under the provision of section 9 of the Act for annual repairing, etc. and immediately after the filing of the said case, the same was allowed ex-parte vide order dated 13/14.04.1981(Ext.G) by the said authority. It further transpires that against the said order of the House Controller the plaintiff filed an appeal bearing R.A. No. 12/1981-1982 before the Collector, West Champaran under the provision of section 24 of the Act claiming that the defendant was a rank trespasser and was never a tenant of the plaintiff. However, the learned Collector rejected the appeal vide order dated 02.10.1985(Ext.H)only on the ground that the House Controller had simply allowed the defendant to repair the roof for avoiding 9 damage of the shop and also for avoiding any danger of life to the respondent and his employees and customers. It was also observed therein that the said direction of the House Controller was simply an administrative direction and was not a judicial order of any substantive nature. The instant suit was filed on 04.02.1981 and hence the said orders and the House Controller and Collector, namely, Exts.G and H were passed during the pendency of the suit. Not only that even the case filed by the defendant before the House Controller appears to have been filed after the filing of the suit by the plaintiff and hence, it is quite apparent that the said case was filed by the defendant only to create some evidence with respect to his claim in the suit. 18. With respect to res-judicata the law is that an issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res-judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised(see Explanation VIII of section 11 of the Code). In the said circumstances for deciding a suit to be res-judicata there should be an earlier decision by a court competent to decide such issue. Section 2(d) of the Act defines „Court‟ as court having jurisdiction under the Code to entertain a suit by a landlord against a tenant for recovery of possession of building in respect of which a suit or application is filed under the Act. Hence, according to the said definition neither the House Controller nor the Collector can be said to be a court. The law is well settled that the House Controller or the Collector under the provisions of the Act are merely statutory Tribunals and are neither courts nor the proceeding before them can be declared to be judicial proceedings, although limited procedural powers contained in the Code has been conferred (see the decision in the case of Chandrashekhar Prasad Vs. The State of Bihar, reported in 1992 B.B.C.J. 245). 19. A Full Bench of this court has also decided the matter in case of Kishun Sah Vs. Harinandan Prasad Sah and others, reported in A.I.R. 1963 10 page 79 holding that no power has been given to the Controller under the Act to decide finally and conclusively the question of existences of relationship of landlord and tenant between the parties or the question as to whether the premises occupied by the tenant is a building. These are jurisdictional facts and with regard to these facts, the Controller or his higher authorities cannot possibly be held to have exclusive jurisdiction. The provision relating to finality of the decision of the Collector can apply only to their decision relating to matters, which are within their exclusive jurisdiction. It follows, therefore, that a decision of the Collector as to existence of relationship of landlord and tenant between the parties is not final and its correctness is liable to be examined by the Civil Court. Furthermore, a Tribunal of limited jurisdiction cannot have unlimited power to determine the limit and assume jurisdiction or in other words, it cannot usurp the jurisdiction of a Civil Court. 20. The Hon‟ble Apex Court also in case of Sajjadanashin Sayed Md B.E. Edr.(D) Vs. Musa Dadabhai Ummer & Ors. reported in 2000(3) SCC 350 has specifically held that the words used in Section 11 CPC are “ directly and substantially in issue”. If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res- judicata in a subsequent proceeding but if a matter was only “collaterally or incidentally” in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res-judicata in a latter proceeding where the matter is “directly and substantially” in issue. The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one i.e. ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression “collaterally or incidentally” in issue implies that there is another matter which is “directly or substantially” in issue. 21. From the aforesaid sections 5 to 10 and 24 of the Act as well as the principles of law as settled above clearly show that the House Controller or the Collector had no jurisdiction nor they were competent to decide the issue of 11 relationship of landlord and tenant between the parties nor they can usurp the jurisdiction of Civil Court in that regard and nor even the said authorities decided the said issue, rather the order of the House Controller(Ext.G) being ex-parte order, the Collector himself in his order in appeal(Ext.H) subsequently held that the direction was simply administrative in nature and was not a judicial order of any substantive nature. Furthermore, it is already decided above that the defendant was not a tenant of the plaintiff, rather he was merely a trespasser and hence, the provision of the Act or any order passed thereunder will not affect the instant suit, which has not been filed under the provision of the Act. Accordingly, no question of res-judicata would arise due to the aforesaid orders of the House Controller and the Collector in the instant suit. 22. On the basis of the aforesaid facts, findings and provisions of law, it is quite apparent that there is no illegality in the impugned judgments and decree of the learned courts below. It is also clear from the pleadings and evidence as well as the provision of law that the questions raised by the appellants cannot be legally held to be substantial questions of law. Accordingly, this second appeal is dismissed and the judgments and decree of the learned courts below are hereby affirmed, but in the facts and circumstances of this case there will be no order as to cost. Patna High Court (S.N. Hussain, J.) Dated, 11th of September, 2008 N.A.F.R./Harish