IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.417 of 1993 =========================================================== Shri Sukdeoji, son of Late Basudeo Ji, resident of Mohalla Sahibganj Purani Gurhatti, P.O. and P.S. Chapra Town, District-Saran. .... .... Appellant Versus 1. Purushottam Sharma 2. Prahlad Sharma, 1 and 2 both sons of Late Kedar Maharaj 3. Mostt. Name not known widow of Kedar Maharaj .... .... Respondents =========================================================== Appearance : For the Appellant : Mr. Jogendra Mishra,Sr.Adv. & Mr. Ramesh Kumar Choudhary For the Respondents : Mr. Suresh Prasad Sinha & Mr. Ratan Kumar Sinha =========================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIJAYENDRA NATH) Heard the learned counsel appearing on behalf of the appellants as well as the respondents. This second appeal has been filed against the judgment and decree dated 9- 7-1993 passed by 6th Additional District Judge, Chapra, in Eviction Appeal No. 6/2 of 1992 affirming the judgment and decree dated 24-7-1992 passed by Additional Munsif II, Chapra, in Eviction Case No. 2 of 1988/16 of 1989. 2. The matrix of facts appearing from the pleadings of the parties is that the father of the plaintiff owned a double-storied house standing over an area of 2 kathas 1 dhurs in Mohallah Sahebganj, Chapra town, mentioned in the Schedule of the plaint. By gift deed dated 24-7-1974 he(father) gifted southern half of the house to the plaintiff and by gift deed of the same date he gifted northern half of the house to the brother of the plaintiff, namely, Baldeoji and delivered possession to the donees. The gifted portion of the house to the plaintiff has been described in Schedule II of the plaint. The plaintiff and his brother Baldeoji , accordingly, got their names mutated with regard to their gifted portions in the house and separate Patna High Court SA No.417 of 1993 dt.09-12-2011 - 2 - Holding Nos. 215 and 215A had been established in the name of the plaintiff and his brother respectively. 3 It is the case of the plaintiff that the defendants are the tenants of the plaintiff in the two rooms on the ground floor at a monthly rental of Rs.250/ per month. However, the plaintiff has asserted that he requires the suit premises reasonably and in good faith for the business purposes of his four sons, one of whom is running his business in a rented premises. Thus, the plaintiff has filed the suit for eviction on the ground of personal necessity alone. 4. The defendants in their written statement denied the relationship of landlord and tenant and have asserted that the plaintiff has no title and possession over the suit premises. It is the case of the defendants that no gift deed, as claimed, had been executed by the father of the plaintiff, namely, Basudeo Ji, in favour of the plaintiff, and the alleged deed of gift dated 24-7-1974 propounded by the plaintiff is forged, fabricated and inoperative document. The defendants have further stated that they never paid any rent to the plaintiff and further the need of the plaintiff for establishing his four sons in business has also been denied. The specific case of the defendants is that their father Kedar Maharaj had taken the suit premises on rent from Basudeo Ji for running his business. On 29-12-1977 Basudeo Ji gifted the suit premises to his son Ranbir Kumar Gupta, who accepted the same and Basudeo Ji directed the defendant-tenants to make payment of rent to Ranbir Kumar Gupta from January 1978 onwards. The defendants have claimed that they are regularly paying rent to Ranbir Kumar Gupta with regard to the rented premises. It has also been contended by the defendants that the gift deed in favour of the plaintiff had been cancelled on 30-8-1977 by a registered deed of cancellation against which the plaintiff had filed a title suit which though decreed but an appeal by Ranbir Kumar Gupta against the said judgment and decree is pending. 5. After hearing the parties and considering the evidence led by them the trial court came to the finding that there was no relationship of landlord and tenant in Patna High Court SA No.417 of 1993 dt.09-12-2011 - 3 - between the plaintiff and the defendants. The trial court had taken notice of the decision of the title suit in favour of the plaintiff, but refused to grant decree on the basis of title in absence of any relief based upon title and consequently dismissed the suit. 6. In appeal filed by the plaintiff the appellate court on reconsideration of the evidence has affirmed the finding of the trial court that there is no relationship of landlord and tenant. While considering the grant of decree on the basis of title, the appellate court has held that since the defendants had set up the title of the suit premises into Ranbir Kumar Gupta, who is not a party to the eviction suit, the relief based upon title cannot be granted. 7. This second appeal has been admitted for hearing by order dated 1-3-1994 and the following substantial question of law was framed for consideration: “Whether the defendant tenant can question the title of the appellant over the suit premises when the plaintiff-appellant had become owner of the suit house by operation of law on the basis of deed of gift executed in his favour by his father though subsequently revoked by his father?” 8. During the pendency of this appeal the I.A.No. 5637 of 2010 has been filed on behalf of the appellant under Order 41 Rule 27 C.P.C. seeking to adduce the copies of judgments and decree and order in a review petition of the subsequent title suit and appeals between the plaintiff and his brother Ranbir Kumar Gupta wherein the defendant-tenants were also parties as additional evidence in this appeal. The documents are the judgment and decree dated 6-9-1997 in T.S.No. 28 of 1994 of the court of Subordinate Judge III, Saran at Chapra, the judgment dated 25-11-1998 inT.A.No. 64 of 1997 of the court of Additional District Judge V, Saran, Chapra, the judgment and decree dated 19-5-2000 in S.A.No. 67 of 1999 of this Court, the order dated 1-11-2000 passed in S.L.P.(C) no. 15103/2000 by the Hon’ble Supreme Court and the order dated 12-12-2000 passed by the Hon’ble Supreme Court in Review Petition no. C 1271/2000 . No rejoinder to this Interlocutory application has been filed by the respondents denying the authenticity of those documents. It has been Patna High Court SA No.417 of 1993 dt.09-12-2011 - 4 - averred in the Interlocutory application that during the pendency of this second appeal T.S.No. 28 of 1994 was filed for declaration of title and confirmation of possession by the plaintiff(Sri Sukdeoji) on the basis of the deed of gift dated 24-7- 1974 and in that suit Ranbir Kumar Gupta, the brother of the plaintiff as well as these defendant-tenants(respondents in this appeal) were impleaded as defendants. This T.S.No. 28 of 1994 was decreed holding that the deed of gift executed in favour of the plaintiff by his father with regard to the suit property was still a legal and valid document and the subsequent gift deed dated 29-12-1977 executed by the father of the plaintiff in favour of his another son Ranbir Kumar Gupta on the basis of deed of cancellation of the previous gift deed of the same property was a void document. It has been further held in the said suit that the plaintiff has valid title over the suit property and is entitled to get the decree of recovery of possession and the possession over the suit property of the brother of the plaintiff has been found to be only permissive. It also appears from the judgment of the said title suit that the decree for recovery of possession against the other defendants, who were tenants(respondents) was not passed only because of the pendency of this second appeal. This judgment and decree of T.S.No. 28 of 1994 was challenged up to the Hon’ble Supreme Court but without success. 9. From the facts of this case it is clear that the plaintiff(appellant) has filed this eviction suit against the defendant-tenants(respondents) on the ground of personal necessity and has claimed his title over the suit property on the basis of gift deed dated 24-7-1974 executed in his favour by his father. The defendant-tenants did not deny their status as tenant in the suit premises, but they have resisted the claim of the plaintiff on the ground that they are not the tenants of the plaintiff rather they are the tenants of his brother Ranbir Kumar Gupta in whose favour the father (admitted original owner) of the suit property had executed a gift deed with regard to the suit property after canceling the gift deed in favour of the plaintiff. Both the courts below have refused to grant the decree for eviction of the defendants from the suit premises Patna High Court SA No.417 of 1993 dt.09-12-2011 - 5 - on the ground that the plaintiff has failed to establish the relationship of landlord and tenant although it has been concurrently held that the plaintiff has the personal necessity of the suit premises. 10. The defendant-tenants(respondents) have not denied the filing of T.S.No. 28 of 1994 by the plaintiff for declaration of title and recovery of possession and have also not denied that they were parties in the said suit as defendants alongwith their alleged landlord Ranbir Kumar Gupta, brother of the plaintiff. From the judgment and decree of T.S.No. 28 of 1994 affirmed up to the Apex Court it appears that the title of the plaintiff over the suit premises has been upheld with the decree for recovery of possession against the defendant no.1, Ranbir Kumar Gupta, who has been found to be in permissive possession over the suit premises. It is also clear that the decree for recovery of possession against the other defendants in that suit(respondents in this appeal) could not be passed only because of the pendency of this second appeal. In this view of the matter, the question whether in view of the events arising subsequent to the filing of the suit conclusively establishing the title of the plaintiff over the suit premises, the plaintiff has become entitled to a decree for eviction as prayed in the suit even when the relationship of landlord and tenant could not be established by the plaintiff. 11. The scope of jurisdiction of the Court under Order 7 Rule 7 C.P.C. in an eviction suit to grant a decree to the plaintiff on the basis of his general title even when the relationship of landlord and tenant has not been established is by now well- settled. It is the defendants themselves who had raised the question of title of the plaintiff and the said question of title had been determined in favour of the plaintiff although in another suit where these defendants were also parties. Therefore, there is no scope for any surprise or prejudice to the defendants if the equitable relief under Order 7 Rule 7 C.P.C. is granted to the plaintiff. In almost similar circumstances a Bench of this Court in Smt.Kasturi Devi and others Vs. Shripal Singh and others, reported in A.I.R. 1954 Patna 128, explaining the jurisdiction of the court under Patna High Court SA No.417 of 1993 dt.09-12-2011 - 6 - Order 7 Rule 7 C.P.C. and Order 6 Rule 2 has held that: “Where in a suit by the plaintiff for ejectment of the defendant on the allegation that he is a tenant, the defendant sets up a title in himself, and the court on evidence comes to the conclusion that the story of the defendant is false and that he is a licensee, though not a tenant as alleged by the plaintiff, the Court can give the plaintiff a decree for ejectment on basis of title. The Court should not drive the plaintiff to file another suit for ejectment on the ground that the defendant was a licensee.” In a later deision in Raghubar Dayal Prasad Vs. Ramekbal Sah, reported in A.I.R. 1986 Patna 78 the same view has been reiterated by another Bench of this Court. 12. This Court is not unmindful of the fact that the suit for eviction has been filed only on the ground of personal necessity and the special procedure prescribed under section 14 of the Bihar Buildings(Lease, Rent and Eviction)Control Act, 1982 is to be applicable, whereby the practice and procedure of Provincial Small Causes Court is to be followed. But, in the present case the question of title of the plaintiff is not to be determined in the eviction suit attracting the provision of section 23 of the Provincial Small Causes Court Act. Here the title of the plaintiff over the suit property vis-à-vis the defendants has already been finally determined subsequently in a separate suit during the pendency of this appeal. The legal principle with regard to taking notice of the subsequent events has been illumined by the apex court in [Ram Kumar Barnwal Vs. Ram Lakhan] 2007(5) SCC 660 as follows: “It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date the suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the Tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. No limitation can be contemplated on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. For making the right to remedy claimed by the Patna High Court SA No.417 of 1993 dt.09-12-2011 - 7 - party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.” Thus, there is no impediment in accepting the documents relating to the judgment and decree of another suit between the parties as well as appeals therefrom and order of review finally settling the question of title, as additional evidence in this appeal as prayed for in I.A.No. 5637 of 2010 which is, accordingly, allowed and the judgments, decrees and the order annexed therewith except the copy of the plaint, are taken as additional evidence in this appeal. 13. In view of the evidence placed on record, the plea of the defendants that Ranbir Kumar Gupta, brother of the plaintiff, was still the landlord, being the owner of the suit premises, falls apart. The defendants have not claimed title unto themselves and have admitted themselves to be the tenant in the suit premises. However, as the plaintiff has failed to establish the relationship of landlord and tenant between him and the defendants, the defendants are held to be in permissive possession of the suit premises. The question of granting the relief to the plaintiff in such a case under Order 7 Rule 7 C.P.C. has been considered by this Court in Deepak Kumar Vs.R.S.Singh, reported in 1991(2)P.L.J.R 541. This Court after considering the provisions of Order 7 Rule 7 C.P.C. and section 14 of the Bihar Buildings(Lease, Rent and Eviction) Control Act, 1982 has held: “ Imparting of justice is always uppermost in the mind of the court to exercise its discretion under Order VII Rule 7 of the Code of Civil Procedure. While exercising such a discretion, court has to keep the facts of the case in its mind and to see as to whether it should exercise its jurisdiction under Order VII Rule 7 of the Code of Civil Procedure, so as to enable it to do complete justice to the parties.” 14. In view of the concurrent findings of fact by both the courts below that the plaintiff has got personal necessity of the suit house in its entirety after considering Patna High Court SA No.417 of 1993 dt.09-12-2011 - 8 - the issue of partial eviction, it is held that the plaintiff is entitled to the decree for eviction, as prayed for in the suit.The substantial question of law, as framed in this appeal is, accordingly, decided in favour of the appellant(plaintiff). 15. Thus, this appeal is allowed and the impugned judgments and decree of both the courts below are set aside. However, in the facts and circumstances of the case there will be no order as to costs. (V. Nath, J.) Patna High Court The 09th December, 2011 Roy/AFR