IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.339 of 2010 SUBHASH THAWANI, SON OF SRI R.D. THAWANI, BEING IN THE FLAT ON THE FIRST FLOOR IN KRISHNA CHOWK, ABOVE SHOP NO. 4 & 5 OF KRISHNA CHOWK, STATION ROAD, P.S. KOTWALI IN THE TOWN AND DISTRICT OF PATNA --- DEFENDANT/PETITIONER. Versus SRI RAI ATUL KRISHNA, SON OF LATE RAI ABHAY KRISHNA, RESIDENT OF MOHALLA- ANANDBAGH PATNA CITY P.S. KHAJEKALAN, DISTRICT- PATNA – PLAINTIFF/OPPOSITE PARTY. ----------- For the petitioner: M/S K.N.Choubey, Sr. Adv. With Neeraj Kumar, Sidharth Harsh, Yogendra Kr. Dwivedi, Prabhat Kr. Munna, Ashok Kumar Garg and Sanjay Ojha, Advocates. For Respondent: M/s Jashwir Singh Arora with Ajay Kumar and Ravi Bhatia, Advocates. -------- O R D E R 22/ B.P.Verma,J: The petitioner has filed the present civil revision application under section 14(8) of The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (In short “the Act”), questioning the validity and legality of the judgment and decree dated 30.05.2009 passed in Eviction Suit No. 3 of 2005 by learned Execution Munsif, Patna decreeing the suit brought by the plaintiff- opposite party herein for eviction on the ground of personal necessity in terms of section 11(1) (c) of the Act. 2. Before coming to the factual backdrop of the present case, it would be relevant to mention here that originally against the instant impugned judgment dated 30.05.2009 passed in aforesaid Eviction Suit No.3 of 2005, C.R. No. 1896 of 2009 was filed by one Krishna Bihari Ojha 2 claiming himself to be the holder of power of Attorney of present petitioner- Subhash Thawani. In that Civil Revision No. 1896 of 2009, Plaintiff Sri Rai Atul Krishna was impleaded as opposite party 1st Set and defendant Shri Subhash Thawani (the present petitioner) was impleaded as opposite party 2nd set. However, on the objection raised on behalf of the plaintiff- opposite party 1st set regarding maintainability of that civil revision application at the instance of a third person, namely, Krishna Bihari Ojha , aforesaid civil revision application was dismissed as withdrawn by order dated 17.02.2010 passed by a Bench of this Court with a liberty to file a fresh properly constituted civil revision application by the defendant- judgment debtor- Subhash Thawani (the present petitioner). 3. In the light of aforesaid order dated 17.02.2010 passed in C.R. No. 1896 of 2009, the present civil revision application was filed on 01.04.2010 by the present petitioner, who was admittedly defendant in the Eviction Suit No. 3 of 2005. In view of the fact that present civil revision application was barred by limitation, I.A. No. 3611 of 2010 was filed on behalf of the petitioner for condonation of delay of 246 days in the background set forth above, and after hearing the parties, a Bench of this Court by an order dated 28.10.2010 has allowed the aforesaid interlocutory application and has condoned the delay by a reasoned and speaking order. Thereafter, the matter was taken up and with the consent of the parties, was heard at length at the stage of admission itself for its final disposal. 3 4. The facts relevant for disposal of the present Civil revision application are indicated, in brief, hereinafter. The plaintiff- opposite party herein, claiming himself to be the landlord, brought Eviction Suit No. 3 of 2005 in the Court of learned Munsif-3, Patna seeking a decree for eviction against sole defendant-petitioner herein with respect to suit premises. The suit premise is entire first floor flat having an area of 800 Sq. feet bearing holding No. 489(old), corresponding to present holding No. 1665/878 above shop no. 4 and 5, situate at Krishna Chowk, Station Road, P.S. Kotwali in the town and District of Patna, and has been detailed in schedule-1 of the plaint. It was claimed that defendant was inducted as the tenant on the oral lease, which ultimately expired on the last day of March, 1992. Thereafter, on the request of the defendant, a fresh oral lease with possession was created w.e.f. 01.04.1992 till 31.03.1993, i.e. for 12 months at the monthly rental of Rs. 2100/-. After March, 1993, though lease has not been extended, but the defendant remained in occupation of the suit premises as the tenant. 5. It is the specific case of the plaintiff- opposite party herein that he has no other house of his own for living, and at present he is residing in a house inherited by his mother, situate at Patna City, which is far away from the offices of the plaintiff and his wife, where they are working. It has also been pleaded that two minor daughters and one son of the plaintiff are pursuing their studies in the schools situate at western part of Patna, which are far away from 4 Patna City, but at a short distance from suit premises. Children are facing great difficulty in going to the schools in the morning hours and returning to their house in the day, when invariably traffic “Jam” occurs in the Patna City. On these grounds, reasonably and in good faith for his own occupation and for the occupation of his wife and three children, he sought eviction of the defendant- petitioner herein from the suit premises in terms of section 11 (1) (C) of the Act. 6. The sole defendant- petitioner herein, after obtaining leave to contest the suit in terms of section 14(5) of the Act, filed his written statement challenging the maintainability of the suit on various grounds and prayed for its dismissal. However, in paragraph-11 of the written statement it was clearly stated that Shri Rupchand Daulat Ram, the father of the defendant, had taken shop no.4 on rent in the year 1948 from late Rai Abhay Krishna, the father of the plaintiff on monthly rent, which continued till 1990. The first floor of said building was constructed in the year 1986 by the father of the plaintiff. When aforesaid shop no. 4 was sold to one Sri Tilak Raj Gandhi, then defendant was inducted in the suit premises by the father of the plaintiff on a rent @ Rs. 1100/- per month. It has been claimed by the defendant that there was verbal commitment by the father of the plaintiff to sell the suit premises to defendant for Rs. 2 lakhs, and till the entire amount is paid by defendant, he shall remain as tenant. The defendant claims to have paid the entire amount of Rs. 2,00,000/-( Rs. Two lakhs). 5 Thereafter he claims to have become the owner of the suit premises and also claims to have continued in possession in that capacity since January, 1993 and relationship of landlord and tenant ceased to exist thereafter. It was further pleaded that since the defendant is in occupation over the suit premises since 1993 as the owner and more than 12 years have elapsed since then, he acquired the right and title on the basis of principles of adverse possession. 7. Both parties have produced their oral and documentary evidence in support of their respective claims. From the side of plaintiff four witnesses including the plaintiff himself were examined, whereas from the side of defendant, seven witnesses have been examined, but the defendant has chosen not to examine himself as a witness. On consideration of all the materials, learned trial court has decreed the suit and directed the defendant to vacate the suit premises and hand over the vacant possession of the same to the plaintiff within two months from the date of the judgment. 8. Mr. K. N. Choudhary, learned Senior Counsel appearing on behalf of the petitioner, in his elaborate submissions, has questioned the validity and legality of the impugned judgment and decree primarily on following three grounds: (i) In view of controversy about relationship of landlord and tenant between the parties, the learned trial court was required to frame an issue regarding relationship of landlord and tenant and that having been not done, the impugned judgment is fit to be 6 set aside. (ii) While passing the impugned judgment, learned court below was obliged to consider as to whether a partial eviction would satisfy the need of personal necessity of the landlord. (iii) Learned trial court, while hearing the suit under section 14 of the Act, was required to follow the practice and procedure of a court of Small Causes and, therefore, he could not have gone into the question of title or adverse possession raised on behalf of the defendant- petitioner in the instant suit. 9. In support of the aforesaid contention, Mr. Choubey, learned Senior counsel for the petitioner, has placed reliance on certain judgments of this Court as also the Apex Court, which shall be dealt with appropriately at appropriate place. 10. Mr. J.S. Arora, learned counsel appearing on behalf of the sole opposite party- landlord, in his elaborate submissions, has fully supported the impugned judgment and decree passed by learned trial court and has prayed for dismissal of the present civil revision application. According to Mr. Arora, learned counsel, the original tenancy having been admitted by the defendant in his written statement and plea of adverse possession having not been accepted by the learned trial court, the relationship of landlord and tenant between the plaintiff and defendant would be deemed to have 7 been admitted. He further submits that the dispute regarding relationship of landlord and tenant between the plaintiff and defendant is not based on the basis of any valid documentary evidence. Further, the plea of ownership since January, 1993 on the basis of oral agreement, and plea of acquiring right, title and interest on the basis of adverse possession, are contradictory to each other. He next submitted that question of partial eviction has been gone into and considered by the learned trial court in details in paragraph-15 of the impugned judgment and learned trial court has come to a finding that partial eviction will not satisfy the personal requirement of the plaintiff and, therefore, there has been full compliance of section 11(1) (C) proviso of the Act. He has also placed reliance on various judgments of this Court as also the Apex Court in support of his aforesaid contentions, and for supporting the impugned order/judgment passed by the learned trial court. 11. After having heard the parties at length and on consideration of the materials available on record, this Court finds that defendant-petitioner herein has admitted the origin of tenancy between his father and father of plaintiff since 1948 with respect to shop no.4, admittedly belonging to the father of the plaintiff. The suit premises is the entire first floor situate over the aforesaid shop no.4 said to have been constructed in the year 1986. The defendant has also admitted that when shop no. 4 was sold to one Tilak Raj Gandhi in the year 1990, then he was inducted as a tenant on rent in the suit premises @ Rs. 1100/- per month and 8 thereafter he continued there in that capacity. The petitioner claims to have entered into an oral agreement with the father of the plaintiff for purchase of suit premises for Rs. 2 lacs and claims to have paid the aforesaid amount till December, 1992 and claims to have become owner of the suit premises since January, 1993, but not a chit of paper has been produced either regarding agreement to sell or regarding payment of consideration money. 12. This Court further finds that possession of the defendant-petitioner over the suit premises is permissive possession and not on the basis of adverse possession. Even if the defendant has been in continuous possession for more than 12 years, then in that case also it would not constitute an adverse possession, as in the present case it was apparently a permissive possession of the defendant over the suit premises. The claim of title on the basis of oral agreement on payment of Rs. 2 lakhs in cash till December 1992 appears to be palpably false and not acceptable. Section 54 of The Transfer of Property Act, 1882 mandates that transfer of tangible immovable property of the value of Rs. 100/- and upwards has to be made only by a registered instrument. Section 17 of The Registration Act, 1908 mandates that if right, title and interest is transferred by a non-testamentary instrument with respect to an immovable property of the value of Rs. 100/- or upwards, then that has to be registered one. In the present case the petitioner claims to have acquired his right and title over the suit premises by paying an amount of Rs. 2 lacs, but neither the mandate of 9 section 54 of The Transfer of Property Act, 1882 nor the mandate of Section 17 of The Registration Act, 1908 has been complied with. It is apparent that for the sake of disputing relationship of landlord and tenant between the plaintiff and the defendant, such a plea was taken by the defendant- tenant and has rightly been rejected by the learned trial court. There appears to be no semblance of right or title of the defendant over the suit premises. Hence, Section 23 of The Provincial Small Cause Courts Act, 1887, as submitted on behalf of the petitioner, has absolutely no application in the present case. 13. The plea of title on the basis of oral agreement and alleged payment of price, and plea of acquiring title on the basis of adverse possession are self contradictory and cannot be accepted. The Apex Court in the case of L.A. Aswathama Vs. P. Prakash, reported in 2009 (4) PLJR (SC) 111 has held that pleas based on title and adverse possession are mutually inconsistent. Paragraph 17 of that judgment would be relevant and is reproduced herein below: “17.- The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it 10 was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.” 14. A Bench of this Court in the case of Deepak Kumar Verma & Ors. vs. Ram Swarup Singh, reported in 1991(2) PLJR 541 has held that in a suit for eviction on the ground of personal necessity under section 11 of the Act, if complicated question of title is raised, then that should not been decided in a proceeding under Section 14 of the Act. Ratio laid down in that case is not applicable in the present case. As a matter of fact, question of title raised on behalf of the defendant- petitioner herein on the basis of oral agreement is not at all believable for the reasons recorded above. What to talk of a complicated question of title between the parties, there is no semblance of title at all with the defendant- petitioner with respect to suit premises. 15. The Apex Court in the case of Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra( dead) through L.Rs. , reported in 2005(1) PLJR (SC) 70 has observed in paragraph-13 that agreement to sell does not create any interest of the proposed vendee in the suit property. The title in an immovable property valued at more than Rs. 100/- can 11 be conveyed only by executing a registered sale deed. Applying the aforesaid principle, this Court finds that apparently the defendant has not acquired any interest with respect to suit premises on the basis of alleged oral agreement. Admittedly no deed of transfer has either been produced by the defendant or was ever executed by the father of the plaintiff in favour of the defendant. 16. The question raised on behalf of the petitioner regarding non-consideration of the issue of partial eviction and thereby non-compliance of mandate of Section 11(1) (C) proviso of the Act seems to be completely misconceived. In paragraph-15 of the impugned judgment learned trial court has considered that issue at length and has come to a finding that partial eviction would not satisfy the needs of the plaintiff of his personal occupation of the entire suit premises. 17. On the ground of equity also the petitioner has failed to make out a case at all for interference with the impugned judgment and decree of the learned court below. From the materials available on record this Court finds that defendant has admitted on oath that for the last several years he is not living in Patna rather he is living in Gujrat. He claims to have given a power of attorney to one Krishna Bihari OJha for running his business. Admittedly, aforesaid Krishna Bihari Ojha is not at all directly related or family member of defendant- petitioner. If at all the aforesaid Krishna Bihari Ojha is running a business in the suit premises, then that would be violation of the terms and 12 conditions of the tenancy. 18. For the reasons recorded above, this Court does not find any legal infirmity or material irregularity with the impugned judgment and decree passed by the learned court below. In exercise of powers under section 14(8) of the Act, there is no scope for interference with the impugned judgment and decree passed by the learned court below directing eviction of the defendant- petitioner herein from the suit premises. 19. Consequently, the civil revision application has to fail. It is, accordingly, dismissed. No costs. PATNA HIGH COURT Dated the 29th June, 2011 BTiwary/ A.F.R. ( Birendra Prasad Verma, J.)