APPEAL FROM APPELLATE DECREE NO. 103 OF 2006 ------- Against the judgment and decree dated 04.02.2006 passed in Eviction Appeal No.40 of 2002 (2/2005) by Shri Sunil Kumar Panwar, Ist Additional District Judge, Sitamarhi reversing the judgment and decree dated 17.09.2002 passed in Eviction Suit No.10 of 1994 by Shri Rudra Pratap Singh, Sub-Judge-III, Sitamarhi ------ Sushil Kumar Parsuram Puria, son of late Puranmal Parsuram Puria Resident of Sitamarhi Mohalla Sita Ram Chowk, Ward No. 8, P.S. and District Sitamarhi at present Gudari Bazar, Sitamarhi Ward No.11, P.S. & District Sitamarhi. …..Defendant-Respondent-Appellant versus Smt. Shanti Devi, wife of Sri Bishwanath Prasad Parsuram Puria, Resident of Mohalla- Gudari Road, Sitamarhi, Ward No.11, P.S. and District Sitamarhi. ….Plaintiff-Appellant-Appellant --------- For the Appellant : M/s Shashi Shekhar Dwivedi, Sr. Advocate & Pramod Kumar Thakur, Advocate For the Respondent: M/s Ganesh Prasad Singh, Sr. Advocate, V. Nath and Ashok Kumar, Advocates & Mrs Seema Singh, Advocate. -------- 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-respondent- appellant against the judgment and decree of the learned court of appeal below, by which the judgment and decree of the trial court was reversed. 2. The matter arises out of Eviction Suit No. 10 of 1994, which was filed by the sole plaintiff-respondent for eviction of the sole defendant- appellant on the ground of default in payment of rent as well as breach in terms of tendency by the defendant and bona fide personal requirement of the plaintiff 2 as well as for arrears of rent and other ancillary reliefs. 3. The defendant appeared in the suit and contested the claim of the plaintiff. Hence on the basis of the pleadings of the parties, following issues were framed by the learned trial court :- (i) Is the suit as framed maintainable ? (ii)Whether the plaintiff has got any cause of action or right to sue ? (iii)Is the suit barred by law of limitation, waiver, estoppel and acquiescence ? (iv)Is there any relationship of landlord and tenant between the plaintiff and defendant existed in respect of disputed premises ? (v)Is the defendant defaulter in payment of rent in respect of disputed premises ? (vi)Has the plaintiff got personal interest for the suit premises? (vii)Is the plaintiff entitled for any relief or reliefs as claimed? 4. With respect to the aforesaid issues, 19 witnesses deposed on behalf of the plaintiff, who also produced Exts. 1 to 17 series. On the other hand, 12 witnesses deposed on behalf of the defendant, who produced Exts. `A’ to `O’ series in support of his pleadings. 5. Considering the pleadings and evidence of the parties, the trial court, namely, the learned Subordinate Judge-III, Sitamarhi dismissed the suit vide judgment and decree dated 17.09.2002 after arriving at the following findings :- (a) The plaintiff has not been able to prove relationship of landlord and tenant between the parties, whereas, the defendant has been able to prove that his family used to live in the suit house from much before 01.08.1989 when according to the plaintiff the tenancy had started. Hence relationship of landlord and tenant 3 does not exist between the parties. (b) The issue of personal necessity has not been pressed by the plaintiff nor any evidence has been produced in this regard. (c) Defendant is not defaulter in payment of rent with respect to the suit premises ? (d) Defence of the defendant was struck off but it becomes inoperative in view of the finding of absence of any relationship of landlord and tenant between the parties ? (e) Complicated question of title is required to be decided between the parties, for which they are already litigating as both the parties have common ancestors ? 6. Against the aforesaid judgment and decree of the trial court, the plaintiff filed Eviction Appeal no. 40 of 2002 (02/2005), in which the defendant appeared and contested and on the basis of the pleadings of the parties following points were framed for deciding the title appeal :- (i) Is there any relationship of landlord and tenant between the plaintiff and the defendant with respect to the suit premises ? (ii) Is the defendant defaulter in payment of rent in respect of the disputed premises ? (iii) Has the plaintiff got personal necessity for the suit premises ? 7. After considering the pleadings and evidence of parties, the lower appellate court, namely, the learned Additional District Judge-I, Sitamarhi, vide his judgment and decree dated 04.02.2006, allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit with costs after arriving at the following findings :- (a) The registered deed of partition dated 01.11.1950 (Ext. M) has got no importance as neither it was acted upon nor in the partition deed the suit property was shown in joint family nor 4 the same was partitioned and hence no one except Ram Pyari Devi had any concern with the said property. (b) The defendant’s claim of oral gift and possession in 1962 or 1967 and the story of establishing the Ink Workshop in 1970 or 1968 are falsified by evidence. (c) Ext.`A’ series, Ext.`B’, Ext. `C’, Ext. `F/1’ and Ext.`F/2’ are not in any way related with the suit property. (d) The court is also bound to see whether the denial of title and relationship of landlord and tenant by the defendant is genuine or is mere pretence to frustrate the claim of the plaintiff-landlord. . (e) The defendant had failed to prove by any valid material that he was the owner of the suit property and the plaintiff was his tenant, hence story of tenancy set up by the defendant against the plaintiff is falsified by his own acts and evidence. (f) There is no allegation that the plaintiff is trespasser or squatter, hence it is quite apparent that the plaintiff is the owner of the suit properties on the basis of deed of gift dated 06.09.1983 (Ext. 3). (g) The suit property was the self-acquired property of Ram Pyari Devi and she being rightful owner had full right to gift the same to the plaintiff. (h) The plaintiff had proved by reliable evidence, namely, depositions of P.Ws. 3,4,5,12,13 & 14, that the defendant was her tenant, but the defendant has failed to adduce any such 5 evidence on the point of tenancy, except himself as D.W.10. (i) The plaintiff has fully proved the relationship of landlord and tenant between the parties and hence the defendant was merely a tenant of the plaintiff (j) The defendant has defaulted in payment of rent in respect of the disputed premises. (k) Plaintiff-appellant has got personal necessity for the suit premises. (l) Plaintiff has cause of action for the suit, which is, thus, maintainable . 8. Against the aforesaid judgment and decree of the learned court of appeal below, the defendant has filed the instant second appeal, which was admitted by this Court on 12.11.2008 after framing the following substantial questions of law :- (i) Whether the learned court of appeal below while reversing the judgment and decree of the trial court was justified in ignoring the documentary evidence of the defendant, namely, Exts.`A’ to `N’, which clearly show that the defendant was in possession of the suit premises in his own right from much before 1989 being a co-sharer of the ancestral property ? (ii) Whether the learned lower appellate court was justified in assuming relationship of landlord and tenant between the parties only on the basis of the depositions of three witnesses, namely, P.Ws. 12, 13 and 14, who, admittedly being the tenants of the plaintiff, were interested persons and their statements were falsified by the evidence of the defendant and also by non-production of any other oral or documentary evidence in that regard ? (iii) Whether the learned lower appellate court while deciding an eviction appeal under the provision of Bihar Buildings (Lease, Rent & Eviction ) Control Act, 1982 had the jurisdiction to decide the validity or otherwise of the deed of gift and the respective title of the parties ? 6 9. Apart from pressing the aforesaid substantial questions of law, learned counsel for the defendant-appellant also argued that neither any paper of tenancy nor any rent receipt has been filed by the plaintiff in support of the tenancy from 1989 as alleged by the plaintiff, whereas, the defendant has been able to prove by valid evidence that he is living in the suit premises since much before 1989 in his own right on the basis of oral gift on the occasion of Muhdekhai to his wife by the person, who got the said property vide registered deed of partition dated 01.11.1950 (Ext. `M’). 10. So far the first question raised by the appellant is concerned, it was argued by the defendant-appellant that Ext. `A’ to Ext. `N’ clearly showed that the defendant was in possession of the suit premises in his own right from much before 1989, but it was ignored by the learned court of appeal below while reversing the judgment and decree of the trial court. In this connection, the impugned judgment of the learned court of appeal below was perused and it was found that Ext. `G’ and Ext. `K’ were duly considered in paragraph nos. 8 and 9 of the said judgment, whereas, Ext. `M’ was fully considered in paragraph no.10 thereof. Furthermore, Ext s. `F’ series were fully considered in paragraphs 11 and 12; Exts. `A’ series, `B’, `C’ and `F’ were considered in paragraphs 12 and 13 of the said judgment. In the said circumstances, it is quite apparent that Exts. `A’ series, `B’, `C’, `E’, `F’ series, `G’, `K’ and `M’ produced by the defendant were fully dealt with giving their exhibit numbers in the aforementioned paragraph nos. 8 to 14 of the impugned judgment of the learned court of appeal below. 11. It is also apparent from the said judgment that Ext. `D’ was the written statement of Title Suit No. 112 of 1990; Exts. `H’ and `H/1’ were 7 certified copies of electoral list; Ext. `I’ was the original sale-deed executed by Maulvi Baduddul Haque in favour of Smt. Ram Pyari Devi; Exts. `J’ & `J/1’ were certified copies of orders passed in Title Suit No. 135 of 1993, Exts. `L’ and ` L/1’ were certified copies of the Demand Register, whereas, Ext. `N’ was the certified copy of order passed in Misc. Case No. 03 of 2002. Although the numbers of the said exhibits have not been mentioned in the impugned judgment, but the learned court of appeal below fully considered those documents while deciding the relevant issues as `Ext. D’ had been considered in paragraph no.9; Ext. `H’ series had been considered in paragraph no.14; Ext. `I’ had been considered in paragraph no.10; Exts. `J’ series had been considered in paragraph nos. 8 and 14; Ext. `L’ series had been considered in paragraph no.13 and Ext. `N’ had been considered in paragraph no. 14 of the judgment of the learned court of appeal below. From a reading of the aforesaid paragraphs, it is quite apparent that the learned court of appeal below has arrived at its various findings only after considering all the evidence on record including the aforesaid exhibits produced on behalf of the defendant and hence no such illegality as raised by the appellant exists in the impugned judgment of the learned court of appeal below. 12. From the aforesaid facts and circumstances as well as from the perusal of the judgments of the learned court below, it is quite apparent that the learned court of appeal below, after considering the pleadings of the parties as well as the entire evidence on record including the evidence of the defendant, rightly came to the incidental conclusion that the plaintiff has been able to prove and the defendant has failed to validly counter the said claim that the disputed property was the self-acquired property of Ram Pyari Devi, who had 8 full right to gift the same to the plaintiff as self-acquired property of a female Hindu, which cannot be blended with the joint family property. On the basis of the evidence adduced by both the parties, the learned court of appeal below also came to the conclusion that there was relationship of landlord and tenant between the parties as the plaintiff was the landlord of the defendant, who was merely a tenant of the suit premises. In this regard, it may be noted that the defendant had filed and raised his counter claim in the trial court that he was the owner of the landlord and the plaintiff was his tenant, but the said plea was rejected by the learned trial court vide its judgment and decree dated 17.09.2002. However, the defendant did not challenge the said finding of the trial court in any title appeal nor did he file any cross appeal in the title appeal filed by the plaintiff with respect thereto. In the circumstances, the defendant cannot legally raise any such claim at this stage. 13. So far the second question raised by the appellant is concerned, no doubt P.Ws. 12, 13 and 14 were the tenants of the plaintiff as admitted by the defendant but this goes against the claim of the defendant and proves that the entire property belonged to the plaintiff, who had several tenants including the defendant as well as P.Ws. 12, 13 and 14. Furthermore, the learned court of appeal below did not rely only on the depositions of the aforesaid witnesses, rather it also considered the other witnesses of the plaintiff, namely, P.Ws. 3,4,5,7 and 15 in paragraph no.17 of its judgment. On the other hand, the defendant could not produce any witness in denial of the relationship of landlord and tenant between the parties, except D.W.10, who was none else than the defendant himself. In the said circumstances, the learned court of appeal below was quite justified in coming to the conclusion that the plaintiff 9 was the landlord of the defendant on the basis of the above mentioned evidence. 14. So far the third question raised by the plaintiff is concerned, the learned court of appeal below has not decided the validity or otherwise of the oral gift claimed by the defendant, rather it had only found that the orders in Title Suit No. 112 of 1990 and Title Suit No. 135 of 1993 as well as the compromise of 1994 filed in Title Suit No. 135 of 1993 did not speak about any oral gift for Muhdekhai. The learned lower appellate court also found that the registered deed of partition dated 01.11.1950 (Ext. `M’) did not show that the suit land was thrown into joint family property by Ram Pyari Devi nor it was recited that the land in question was purchased by the joint family fund, rather it was specifically mentioned therein that the suit land was the khas purchased land of Mostt. Ram Pyari Devi. It was also found from the evidence on record that the land acquired by Ram Pyari Devi by registered deed of gift was throughout treated by her as well as others to be her own property and hence the aforesaid registered partition of 1950 was never acted upon and the same remained in the ownership and possession of Mostt. Ram Pyari Devi only till the transfer was made by her in favour of the plaintiff. 15. The learned court of appeal below rightly arrived at the legal conclusion that the self acquired property of a female Hindu cannot be blended with the joint family property for any partition. In this connection, the learned court of appeal below rightly relied upon a decision of the Hon’ble Apex Court as well as a decision of the Bombay High Court in case of Mallesappa Bandeppa Desai and another vrs. Mallesappa and another, reported in A.I.R. 1961 S.C. 1268 as well as in case of Vasant Dattatraya Bopardikar vs. Sakharan Dattatraya Bopardikar and others, reported in A.I.R. 1983 Bombay 495. In the 10 said circumstances, the learned court of appeal below has only observed that the claim made by the defendant with regard to oral gift in the name of his wife was merely a self serving statement without being supported by any valid and reliable material. Hence, it is quite apparent that the said claim of the defendant with regard to title was incidentally considered and rejected by the learned trial court and the learned court of appeal below, both of which found the said claim not supported by any evidence or provision of law. 16. Furthermore, the defence of the defendant against his ejectment was struck off by the trial court itself due to non-compliance of specific direction of the trial court as has been clearly mentioned in paragraph nmo.11 of the trial court judgment. In the said circumstances, the defendant cannot legally contest the claim of the plaintiff with regard to her personal necessity as well as the default in payment of rent by the defendant, which was fully proved by the plaintiff, whereas, there was nothing on record on behalf of the defendant to disprove the same. Hence, the learned court of appeal below was quite justified in arriving at specific findings that the plaintiff had bona fide personal requirement of the suit premises and the defendant was defaulter in payment of rent with respect to the suit premises for several months. 17. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment of the learned court of appeal below nor does it find questions raised by the appellant to be valid and substantial questions of law. Accordingly, this second appeal is dismissed. Patna High Court March 4th, 2010 A.F.R. MPS/ ( S. N. Hussain, J. ) 11