IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2114 of 2009 1. Bankey Lal, son of Late Lekhraj Mahto, resident of village – Sewani, P.S. Bakhtiyarpur, District Patna, at present Bakhtiyarpur, District - Patna 2. M/S Arun Kumar Ashok Kumar, situated at Bakhtiyarpur Bazar, P.O. and P.S. Bakhtiyarpur, District Patna …….. Defendants – Petitioners Versus Ramanand Gupta, Son of Late Ram Prasad Lal Gupta, Resident of Bakhtiyarpur, P.O. and P.S. Bakhtiyarpur, District – Patna …. Plaintiff .. Opposite Party ----------- For the Petitioners : M/s S.S. Dwivedi, Sr. Advocate Vidya Sagar & S.K.Ranjan, Advocates For the Opp. Party : M/s Sukumar Sinha, Sr. Advocate, Abinash Kumar, Advocate ------- 12 16.03.2011 This Civil Revision is directed against the judgment and order dated 9.10.2009, passed by the Additional Munsif I, Barh in Eviction Suit No. 6 of 1998, whereby the defendants – petitioners have been directed to vacate the suit premises and handover the vacant possession of the same to the plaintiff – opposite party within two months. Bereft of details, short facts necessary for 2 consideration of the controversy in issue are as under: Plaintiff – opposite party claims to be the owner and the landlord of the suit premises fully described in the Schedule to the plaint. It is the case of the plaintiff that the premises concerned was purchased by his father, namely Ram Prasad Lal Gupta in the name of his brother-in-law Pasupati Nath Sah and had inducted the defendants as tenant under the stipulated terms of contract of the tenancy for the purposes of carrying out the business of his firm in the name and style as M/s Arun Kumar, Ashok Kumar and as the holding was purchased in the name of Pashupati Nath Sah and the deed of lease was executed on 3.3.1969 in his signature on the monthly rent of Rs. 81/- and accordingly rent was being realised and rent receipts were also issued. The stipulated period of tenancy was for 5 years but on mutual agreement it was extended time to time. Further case of the plaintiff is that after the death of his father in the year 1989 and also the death of Pasupati Nath Sah, the plaintiff and the sons of 3 legal representatives of Pasupati Nath Sah have entered into compromise in Title Suit No. 76 of 1997 and according to the compromise decree title of the premises in question was declared in favour of the plaintiff and the other sons of Ram Prasad Lal Gupta. It has further been claimed that after the death of Ram Prasad Lal Gupta, the plaintiff realized rent of Rs. 81/- per month from the defendant till 24.06.1991 and thereafter the rent was enhanced on 25.6.1991 from Rs. 81 to Rs. 151/- per month which was being paid by the defendants till Chaitra 1996. But from Baisakh 1996 the defendants withheld the monthly rent despite demand. Further case of the plaintiff is that after retirement from his service on 31.12.1997, he was sitting idle and, thus, required the suit premises for carrying out his own business of grocery shop reasonably in good faith. Thus, he made several requests to the defendants for vacating the suit premises. However, since they declined, the eviction suit has been filed only on the ground of bonafide personal necessity reserving the right to file a 4 separate suit for realisation of arrears of rent. The suit has been filed against the defendant no. 1 Bankey Lal and defendant no. 2, which is the firm in the name and style of Arun Kumar Ashok Kumar. Defendant no. 1 Bankey Lal appeared for himself and also as proprietor of the defendant no. 2 and filed a joint written statement. According to the defendants, after the purchase by a sale deed in the year 1951 by Pasupati Nath Sah from Ram Prasad Lal Gupta, i.e., the plaintiff’s father through a registered sale deed dated 2.5.1951/4.5.1951 for valuable consideration, Pasupati Nath Sah became the absolute title holder and in fact he had inducted the defendant as a tenant on monthly rent by executing deed of agreement (kirayanama). It is further contended that on the basis of the aforesaid sale deed, for declaration that the transferee had acquired valid right, title through it, a T.S. No. 29 of 1966 was filed. In that suit the father of the plaintiff was impleaded as one of the defendants and he had filed written statement accepting the transaction. Though the suit was 5 dismissed on the ground of limitation but the finding had been recorded that the sale deed was a valid document and not a sham transaction. Thus, it is the claim of the defendant that neither the plaintiff nor his father was his landlord. It is also claimed that late Pasupati Nath Sah had entered into an agreement for sale of the premises to him on 24.1.1996 since he was a need of money. Agreement was entered upon on part payment of Rs. 51,000/- out of the total consideration amount of Rs. 1,51,000/- Thus, it is claimed that on that basis the defendants ceased to be a tenant and rather became landlord. Though sale deed was to be executed till 23.1.1999 after receiving the rest consideration money of rupees one lac and despite the fact that the defendant no. 1 was all along ready to perform his part of the contract and had several times requested Pasupati Nath Sah and after his death to his legal heirs for the execution of the sale deed, they failed to oblige. Therefore, Title Suit No. 2 of 1999 was filed before the Special Judge I, Barh against the legal heirs of Late Pasupati Nath Sah for 6 specific performance of contract. Thus, it is contended that plaintiff has no right to demand rent for the suit premises even by virtue of the alleged compromise in Title Suit No. 76 of 1997. So far the statement made in paragraph no. 2 of the plaint is concerned, it has been denied in the written statement on the pretext that question of Benami purchase cannot be raised in view of the provisions contained in Benami Transaction (Prohibition) Act, 1988. It is contended that the Title Suit No. 76 of 1997 is frivolous creation and woven out of the litigating brain of the plaintiff and the compromise petition is forged and fabricated piece of paper, thus, the said compromise cannot confer any right, title and interest upon the plaintiff and would not be binding upon the defendants as the defendants were not party to the same. It has also been contended that even the landlord of the defendants cannot claim any rent or eviction as his right also ceased on the date of agreement for sale dated 24.1.1996. Thus, there is no question of any landlord and tenant between the plaintiff and 7 the defendants. On the basis of pleadings of the parties the trial court formulated seven issues, which are reproduced as under: (I) Whether the suit as framed and filed is maintainable? (II) Whether the plaintiff has got any valid cause of action to sue? (III) Whether there is relationship of landlord and tenant in between the plaintiff and the defendants? (IV) Whether the plaintiff requires the suit premises bonafidely and reasonably for his personal necessity? (V) Whether partial eviction of the defendants from the suit premises will satisfy the requirement of the plaintiff? (VI) Whether the suit is properly 8 valued and court fee paid thereon is sufficient? (VII) To what other relief or reliefs the plaintiff is entitled. Altogether seven witnesses were examined on behalf of the plaintiff and some documents have brought on record as evidence. The defendants altogether examined 11 witnesses and they have also brought certain documents as evidence. The trial court, upon consideration and appreciation of materials on record including pleadings and evidence led on behalf of the parties has come to the conclusion that there is a relationship of landlord and tenant between the parties as the plaintiff has got right, title over the suit premises by virtue of the compromise decree passed in Title Suit No. 76 of 1997 by holding the pre-existing right of the plaintiff and others on the basis of joint petition of compromise filed on behalf of the parties including the legal heirs of Late Pasupati Nath Sah. The defendants, since have 9 admitted to be the tenant of Pasupati Nath Sah, thus, after the aforesaid compromise the plaintiff Ramanand Gupta and others had already entered into the shoes of his landlord. The trial court has also come to the conclusion that plaintiff bonafide requires suit premises for his personal need as he wants to carry out business by opening a grocery shop for earning his livelihood. The issue of partial eviction has also been dealt with by the trial court under Issue No. 5 and after consideration of material on record it has come to the conclusion that no purpose would be served by the partial eviction of the tenant. Therefore, the suit has been decreed in favour of the plaintiff. I have heard the parties and perused the records of the case. Learned counsel appearing on behalf of the petitioners submitted that the claim of the plaintiff in paragraph no. 2 that his father has purchased the suit premises in the name of his brother-in-law is not tenable for two counts. Firstly, that a plea of Benami purchase, after coming into 10 force of the Benami Transaction (Prohibition) Act, 1988, cannot be allowed to be taken and secondly, for the reason that, since by the sale deed of the year 1951, father of the plaintiff, namely, Ram Prasad Lal Gupta himself had sold the premises in favour of Pasupati Nath Sah and Purshotam Nath Gupta, thus, it would be ridiculous averments that Ram Prasad Lal Gupta himself had sold his property to himself. The second contention raised on behalf of the petitioner is that after the purchase by the aforesaid sale deed dated 2.5.51/4.5.51, aforesaid Pasupati Nath Sah and Paras Nath Sah had filed Title Suit No. 29 of 1966 in the Court of Additional Sub Judge, Barh for declaration that he had acquired valid right, title and interest by virtue of the same. In that suit father of the plaintiff, v.i.z. Ram Prasad Lal Gupta was also one of the defendants and had filed his written statement accepting the transaction. Though the suit was dismissed on the ground of limitation but Court concerned has recorded a finding that the concerned transaction is valid and not sham and 11 forged one. In that view of the matter, it has been urged that Pasupati Nath Sah acquired the title and inducted the defendants as tenant and, thus, the plaintiff cannot claim himself to be the landlord. Further submission is that in view of the earlier decision Title Suit No. 29 of 1966, the subsequent suit bearing Title Suit No. 76 of 1997 in which the alleged compromise decree had been passed would be barred by the principle of res judicata. Thus, the decree being a nullity would not confer any title upon the plaintiff. It is next contended that from the averments made in paragraph no. 5 of the joint compromise petition filed in the aforesaid Title Suit No. 76 of 1997, it is apparent that the adequate price of the property has been received by the defendants. As the price of the suit property has been received by the defendants therein the same would amount to transfer of the property after receiving consideration money, thus, the compromise decree, was required to be compulsorily registered in terms of the provisions contained in Section 17 of the Registration Act, 12 1908. It is contended that otherwise also in view of the above, since the matter was not compromised in terms of any pre-existing right of the plaintiff rather for consideration, the decree was required to be registered in terms of Section 17(2) (vi) of the Registration Act, 1908. In support of his aforesaid contention learned counsel has placed reliance upon a decision of the Apex Court rendered in Bhoop Singh v. Ram Singh Major (AIR 1996 SC 196). It has been urged that in view of the law laid down by the Supreme Court in the aforesaid case since it was compulsorily to get the compromise decree registered and in view of the admitted position that the same has not been done, that would be not admissible in evidence. However, it has also been pointed out that the decree has not been brought on record but only the joint petition of compromise and the order of the concerned court accepting the compromise has been brought on record as Exts. 8 and 7 respectively. Learned counsel had next contended that his landlord, namely Ram Prasad Lal Gupta was in need of money and, therefore, he 13 approached the defendants – petitioners for transfer of the suit premises in his favour. They agreed for the same upon payment of consideration money of Rs. 1,51,000/-. Out of the aforesaid Rs. 51,000/- was paid as advance and a deed of agreement for sale was executed on 24.1.1996. Upon execution of such deed of agreement for sale upon part payment of consideration money the relationship of landlord and tenant ceased to exist and, thus, the petitioners stopped paying rent as they remained in possession as purchaser. However, subsequently, despite petitioners being ready to perform his part the contract, Pasupati Nath Sah did not execute the sale deed as promised due to his serious illness and died. His legal representatives also did not execute the sale deed compelling the defendants – petitioners to file Title Suit No. 2 of 1999 in the Court of Sub Judge, Barh for grant of a decree of specific performance of contract which is still pending. It is further contended that the plaintiff – opposite party could not prove either his title or the bonafide requirement of the suit premises by 14 leading cogent and unimpeachable evidence, thus, the suit was bound to fail. It is also submitted that after a decision in the Title Suit No. 29 of 1966 noticing the admission of the father of the plaintiff in his written statement regarding sale of the suit premises in favour of Pasupati Nath Sah and another by filing of the subsequent Suit bearing Title Suit No. 76 of 1997 and getting a compromise decree without impleading the daughters of Pasupati Nath Sah, a fraud has been played and, thus, the decree obtained fraudulently would be a nullity and should be avoided by all courts of law including this Court. In support of his submission, learned counsel placed reliance upon the decision of the Apex Court rendered in Prestige Lights Ltd. V. State Bank of India (2007) 8 Supreme Court Cases 449). Thus, according to the defendants, since the plaintiff has miserably failed to prove that he is the owner having right against whole world to occupy the building as required as per the decision of the Apex Court rendered in AIR 1981 SC 1113 (M.M. Quasim v. Manohar Lal Sharma 15 and others), his suit was bound to fail. Learned counsel appearing for the plaintiff – opposite party, on the other hand, submitted that the father of petitioner was engaged in a business and considerable amount of Sale Tax Department was due upon him. For realization of the said amount a Certificate Case was filed by the State of Bihar. Therefore, father of the plaintiff sold the holding to the maternal uncles of the plaintiff for evading from the Certificate Case. Thus, the sale was sham, showy and without consideration. It is further contended that since the suit has been dismissed after holding the same to be time barred, the findings recorded therein would not operate as res judicata in the next suit. It is, thus, also contended that father of the plaintiff and thereafter the plaintiff remained as the landlord of the premises. However, after the death of his father and Pasupati Nath Sah, Title Suit No. 76 of 1997 was filed and the parties have brought the controversy at rest by filing a joint petition of 16 compromise accepting right, title and interest of the plaintiff and accordingly order accepting compromise was passed and a decree was prepared. On the basis of such compromise, the plaintiff became the landlord and entitled to realize the rent. For some period rent had been paid by the defendants but subsequently they stopped payment. They also failed to vacate the premises required for personal use of the plaintiff. It is submitted that the plaintiff who has been examined as P.W. 3 and other witnesses have proved the aforesaid fact. Learned counsel further contended that merely by entering into an agreement for sale in his favour the defendants cannot acquire right, title and interest as owner of the property rather they remained in possession only as the tenant that even if a suit for specific performance for contract has been brought. In support of his aforesaid submission learned counsel has placed reliance upon the decision of this Court in Gajendra Pd. Sinha v. Man Mohan Pd. Sinha (1999(2) PLJR 189 and Dr. Ramesh Chandra & Ors. V. Smt. 17 Premlata Sinha (AIR 2008 Patna 155) to show that a merely filing a suit for performance of the contract would not confer title upon the alleged purchaser with respect to the property mentioned in the agreement. So far the question of the admissibility of the compromise decree due to non registration of the same, it has been contended on behalf of the plaintiff – opposite party that the decision rendered in Bhoop Singh (supra), has been considered in its subsequent decision of the Apex Court rendered in Som Devi & Ors. V. Rati Ram & Anr. (AIR 2006 SC 3297). It has clarified that the compromise decree, also being a decree of the court, would not required any registration in view of Section 17(2) of the Registration Act if it does not include immovable property other than that which is subject matter of the suit. In the case in hand, since in the compromise arrived at in the Title Suit No. 76 of 1997 the compromise arrived at was with regard to the immovable properties which were the subject matter of the suit, there was no requirement for registration of the compromise 18 decree as per Clause (vi) of Section 17 (2) of the Registration Act, 1908. It is also submitted that bonafide requirement of the suit premises has sufficiently been proved by the plaintiff by leading evidence. After having heard the submission made on behalf of the parties, this Court is of the opinion that the plaintiff’s story as set up in paragraph no. 2 of the plaint stating therein that the property was purchased by his father Ram Prasad Lal Gupta in the name of brother-in-law, namely Pasupati Nath Sah and Pursotam Sah is not tenable. Though the plaintiff, at the time of his examination as P.W 3 has stated that this transaction was a sham one as that was done to protect the property from being attached and sold out in certificate case filed by the Sales Tax Department, however, sale deed has been found to be a valid document by the Court concerned in Title Suit No. 29 of 1966. It has been contended on behalf of the petitioner that the aforesaid finding would not operate as res judicata, for the reason that the suit 19 has been dismissed on the ground of limitation. Earlier suit of the year 1966 was filed by Pasupati Nath Sah against the State of Bihar and others including the father of the plaintiff for declaration of the sale deed a valid transaction and also that the defendant State of Bihar has no right to proceed against that property for realisation of the dues of the Sales Tax Department against the respondent no. 6, i.e., the father of the plaintiff. Form joint petition for compromise (Ext. 8), which had been filed in Title Suit No. 76 of 1997 by the plaintiff and others against the sons of Pasupati Nath Sah and others, it appears that the suit was filed by the plaintiff on the ground that the suit property was acquired by one Hazari Lal, the grandfather of the plaintiff of the present eviction suit and, thus, plaintiff’s father Ram Prasad Lal Gupta was not authorised to execute the sale deed with regard to the entire suit property in which plaintiff was also having share. The plaintiff was admittedly not a party in the earlier suit of 1966. In that view of the matter, whether the subsequent suit filed in the year 1997 20 would be barred under the principle of res judicata or not can only be decided in a proper proceeding after considering cases of the respective parties. Therefore, the issue as whether the Title Suit No. 76 of 1997 would be barred by res judicata cannot be decided and compromise decree could be ignored or set aside in the absence of other parties to the compromise without considering their pleadings as well as evidence at the instance of a tenant in a suit for eviction. Admittedly that compromise decree has not been challenged by filing appeal or of even by instituting a case under Order XXIII of C.P.C.. The petitioners have taken a plea that the decree of compromise having not been registered as per requirement under Section 17(2) (vi) of the Registration Act, 1908, would not be admissible in evidence. That apart, the decree having not been brought on record the joint petition of compromise and the order accepting the compromise would be of no value. Learned counsel has placed reliance upon the decision of the Apex Court rendered in Bhoop Singh (supra). It has been submitted that 21 since admittedly in paragraph 5 of the joint petition of compromise, it has been stated that adequate price had been given to the defendant for the suit property and that would amount to transfer of property. That apart compromise, also having been arrived at without any pre-existing right of the plaintiff, the same was compulsorily needed to be registered and in absence of that the same would no be admissible in evidence. The aforesaid contention raised on behalf of the defendants – petitioners is noted only to be rejected. In Paragraph no. 3 of the joint petition of compromise filed in Title Suit No. 76 of 1997, it has been disclosed that the suit property was acquired property of one Hazari Lal, the grandfather of the plaintiff Ram Prasad Lal Gupta. The father of the plaintiff was incompetent to execute sale deed with respect to the entire suit property as the plaintiff was also having share. The contention may be right or wrong but the title suit seems to have definitely been filed on the basis of some pre- 22 existing right and in addition to that, for amicable settlement, certain amount has also been given to the other side. Thus, it cannot be held that the suit was filed without disclosing any pre-existing right of the plaintiff. Compromise petition has been signed by all the parties to the suit. It goes without saying that the plaintiff as well as the defendants both have led evidence also accepting therein that they had accepted the compromise. Such evidence has been brought on Exts. 6 and 6/A. The order accepting compromise is also on record. Thus, in the opinion of this Court, the plea of compromise cannot be thrown away on the ground that the decree has not been brought on record. The decision rendered in Bhoop Singh (supra) has been considered and clarified by the Apex Court in subsequent decision in Som Dev (supra). It has been held by the Apex Court that if the suit ends in a compromise and the decree on the basis of compromise relates to a