IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.394 of 2007 ---- Jawahar Sharma S/o Late Ramjanam Sharma, R/o Village + P.O. Bhimpur, P.S. Badaharia, Pargana Bara, District Siwan. At present R/o Village Dak Khara, P.S. Badaharia, District-Siwan. -- Defendant-petitioner. Versus 1. Hari Kishore Asthana, 2. Jugal Kishore Narayan Sinha 3. Nawal Kishore Narayan Sinha 4. Mohan Prasad Sinha 5. Ram Prasad Sinha @ Sohan All are sons of Late Hardeo Narayan Sinha All are resident of Village Kak Khana, P.S. Badaharia, Pargana Bara, District-Siwan. -- Plaintiffs-Opposite parties. ------ For the petitioner : Mr. Chandra Kant, Advocate. For the opposite parties : Mr. Shashi Shekhar Dwivedi, Senior Advocate Mr. Ranjan Kumar Dubey, Advocate. ---- 05. 06.08.2009 I.A.No.1249 of 2007 has been filed on behalf of the petitioner for condoning the delay in filing of the civil revision. Considering the averments made by learned counsel for the petitioner and the statements made in the interlocutory application, it appears that genuine reasons have been shown due to which the petitioner could not file the civil revision earlier. Accordingly, this interlocutory application is allowed and the delay in the filing of the civil revision is condoned. 2. Heard learned counsel for the petitioner and learned counsel for the opposite parties. 3. This civil revision has been filed by the defendant- petitioner challenging order dated 03.07.2004 passed by learned Munsif under the provision of Section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act (hereinafter referred to as ‘the - 2 - Act’) for payment of arrears of rent as well as current rent by the defendant-petitioner to the plaintiff-opposite party in Eviction Suit No.11 of 2001. 4. The aforesaid eviction suit was filed by the opposite parties for eviction of the defendant-petitioner from the suit premises, namely a garage with land, on the grounds of default in payment of rent by the defendant and bonafide personal requirement of the plaintiffs with respect to the aforesaid suit premises and also for recovery of arrears of rent as well as for other ancillary reliefs. 5. The sole defendant appeared in the suit and filed his written statement accepting that since 1986 he was a tenant of the plaintiffs at the rent of Rs.150 per month with respect to the land involved in the suit, but it was a Parti land and he had constructed a garage thereon in 2001 and hence the suit was not maintainable under the provision of the Act. A counter claim was also filed by the defendant claiming that there was an oral agreement for sale of the suit land between the parties on 11.07.2001 and hence the defendant was entitled for specific performance of the agreement. 6. It transpires that on 23.06.2003, the plaintiff filed a petition under Section 15 of the Act for payment of monthly rent by the defendant to the plaintiffs with respect to the suit premises. This petition has been allowed by the learned court below vide order dated 03.07.2004 which is under challenge in the instant civil revision, filed by the defendant. 7. So far the question of tenancy is concerned, it is - 3 - admitted by the defendant that he had taken the suit land on rent from the plaintiffs and hence he was plaintiffs’ tenant and the rent was fixed at Rs.150 per month. It is also not in dispute that the said rent has not been paid by the defendant to the plaintiffs during the pendency of the suit. Hence the tenancy, the rate of rent and its non- payment at least since the filing of the suit are admitted facts. 8. The question in dispute is the plaintiffs’ claim that the land with garage was given by the plaintiffs in the tenancy of the defendant, whereas the defendant claim was that he was given tenancy of parti land in 1986 and much subsequently he constructed a garage in the year 2001. The other question in dispute is that when there was an agreement for sale of the suit land between the plaintiffs and the defendant on 11.07.2001, there was no question of payment of rent by the defendant to the plaintiff. The defendant has raised another question that vide registered sale deed dated 21.01.2004, one of the plaintiffs had sold the suit premises to a third person and hence the plaintiffs are not entitled for any rent or eviction. 9. So far the question of tenancy being only for parti land is concerned, no application has been filed by the defendant in the suit raising the preliminary issue of maintainability of the suit under the Act. In the said circumstances, the said question, which is a mixed question of fact and law, has to be considered at the time of final hearing of the suit and on that basis the plaintiffs cannot be deprived of the admitted rent. - 4 - 10. So far the oral agreement for sale of the suit land dated 11.07.2001 is concerned, it is claimed by the defendant that the suit was filed in September, 2001 and hence the claim of the defendant with regard to oral agreement for sale dated 11.07.2001 cannot be said to be free of any doubt. Furthermore, since the alleged agreement is not in writing it is not clear that, even if the claim of the defendant is accepted, as to whether he was to stop the payment of rent or to pay rent until the execution of the sale deed. In the said circumstances, the claim with respect to the said oral agreement cannot validly falsify the claim of the plaintiffs at this stage. 11. So far the question of sale of the suit premises by one of the plaintiffs by registered deed dated 02.01.2004 is concerned, it has not been made clear as to how one of the plaintiffs who was one of the co-sharers can sell the entire suit land to a third person without any authority from his other co-sharers. Furthermore until the plaintiffs attorn the defendant with respect to the said sale and direct them to pay rent to the transferee, it is the duty of the tenant to continue paying rent to the plaintiff or plaintiffs, but in the instant case at least during the pendency of the suit, rent has not been paid by the defendant either to the plaintiffs or to any one else. 12. In the aforesaid facts and circumstances of the case, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is dismissed. Sunil (S. N. Hussain, J.)