IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1464 of 2007 1. BRAHMDEO YADAV, SON OF AJO YADAV @ GOPE. 2. MANOJ YADAV. 3. ANOJ YADAV. 4. SANJAY YADAV @ SANJAY KUMAR. 5. RAJESH YADAV @ RAJESH KUMAR. 6. PANKAJ YADAV @ PANKAJ KUMAR YADAV. ALL SONS OF BRAHMDEO YADAV. ALL RESIDENTS OF VILLAGE-PANCHVIR, P.O.-PANCHVIR, P.S.-SAHEBPUR KAMAL, DISTRICT-BEGUSARAI. ……………………………… DEFENDANTS ……………………PETITIONERS Versus KRISHNA MOHAN YADAV, SON OF SAKHI CHAND GOPE, RESIDENT OF VILLAGE AND P.O.-PANCHVIR, P.S.-SAHEBPUR KAMAL, DISTRICT-BEGUSARAI. ………………………… PLAINTIFF ……………… OPPOSITE PARTY. FOR THE PETITIONER : MR. PRAMOD MONBONSH, ADVOCATE FOR THE OPPOSITE PARTY : MR. PRAMOD KUMAR SINHA, ADVOCATE MR. MADHUKAR NR. SINHA, ADVOCATE MR. ARVIND KUMAR SHARMA, ADVOCATE P R E S E N T THE HON’BLE JUSTICE MIHIR KUMAR JHA ********* Mihir Kumar Jha, J. Heard counsel for the petitioners and counsel for the opposite party. The defendant-petitioners in this application under Section 14 (8) B.B.C. Act have assailed the judgment and decree dated 28.5.2007 in Title Eviction Suit no. 19/2003 directing their eviction and handing over the vacant possession to the plaintiff- opposite party. At the out set, counsel for the petitioner had taken a stand that the impugned judgment was bad only on account of the fact that the relationship of landlord and tenant was not established and yet the Court below by the impugned judgment had allowed the suit of the plaintiff-opposite party directing eviction of the petitioner . 4 2 Counsel for the petitioners in this regard with reference to the pleadings on record has relied on the statement of witnesses, P.W.1, (paragraph No.9), P.W.2 (paragraph Nos.7) and 8, P.W.3 (paragraph Nos. 8 and 9) , P.W.4 (paragraph No.2) and P.W. 5 (paragraph Nos. 18). to contend that in these oral evidence of the plaintiff himself the claim of the petitioners, the defendant- tenant, in the Court below had been admitted that they were residing in the suit premises for a very long period and that they had not seen any documents with regard to creation of any relationship of landlord and tenant in the form of kirayanama or otherwise. Counsel for the petitioners in this regard had also tried to assail the findings of the Court below by taking a plea that even if it be assumed that there was a sale deed executed by the father of the petitioners in favour of the father of the plaintiff- opposite party, that by itself was not sufficient to extinguish the right of the petitioner in the suit premises inasmuch as the said sale deed of the year 1946, Ext. 1 was a fraudulent and collusive sale deed created only with a view to save them (father of the petitioner) from rigours of evacuee property. In nut shell, the submission of the counsel for the petitioners, therefore, was that even if the petitioners had failed to prove his title, yet they could not have been directed to be evicted because the plaintiff-landlord had failed to prove that he was actually a landlord in terms of the B.B.C. Act. Counsel for the petitioners had also relied on the judgment of this Court in the case of Shri Dinesh Nandan Sahay Vrs Ram Kirpal Singh & Ors. 3 reported in 1996(1) P.L.J.R. 234 as also in the case of Smt. Sumitra Devi Vrs Md. Ashgar 2007(3) PLJR 732. Controverting the aforementioned submissions, the learned counsel for the opposite party had not only relied on the documentary evidence, Ext. 1, the sale deed of the year, 1946 but also on an admission of the petitioner as with regard to the opposite party having title of the suit property and also his landlord. In this context, the counsel has referred to paragraph Nos. 4, 5 and 6 of the examination-in-Chief of the plaintiff- opposite party (P.W.5) and has shown from the cross-examination that the issue with regard to giving the house in question on rent for a period of six months in the year, 2002 for a sum of Rs. 50/- by way of an oral agreement was not even remotely questioned much less controverted by putting any question to the said witness. Having given an anxious consideration to the aforementioned submissions, this Court is of the view that the challenge of the petitioner on the solitary issue of relationship of landlord and tenant must fail inasmuch the finding of the Court below in paragraph No. 11 of the impugned judgment is quite specific that the land including suit premises in question was ancestoral property of the forefather of the petitioner but the father of the petitioner by a registered sale deed dated 16.8.1946, had sold the same to the father of the opposite party. The Court below has also taken meticulous care to the examine of the correctness of the registered sale deed while recording a finding of fact that the father of the petitioner had executed the said registered sale deed dated 16.8.1946 and in fact 4 died in the year, 1984 and in his life time he had never questioned the validity and correctness of the said sale deed. The Court below in fact on the basis of materials on record has also analyzed that the plea being taken by the petitioners in the eviction suit that the said sale deed was created by his father to protect his property from the Britishers was absolutely unbelievable story not supported by any evidence. In the opinion of this Court, the effort of the petitioners to assail the sale deed executed by his father admittedly with regard to the suit property is a desperate attempt to wriggle out of an admitted fact supported by documentary evidence. It cannot be believed that even when the sale deed Ext.1 executed by the father of the petitioners was allegedly meant to save him from the rigours of evacuee property during British regime, he still did not take any steps to recover such property in next 36 years, i.e. in his life time upto 1984. That apart the father of the petitioners and the petitioners are bound by the provisions in Section 91 and 94 of the Evidence Act laying down the manner of exclusion of oral evidence by documentary evidence. Thus the petitioners cannot be heard to say that contents of the sale deed conveying the suit property by their father in an unequivocal manner to the father of the plaintiff- landlord, opposite party was in any way defective much less collusive . Atleast in presence of the sale deed, Exhibit-I the clinching documentary evidence the petitioners claim to the property as their own property must be rejected because their father had already divested such right of ownership through a registered sale deed, on the basis of which the father of the 5 plaintiff had already come into possession in 1946 itself. The further story of the petitioners that they should have been declared owner and landlord in view of oral evidence on record has to be only noticed for its being rejected because it is the case of the parties that even otherwise the petitioners had their separate house by the side of the suit premises, which had fallen in the floods leading to the necessity of taking the house in question on rent from the plaintiff-opposite party. If that be so, the mere suggestion in some of the oral evidence of the petitioners that they were residing in the suit premises by itself will not be proof of their being owner of the house in question. In the same way, the submission of the counsel for the petitioner that the plaintiff- landlord-opposite party had failed to prove that he is landlord, is also totally misconceived inasmuch as from the oral evidence also, it is clearly established that creation of such tenancy was by way of an oral agreement, as asserted in paragraph Nos. 4, 5 and 6 of the deposition of the plaintiff that he had given the suit premises on rent to the petitioners for a period of six months on monthly rental basis of Rs. 50/- per month and the same was not even remotely challenged in his cross examination by the petitioners. If that be so that by itself would be sufficient to prove the relationship of landlord and tenant between the petitioner and opposite party. At this stage, counsel for the petitioner has got up to make a submission that any further discussion by this Court on the findings recorded by the Court below on this score would prejudice the petitioners in claiming their right of title to the suit 6 property which they may like to agitate by filing a separate suit. If that be so, this Court would refrain from giving any further finding though there are overwhelming evidence to show that the petitioner was a tenant and was rightly directed to be evicted by the impugned judgment. The reliance placed by the counsel for the petitioner on the judgment of this Court in the case of Shri Dinesh Nandan Sahay Vrs Ram Kirpal Singh & Ors. reported in 1996(1) P.L.J.R. 234 is also of no avail inasmuch as there is no difficultly in accepting the proposition of law laid down therein by the Division Bench in the aforementioned judgment that the definition of landlord is wide enough to include any person who may have received the rent or was even entitled to receive the rent and that the initial onus to prove relationship of landlord and tenant would always be on the landlord who brings the suit for eviction. As stated above, this aspect of the matter has not only been gone into by the court below in the impugned judgment but even otherwise there are unimpeachable materials to show that the plaintiff- landlord had discharged his onus successfully. Similarly, the strong reliance placed by the counsel for the petitioner in the judgment of this Court in the case of Smt. S. Devi (supra) also seems to be misplaced, which only lays down the comparative scope of the weight of oral evidence vis-à-vis documentary evidence and that mere statement of interested witnesses should not be treated to be enough for deciding the issue of relationship of landlord and tenant. In the present case it is however clearly established from the documentary evidence, 7 Exhibit-I that the suit property in question was sold to father of the plaintiff way back in 1946 and that very house was let out on the rent to the petitioners in the year, 2002, which stands supported by unrebutted evidence of P.W.5. Thus the ratio of the judgment in the case of S. Devi (supra) in the light of documentary evidence in form of Ext. 1, as discussed above, far from supporting the case of the petitioners goes against them. This Court would thus not find any reason to interfere with the impugned order and accordingly, this application being wholly misconceived is hereby dismissed. The stay order granted earlier by this Court on 8.8.2008 is vacated and petitioners are directed to hand over vacant peaceful possession of the suit property to the plaintiff-opposite party within a period of 90 days, from the date of receipt/production of a copy of this order failing which the Court below will be free to take appropriate action against the petitioners. With the aforementioned observations and directions this Civil Revision application is dismissed. Patna High Court Dated the 7th Nov. 2008 A.F.R./Bibhash (Mihir Kumar Jha, J.)