Bibi Zafira Khatoon & Ors vs Md. Hussain & Anr

2. Appellant No.1, Bibi Zafira Khatoon and her husband Syed Mohammed Jalaluddin (since deceased) filed suit for eviction of respondent No.2, Mohammed Manzurool Haque from a portion of their residential 2 house situated at Motihari on the grounds of personal and bonafide necessity and default in payment of rent. In the plaint, it was averred that appellant No.1 and her husband were influenced by the claim of respondent No.2 that he possessed spiritual powers and will bring peace in their family and, therefore, allowed him to occupy a portion of the house at a monthly rent of Rs.190/-. It was further averred that Syed Mohammed Jalaluddin was going to retire from service very soon and he was desirous of living in his own house. The ground of default was elaborated by stating that respondent No.2 did not pay rent for the period from January, 1981 to December, 1983. In the written statement filed by him, respondent No.2 denied the very existence of the landlord-tenant relationship between the parties. He claimed that he never occupied the house belonging to appellant No.1 and her husband or any portion thereof as a tenant. While admitting that he possessed spiritual power, respondent No.2 pleaded that appellant No.1 and her husband sought his blessings and they were immensely benefited by his association. According to respondent No.2, appellant No.1 and her husband felt that their house was haunted by evil spirits who killed their two sons and requested him with folded hands to use his spiritual power to drive away the evil spirits and, therefore, he agreed to occupy one room in the year 1978. Respondent No.2 further pleaded that Syed Mohammed Jalaluddin requested 3 him to find out some purchaser and after some talks, the sale of house was finalized with respondent No.1, Mohammed Hussain. Thereafter, agreement (mahadanama) dated 9.1.1982 was executed between appellant No.1, her husband and respondent No.1 and the latter was given possession of the house. Respondent No.2 also made a mention of the suit filed by respondent No.1 for specific performance of the agreement for sale. Respondent No.1, who had already filed Title Suit No.76/1983 (renumbered as 196/1987) for specific performance of the agreement, got himself impleaded as intervenor defendant in the eviction suit and filed written statement supporting the case set up by respondent No.2.

4. After detailed analysis of the pleadings of the parties and the evidence produced by them, the trial Court dismissed the suit for specific performance of the agreement for sale and decreed the one filed for eviction of respondent No.2. The trial Court held that the so-called agreement (mahadanama) dated 9.1.1982 is not a legally admissible document and the same cannot be made basis for passing a decree for specific performance. The trial Court further held that the plaintiff of Title Suit No.76/1983 was not put in possession of the suit house by Syed Mohammed Jalaluddin. In the eviction suit, the trial Court returned the finding that respondent No.2 was tenant in the suit premises and the same was required by the landlords for their personal and bonafide need. Appeal preferred by respondent No.2 against the decree of eviction was dismissed by the 4th Additional District Judge, Motihari, who confirmed the finding recorded by the trial Court that need of the landlords was bonafide. The appellate judgment became final because respondent No.2 did not challenge the same by filing second appeal. 5

6. By an order dated 28th November, 1997, the Executing Court allowed the objection petition and dismissed the execution application by observing that the decree of eviction was passed only against respondent No.2 and not against the objector. The Executing Court referred to the evidence produced by the parties and held that the judgment-debtor left the room and the applicant is residing in the suit house along with his family. Civil Revision No.395/1998 filed by the appellants was dismissed by the High Court by observing that even though Section 12 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 [for short, "the Act"] has overriding effect qua the provisions of other enactments, the same cannot be invoked against 6 a person who is not a tenant within the meaning of Section 2(h) of the Act. The High Court noted that as per respondent No.1, he was living in the house in his own right, i.e., on the basis of the agreement for sale and that the appeal filed by him against dismissal of the title suit was pending and held that during pendency of the appeal filed against dismissal of the suit for specific performance of the agreement for sale, respondent No.1 cannot be treated as a tenant of the suit premises.

7. Shri Ranjan Mukherjee, learned counsel for the appellants pointed out that First Appeal No. 33/1989 filed by respondent No.1 against the decree passed by the trial Court in the title suit was dismissed by the High Court vide its judgment dated 18.5.2007 and Special Leave Petition (C) No. 6471/2008 filed by him was dismissed by this Court on 12th August, 2009. He then argued that in view of the non obstante clause contained in Section 12 of the Act, the Executing Court was duty bound to order eviction of respondent No.1 because the title suit filed by him was dismissed and he was never inducted as a tenant in the suit premises with the express written permission of the landlords.

15. In view of the above discussion, we hold that the Executing Court committed an error by refusing to execute the decree of eviction against respondent No.1 and the view taken by the High Court on the applicability of Section 12 of the Act qua respondent No.1 is clearly flawed and untenable. As a corollary to this conclusion, the appeal is allowed, the impugned order is set aside and the execution application filed by the appellants is allowed. Respondent No.1 and his family members who are occupying the suit premises are allowed three months' time to vacate the same and hand over physical possession thereof to the appellants herein. This will be subject to the condition of filing of usual undertaking within four weeks from today.