[2009] 14 (ADDL.) S.C.R. 594

BIBI ZAFIRA KHATOON AND OTHERS

MOHAMMED HUSSAIN AND ANOTHER

(Civil Appeal No. 2098 of 2000)

SEPTEMBER 17, 2009

[TARUN CHATIERJEE, G.S. SINGHVI,

R. M. LODHA, JJ.)

Rent Control and Eviction:

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Bihar Buildings (Lease, Rent and Eviction) Control Act; 1982 - s. 12 - Applicability of- Eviction petition on the ground of bonafide requirement and default in payment of rent - Alleged tenant denying tenant-landlord relationship - Other

0 person getting impleaded as intervener in the petition claiming to be owner of disputed premises put in possession by the landlord - Intervener also filing title suit and suit for specific performance of agreement against the landlord in respect of the suit premises - Suits by intervener dismissed and eviction suit decreed by trial court - Appellate court E confirming the eviction decree - Execution petitiOn, dismissed holding that it was not enforceable against the intervener as he was not the tenant - On appeal, held: Executing court committed error by refusing to execute eviction decree against the intervener - Intervener's title suit F was dismissed by Courts below - SLP also dismissed - s. 12 is applicable in the instant case - The provision signifies that Court's order for recovery of possession of tenanted premises is binding on everyone, whosoever is occupying the premises, iffespective of his status.

Appellant No. 1 and her husband (since deceased) filed a suit for eviction on the grounds of bonafide need and default in payment of rent against respondent No.2.

Respondent No.2 denied tenant-landlord relationship and

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BIBI ZAFIRA KHATOON AND ORS. v. MOHAMMED 595

HUSSAIN AND ANR.

stated that he occupied the premises at the request of the A plaintiffs to drive away evil spirits from the suit premises; and that plaintiffs had entered into agreement with respondent No.1 for sale of the premises. Respondent No. 1 got himself impleaded in the eviction suit as intervener. He also filed title suit and suit for specific B performance. Trial court dismissed the suits for specific performance and the title suit and allowed the eviction suit. Appeal was filed against the order of eviction by respondent No. 2. Appellate court confirmed the order of trial court. c

Appellants filed application for execution Respondent No.1 filed objection to it. Executing Court dismissed the execution application holding that eviction decree was passed only against respondent No. 2 and not against respondent No. 1. High Court dismissed the D revision petition against the order of executing court, holding that s.12 of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 cannot be invoked against a person who is not a tenant within the meaning of s.2(h) of the Act; and that respondent No.1 could not be treated E as a tenant of the suit premises. Hence the present appeal.

Allowing the appeal, the Court

HELD: 1. The Executing Court committed an error by F refusing to execute the decree of eviction against respondent No.1. The judgment and decree passed by the trial court in the title suit have become final because the first appeal and special leave petition filed, by respondent No.1 have been dismissed by the High Court G

; and Supreme Court, respectively. [Paras 9 and 15] [6~1-

F-G; 605-8]

2.1. The view taken by the High Court on the applicability of Section 12 of Bih'f:-- '3uilding {Lease, Rent H

A and Eviction) Act, 1982; qua respondent No.1 is clearly

flawed and untenable. By enacting Section 12, the legislature has ensured that an order made by the court for recovery of possession should be executed in a wholesome manner and the landlord should not be B compelled to enter into further prolonged litigation for the purpose of getting possession of the suit premises simply because the tenant may have, without the"'' knowledge or permission of the landlord, inducted some other person in the tenanted premises. This is the reason c why Section 12 begins with a non obstante clause and

lays that where the interest of tenant is determined and an order is made by the court for recovery of possession of the premises, such order shall be binding on all persons, who may be in occupation of the premises, and

0 vacant possession thereof shall be given to the landlord

by evicting all such persons therefrom. [Paras 13 and 15]

[603-G-H; 604-A-C; 605-8-C] /

2~2. The use of the '.·:ords "all persons" in the substantive part of Section 12 signifies the legislative E intendment that the order passed by the court for the recovery of possession of the tenanted premises should bind everyone who may be occupying the premises irrespective of his status. Section 12 seeks to ensure delivery of vacant possession of the premises to the F landlord by evicting not only the tenant but any other person who may be occupying the premises. The proviso to Section 12 protects the person who has independent title to such premises or the tenant who has been inducted with the express written permission of the G landlord himself personally .. [Para 13] [604-C-E]

2.3. If the case in hand is examined in the light of the plain language of Section 12 and keeping in view the fact that while deciding the suit for specific performance filed

by respondent No.1, the trial Court recorded an

BIBI ZAFIRA KHATOON AND ORS. v. MOHAMMED 597

HUSSAIN AND ANR.

unequivocal finding that husband of' appellant No. 1 had A not put respondent No.1 in possession of the suit premises and the said finding has been confirmed by the High Court, his continued occupation thereof has to be treated as unauthorized and Section 12 is clearly attracted in his case. Respondent No.1 cannot take B' benefit of first part of the proviso to Section 12 because the suit for specific performance of the agreement for sale filed by him was dismissed by the trial court and challenge to the judgment and decree of the trial court has been negatived by the High Court and Supreme c Court. Respondent No.1 cannot take advantage of second part of the proviso to Section 12 because it is neither his pleaded case nor any evidence was produced before the trial court to show that he was inducted as a tenant in the suit premises with express permission of the D landlords, i.e., appellant No.1 and her husband. [Para 14]

[604-E-H; 605-A-B]

CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 2098 of 2000.

From the Judgment & Order dated 31.7.1998 of the High E

Court of Judicature at Patna in Civil Revision No. 395of1998. 'It

Ranjan Mukherjee, S. Bhowmik and S.C. Ghosh for the Appellants. - F H.L. Agarwal, Syed Ali Ahmad, Syed Tanveer Ahmed, Mohd. Shahnawaz Hasan, S.S. Bandyopadhyay, Amitab Krishna, Shabana Saifi and Mohan Pandey for the Respondents.

The Judgment of the Court was delivered by G .,

G.S. SINGHVI, J. 1. This is an appeal for setting aside order dated 31.7.1998 passed by the learned Single Judge of Patna High Court whereby he dismised the civil revision preferred by the appellants against clisrrussal of the application H

A filed by them for execution of the decree of eviction.

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

8 from a portion of their residential 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 C 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, D 1981 to December, ~983. In the written statement filed by him, respondent No.2 denied the very existence of the landlordtenant relationship between the parties. He claimed that he 9ever occupied the house blonging to appellant No.1 and her husband or any portion thereof as a tenant. While admitting that E 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 F 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 him to find out some purchaser and after some talks, the sale of house was G 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 H respondent No.1 for specific performance of the agreement for

sale. Respondent No.1, who had already filed Title Suit No. 76/ A 1983 (renumbered as 196/1987) for specific performance of the agreement, got himself impleaded as intervenor defendant in the eviction suit and filed wrjtten statement supporting the case set up by respondent No.2.

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3. The title suit filed by respondent No.1 and the eviction suit filed by appellant No.1 and her husband were clubbed because the subject matter of both the suits was common. On the pleadings of the parties, the trial Court framed 12 issues, including the following: c 3.

Whether the alleged Mahadanama dated 9.1.1982 valid, legal and admissible document and can be basis of any suit?

--I 5.

Whether plaintiff of T.S. No.76/1983 was put in D I > possession of the suit house by defendant Syed Md. Jalaluddin?

Whether the alleged Mahadanama is enforceable in law and the plaintiff is entitled to a decree for specific performance of contract?

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 F 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 plaintjff of Title Suit No. 76/1983 was not put in possession of the suit house G

'f by Syed Mohammed Jalaluddin. In the viction 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 H

A 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. After dismissal of the appeal filed by respondent No.2 against the decree of eviction, the appellants filed an application to~ execution thereof impleading the respondents

~ herein as parties. On notice, respondent No.1 filed objection c petition under Section 47 read with Section 151' of the Civil Procedure Code. He pleaded that decree cannot be executed against him because the. trial Court had ordered eviction of respondent No.2 only and also because First Appeal No.33/ 1989 filed by him against the judgment and decree of the trial Court in the suit for specific performance was pending before D the High Court. "

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

E was passed only against respondent No.2 and. not against the

object9r. 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

F 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 a person who is not a tenant within the meaning of

G 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, 'r

. 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

H of the suit for specific performance of the agreement for sale,

respondent No.1 cannot be treated as a tenant of the suit A " 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 'B 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 c 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. -•

8. Shri H.L. Agarwal, learned senior counsel appearing for D respondent No.1 submitted that the trial Court and High Court rightly refused to order eviction of his client because the decree was passed only against respondent No.2. Learned counsel further submitted that even though in the suit for specific performance of agreement for sale filed by respondent No.1, E the trial Court recorded a finding that he was not put in possession by Syed Mohammed Jalaluddin (husband of appellant No.1) and the said finding was confirmed by the High Court, he cannot be evicted from the suit premises by invoking Section 12 of the Act because he does not fall within the F definition of the term "tenant".

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9. We have thoughtfully considered the respective submissions and carefully scrutinized the records. Undisputedly, the judgment and decree passed by the trial Court in Title-Suit No. 7611983 have become final because the first appeal and G

special leave petition filed by respondent No.1 have been dismissed by the High Court and this Court, respectively. While dealing with issue No.5, which has been reproduced in the

earlier part of this order, the trial Court took cognizance of the pleadings and evidence produced by the parties and held: H

"Mere execution of an agreement for sale does not confer title and possession without title cannot be treated as legal possession in the eye of law. The plaintiff has not established the permission of defendant no.1 to possess the suit land and, therefore, possession of the plaintiff cannot be maintained as permissive possession."

10. In the appeal preferred by respondent No.1, the High Court framed as many as seven questions including the following:

"Whether the defendants had ever handed over possession of the suit premises to the plaintiff as part performance of the contract."

11. The High Court answered the aforementioned question o in negative by recording the following observations:

"26. The claim of the plaintiff is thaf he was put in possession of the suit premises by defendant No.1 in part performance of the agreement for sale. Although some witnesses of the plaintiff stated that they had seen him in possess!on of the suit premises. But only P.W. 3 and P.W. 5 apart from P.W. 7 the plaintiff himself, stated that defendant No.1 handed over possession of the suit premises to the plaintiff as part performance of the agreement for sale. Whereas on the other hand several witnesses of the defendants stated that the defendants had throughout been in possession of the suit premises and the plaintiff never came in possession thereof but out of them D.Ws. 3, 5 and 6, apart from D.W.9 defendant No.1, specifically stated that the plaintiff was never put in possession of the suit premises by the defendants as part performance of the agreement for sale.

27. So far the question of onus is concerned, it was squarely upon the plaintiff to prove that he was put in possession of the suit premises by the defendants as part

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BIBI ZAFIRA KHATOON AND ORS. v. MOHAMMED 603

HUSSAIN AND ANR. [G.S. SINGHVI, J.]

 f'.ie.rformance of the agreement for sale. But he miserably A

~ failed to support his claim by any valid evidence whatsoever. Even in the alleged written agreement for sale produced by the plaintiff as Ext.4 as well as in the receipt of Rs.17 ,000/- executed by defendant No.1 produced by the plaintiff as Ext. 3 no statement is made that the plaintiff B was ever put in possession of the suit premises by the defendants either in part performance of the agreement for -

sale or otherwise. Furthermore after proper evaluation of ..l the evidence, both oral and documentary, adduced by both the parties, the learned trial court has rightly reflected the c claim of the plaintiff as he miserbly failed to prove that he was ever put in possession of the suit premises by the defendants."

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12. We shall now consider whether Section 12 of the Act

) should have been invoked by the Executing Court for ordering D

eviction of resp_ondent No.1 from the suit premises. That section reads as under:

"12. Binding nature of the order of the Court on all persons in occupation of the building - Notwithstanding E anything contained in any other law, where the interest of

> tenant, in any premises is determined for any reason, whatsoever, and any order is made by the Court under this Act, for the recovery of possession of such premises, the - order shall be binding on all persons who may be in occupation of the premises and vacant possession thereof F

shall be given to the landlord by evicting all such persons therefrom:

Provided that nothing in this section shall apply to any G person who has an independent title to such a premises .,

or to tenant who has been inducted with the express written permission of the landlord himself personally."

13. By enacting the above reproduced provision, the legislature has ensured that an order made by the court for H

A recovery of possession should be executed in a wholesome - -' manner and the landlord should not be compelled to enter into ,. further prolonged litigation for the purpose of getting possession of the suit premises simply because the tenant may have, without the knowledge or permission of the landlord, B inducted some other person in the tenanted premises. This is the reason why Section 12 begins with a non obstante clause and lays that where the-interest of tenant is determined and an - order is made by the court for_ recovery .of possession of the premises, such order shall be binding on all persons, who may -~ c be in occupation of the premises, and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom. The use of the words "all persons" in the substantive part of Section 12 signifies the 1egislative intendment that the order passed by the court for the recovery of possession of the • D tenanted premises should bind everyone who may be occupying the premises irrespective. of his _status.· To put it " differently, Section 12 seeks to ensure delh!ery of vacant possession of the premises to the landlord by evicting not only the tennt but any other person_ who may be occupying -the

oq (

E premises. The proviso to Section 12 protects the personwho

hasJndependent title to such premises or the tenant who has bee-n inducted with the express written permission of the landlord himself persona!ly.

14. If the case in hand is examined Jn the light of the plain F language of Section 12 -and keping in yiew thefactthat while deciding the suit for specific perform'ancE:ffiied by responent No.1, the trial Court recorded an unequivocal finding that Syed Mohammed Jalaluddin had not pl.It respondent No.1 in

possssion of the suit premises and the said finding has_ been G confim1ed by the High Court, his continued occupation thereof has to be treated as unauthorized and Section 12 of the Act is r clearly attracted in his case~ Respondent No.1 cannot take benefit of first part of the proviso to Section 12 because_ the suit for specific performance of the agreement for sale filed by

H him was dismissed by the trial Court and challenge tO the

~ judgment and decree of the trial Court has been negatived by A the High Court and this Court. Respondent No.1 cannot take advantage of second part of the proviso to Section 12 because it is neither his pleaded case nor any evidence was produced before the trial Court to show that he was inducted as a tenant in the suit premises with express permission of the landlords, B i.e., appellant No.1 and her husband.

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 C qua respondent No.1 is clearly flawed a:id 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 D three months' time to vacate the same and hand over physical possession thereof to the appellants herein. This will be subje.ct to the condition of filing of usual undertaking within four weeks from today.

K.K.T.

Appeal allowed.