High Court Patna High Court - Orders

Subhash Thawani vs Rai Atul Krishna on 29 June, 2011

Patna High Court – Orders
Subhash Thawani vs Rai Atul Krishna on 29 June, 2011
                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                    C.R. No.339 of 2010
                     SUBHASH THAWANI, SON OF SRI R.D. THAWANI, BEING
                     IN THE FLAT ON THE FIRST FLOOR IN KRISHNA CHOWK,
                     ABOVE SHOP NO. 4 & 5 OF KRISHNA CHOWK, STATION
                     ROAD, P.S. KOTWALI IN THE TOWN AND DISTRICT OF
                     PATNA                           --- DEFENDANT/PETITIONER.
                                            Versus
                     SRI RAI ATUL KRISHNA, SON OF LATE RAI ABHAY
                     KRISHNA, RESIDENT OF MOHALLA- ANANDBAGH PATNA
                     CITY P.S. KHAJEKALAN, DISTRICT- PATNA
                                                 - PLAINTIFF/OPPOSITE PARTY.
                                                -----------
                     For the petitioner: M/S K.N.Choubey, Sr. Adv. With Neeraj
                                         Kumar, Sidharth Harsh, Yogendra Kr.
                                         Dwivedi, Prabhat Kr. Munna, Ashok
                                         Kumar Garg and Sanjay Ojha,
                                         Advocates.
                     For Respondent: M/s Jashwir Singh Arora with Ajay Kumar
                                         and Ravi Bhatia, Advocates.
                                            --------

                                           ORDER

22/ B.P.Verma,J: The petitioner has filed the present civil revision

application under section 14(8) of The Bihar Buildings (Lease,

Rent and Eviction) Control Act, 1982 (In short “the Act”),

questioning the validity and legality of the judgment and

decree dated 30.05.2009 passed in Eviction Suit No. 3 of

2005 by learned Execution Munsif, Patna decreeing the suit

brought by the plaintiff- opposite party herein for eviction on

the ground of personal necessity in terms of section 11(1) (c)

of the Act.

2. Before coming to the factual backdrop of the

present case, it would be relevant to mention here that

originally against the instant impugned judgment dated

30.05.2009 passed in aforesaid Eviction Suit No.3 of 2005,

C.R. No. 1896 of 2009 was filed by one Krishna Bihari Ojha
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claiming himself to be the holder of power of Attorney of

present petitioner- Subhash Thawani. In that Civil Revision

No. 1896 of 2009, Plaintiff Sri Rai Atul Krishna was

impleaded as opposite party 1st Set and defendant Shri

Subhash Thawani (the present petitioner) was impleaded as

opposite party 2nd set. However, on the objection raised on

behalf of the plaintiff- opposite party 1st set regarding

maintainability of that civil revision application at the

instance of a third person, namely, Krishna Bihari Ojha ,

aforesaid civil revision application was dismissed as

withdrawn by order dated 17.02.2010 passed by a Bench of

this Court with a liberty to file a fresh properly constituted

civil revision application by the defendant- judgment debtor-

Subhash Thawani (the present petitioner).

3. In the light of aforesaid order dated 17.02.2010

passed in C.R. No. 1896 of 2009, the present civil revision

application was filed on 01.04.2010 by the present petitioner,

who was admittedly defendant in the Eviction Suit No. 3 of

2005. In view of the fact that present civil revision application

was barred by limitation, I.A. No. 3611 of 2010 was filed on

behalf of the petitioner for condonation of delay of 246 days

in the background set forth above, and after hearing the

parties, a Bench of this Court by an order dated 28.10.2010

has allowed the aforesaid interlocutory application and has

condoned the delay by a reasoned and speaking order.

Thereafter, the matter was taken up and with the consent of

the parties, was heard at length at the stage of admission

itself for its final disposal.

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4. The facts relevant for disposal of the present

Civil revision application are indicated, in brief, hereinafter.

The plaintiff- opposite party herein, claiming himself to be the

landlord, brought Eviction Suit No. 3 of 2005 in the Court of

learned Munsif-3, Patna seeking a decree for eviction against

sole defendant-petitioner herein with respect to suit

premises. The suit premise is entire first floor flat having an

area of 800 Sq. feet bearing holding No. 489(old),

corresponding to present holding No. 1665/878 above shop

no. 4 and 5, situate at Krishna Chowk, Station Road, P.S.

Kotwali in the town and District of Patna, and has been

detailed in schedule-1 of the plaint. It was claimed that

defendant was inducted as the tenant on the oral lease,

which ultimately expired on the last day of March, 1992.

Thereafter, on the request of the defendant, a fresh oral lease

with possession was created w.e.f. 01.04.1992 till

31.03.1993, i.e. for 12 months at the monthly rental of Rs.

2100/-. After March, 1993, though lease has not been

extended, but the defendant remained in occupation of the

suit premises as the tenant.

5. It is the specific case of the plaintiff- opposite

party herein that he has no other house of his own for living,

and at present he is residing in a house inherited by his

mother, situate at Patna City, which is far away from the

offices of the plaintiff and his wife, where they are working. It

has also been pleaded that two minor daughters and one son

of the plaintiff are pursuing their studies in the schools

situate at western part of Patna, which are far away from
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Patna City, but at a short distance from suit premises.

Children are facing great difficulty in going to the schools in

the morning hours and returning to their house in the day,

when invariably traffic “Jam” occurs in the Patna City. On

these grounds, reasonably and in good faith for his own

occupation and for the occupation of his wife and three

children, he sought eviction of the defendant- petitioner

herein from the suit premises in terms of section 11 (1) (C) of

the Act.

6. The sole defendant- petitioner herein, after

obtaining leave to contest the suit in terms of section 14(5) of

the Act, filed his written statement challenging the

maintainability of the suit on various grounds and prayed for

its dismissal. However, in paragraph-11 of the written

statement it was clearly stated that Shri Rupchand Daulat

Ram, the father of the defendant, had taken shop no.4 on

rent in the year 1948 from late Rai Abhay Krishna, the father

of the plaintiff on monthly rent, which continued till 1990.

The first floor of said building was constructed in the year

1986 by the father of the plaintiff. When aforesaid shop no. 4

was sold to one Sri Tilak Raj Gandhi, then defendant was

inducted in the suit premises by the father of the plaintiff on

a rent @ Rs. 1100/- per month. It has been claimed by the

defendant that there was verbal commitment by the father of

the plaintiff to sell the suit premises to defendant for Rs. 2

lakhs, and till the entire amount is paid by defendant, he

shall remain as tenant. The defendant claims to have paid

the entire amount of Rs. 2,00,000/-( Rs. Two lakhs).
5

Thereafter he claims to have become the owner of the suit

premises and also claims to have continued in possession in

that capacity since January, 1993 and relationship of

landlord and tenant ceased to exist thereafter. It was further

pleaded that since the defendant is in occupation over the

suit premises since 1993 as the owner and more than 12

years have elapsed since then, he acquired the right and title

on the basis of principles of adverse possession.

7. Both parties have produced their oral and

documentary evidence in support of their respective claims.

From the side of plaintiff four witnesses including the plaintiff

himself were examined, whereas from the side of defendant,

seven witnesses have been examined, but the defendant has

chosen not to examine himself as a witness. On consideration

of all the materials, learned trial court has decreed the suit

and directed the defendant to vacate the suit premises and

hand over the vacant possession of the same to the plaintiff

within two months from the date of the judgment.

8. Mr. K. N. Choudhary, learned Senior Counsel

appearing on behalf of the petitioner, in his elaborate

submissions, has questioned the validity and legality of the

impugned judgment and decree primarily on following three

grounds:

(i) In view of controversy about relationship of landlord

and tenant between the parties, the learned trial

court was required to frame an issue regarding

relationship of landlord and tenant and that having

been not done, the impugned judgment is fit to be
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set aside.

(ii) While passing the impugned judgment, learned

court below was obliged to consider as to whether a

partial eviction would satisfy the need of personal

necessity of the landlord.

(iii) Learned trial court, while hearing the suit under

section 14 of the Act, was required to follow the

practice and procedure of a court of Small Causes

and, therefore, he could not have gone into the

question of title or adverse possession raised on

behalf of the defendant- petitioner in the instant

suit.

9. In support of the aforesaid contention, Mr.

Choubey, learned Senior counsel for the petitioner, has

placed reliance on certain judgments of this Court as also the

Apex Court, which shall be dealt with appropriately at

appropriate place.

10. Mr. J.S. Arora, learned counsel appearing on

behalf of the sole opposite party- landlord, in his elaborate

submissions, has fully supported the impugned judgment

and decree passed by learned trial court and has prayed for

dismissal of the present civil revision application. According

to Mr. Arora, learned counsel, the original tenancy having

been admitted by the defendant in his written statement and

plea of adverse possession having not been accepted by the

learned trial court, the relationship of landlord and tenant

between the plaintiff and defendant would be deemed to have
7

been admitted. He further submits that the dispute regarding

relationship of landlord and tenant between the plaintiff and

defendant is not based on the basis of any valid documentary

evidence. Further, the plea of ownership since January, 1993

on the basis of oral agreement, and plea of acquiring right,

title and interest on the basis of adverse possession, are

contradictory to each other. He next submitted that question

of partial eviction has been gone into and considered by the

learned trial court in details in paragraph-15 of the impugned

judgment and learned trial court has come to a finding that

partial eviction will not satisfy the personal requirement of

the plaintiff and, therefore, there has been full compliance of

section 11(1) (C) proviso of the Act. He has also placed

reliance on various judgments of this Court as also the Apex

Court in support of his aforesaid contentions, and for

supporting the impugned order/judgment passed by the

learned trial court.

11. After having heard the parties at length and

on consideration of the materials available on record, this

Court finds that defendant-petitioner herein has admitted the

origin of tenancy between his father and father of plaintiff

since 1948 with respect to shop no.4, admittedly belonging to

the father of the plaintiff. The suit premises is the entire first

floor situate over the aforesaid shop no.4 said to have been

constructed in the year 1986. The defendant has also

admitted that when shop no. 4 was sold to one Tilak Raj

Gandhi in the year 1990, then he was inducted as a tenant

on rent in the suit premises @ Rs. 1100/- per month and
8

thereafter he continued there in that capacity. The petitioner

claims to have entered into an oral agreement with the father

of the plaintiff for purchase of suit premises for Rs. 2 lacs

and claims to have paid the aforesaid amount till December,

1992 and claims to have become owner of the suit premises

since January, 1993, but not a chit of paper has been

produced either regarding agreement to sell or regarding

payment of consideration money.

12. This Court further finds that possession of the

defendant-petitioner over the suit premises is permissive

possession and not on the basis of adverse possession. Even

if the defendant has been in continuous possession for more

than 12 years, then in that case also it would not constitute

an adverse possession, as in the present case it was

apparently a permissive possession of the defendant over the

suit premises. The claim of title on the basis of oral

agreement on payment of Rs. 2 lakhs in cash till December

1992 appears to be palpably false and not acceptable. Section

54 of The Transfer of Property Act, 1882 mandates that

transfer of tangible immovable property of the value of Rs.

100/- and upwards has to be made only by a registered

instrument. Section 17 of The Registration Act, 1908

mandates that if right, title and interest is transferred by a

non-testamentary instrument with respect to an immovable

property of the value of Rs. 100/- or upwards, then that has

to be registered one. In the present case the petitioner claims

to have acquired his right and title over the suit premises by

paying an amount of Rs. 2 lacs, but neither the mandate of
9

section 54 of The Transfer of Property Act, 1882 nor the

mandate of Section 17 of The Registration Act, 1908 has been

complied with. It is apparent that for the sake of disputing

relationship of landlord and tenant between the plaintiff and

the defendant, such a plea was taken by the defendant-

tenant and has rightly been rejected by the learned trial

court. There appears to be no semblance of right or title of

the defendant over the suit premises. Hence, Section 23 of

The Provincial Small Cause Courts Act, 1887, as submitted

on behalf of the petitioner, has absolutely no application in

the present case.

13. The plea of title on the basis of oral agreement

and alleged payment of price, and plea of acquiring title on

the basis of adverse possession are self contradictory and

cannot be accepted. The Apex Court in the case of L.A.

Aswathama Vs. P. Prakash, reported in 2009 (4) PLJR (SC)

111 has held that pleas based on title and adverse

possession are mutually inconsistent. Paragraph 17 of that

judgment would be relevant and is reproduced herein below:

“17.- The legal position is no doubt
well settled. To establish a claim of
title by prescription, that is adverse
possession for 12 years or more, the
possession of the claimant must be
physical/actual, exclusive, open,
uninterrupted, notorious and hostile
to the true owner for a period
exceeding twelve years. It is also well
settled that long and continuous
possession by itself would not
constitute adverse possession if it
10

was either permissive possession or
possession without animus
possidendi. The pleas based on title
and adverse possession are mutually
inconsistent and the latter does not
begin to operate until the former is
renounced. Unless the person
possessing the property has the
requisite animus to possess the
property hostile to the title of the true
owner, the period for prescription will
not commence.”

14. A Bench of this Court in the case of Deepak

Kumar Verma & Ors. vs. Ram Swarup Singh, reported in

1991(2) PLJR 541 has held that in a suit for eviction on the

ground of personal necessity under section 11 of the Act, if

complicated question of title is raised, then that should not

been decided in a proceeding under Section 14 of the Act.

Ratio laid down in that case is not applicable in the present

case. As a matter of fact, question of title raised on behalf of

the defendant- petitioner herein on the basis of oral

agreement is not at all believable for the reasons recorded

above. What to talk of a complicated question of title between

the parties, there is no semblance of title at all with the

defendant- petitioner with respect to suit premises.

15. The Apex Court in the case of Rambhau

Namdeo Gajre vs. Narayan Bapuji Dhotra( dead) through

L.Rs. , reported in 2005(1) PLJR (SC) 70 has observed in

paragraph-13 that agreement to sell does not create any

interest of the proposed vendee in the suit property. The title

in an immovable property valued at more than Rs. 100/- can
11

be conveyed only by executing a registered sale deed.

Applying the aforesaid principle, this Court finds that

apparently the defendant has not acquired any interest with

respect to suit premises on the basis of alleged oral

agreement. Admittedly no deed of transfer has either been

produced by the defendant or was ever executed by the father

of the plaintiff in favour of the defendant.

16. The question raised on behalf of the

petitioner regarding non-consideration of the issue of partial

eviction and thereby non-compliance of mandate of Section

11(1) (C) proviso of the Act seems to be completely

misconceived. In paragraph-15 of the impugned judgment

learned trial court has considered that issue at length and

has come to a finding that partial eviction would not satisfy

the needs of the plaintiff of his personal occupation of the

entire suit premises.

17. On the ground of equity also the petitioner

has failed to make out a case at all for interference with the

impugned judgment and decree of the learned court below.

From the materials available on record this Court finds that

defendant has admitted on oath that for the last several years

he is not living in Patna rather he is living in Gujrat. He

claims to have given a power of attorney to one Krishna

Bihari OJha for running his business. Admittedly, aforesaid

Krishna Bihari Ojha is not at all directly related or family

member of defendant- petitioner. If at all the aforesaid

Krishna Bihari Ojha is running a business in the suit

premises, then that would be violation of the terms and
12

conditions of the tenancy.

18. For the reasons recorded above, this Court

does not find any legal infirmity or material irregularity with

the impugned judgment and decree passed by the learned

court below. In exercise of powers under section 14(8) of the

Act, there is no scope for interference with the impugned

judgment and decree passed by the learned court below

directing eviction of the defendant- petitioner herein from the

suit premises.

19. Consequently, the civil revision application has

to fail. It is, accordingly, dismissed. No costs.

( Birendra Prasad Verma, J.)

PATNA HIGH COURT
Dated the 29th June, 2011
BTiwary/ A.F.R.