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.
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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.
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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withdrawn by order dated 17.02.2010 passed by a Bench of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
6
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
10was 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
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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
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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.