Ghanshyam Patel vs State Of Jharkhand

Gautam Kumar Choudhary, J

Instant writ petition has been filed against the order of eviction passed in Eviction Revision No.65 of 2023 by which the order passed by the Rent Controller, has been affirmed for eviction from the premise built over the portion of land situated at Village Khirgaon, P.S. Sadar Bara Bazar, O.P. appertaining to Khata No.229, Plot No.831 and Plot No.831/91 total area measuring 23.66 decimals.

Heard both the sides.

The main plea raised on behalf of the petitioner is that the, land in question, was a Parti land which was let out to the petitioner in the year, 1980 on which the petitioner is running a saw mill by constructing two wooden rooms and installing necessary machineries. The rent had been regularly paid to the plaintiff-respondent no.5 and on their refusal since 2002, it was disbursed by money order or by cheque, but the same was also not received. It is further contended that the petitioner was not given sufficient opportunity to lead evidence and was dispossessed within four months from institution of the case.

The main contention that is raised is that land being Parti in nature, will not come within the meaning of building under Section 2(b) of the Jharkhand Buildings (Lease, Rent and Eviction) Control, Act 2011. Reliance is placed in this regard on Anant Pd. Sah alias Anant Kumar Gupta Vs. Devendra Nath Gupta & Others, AIR 1966 Patna 29 and Smt. Jugal Kishori Devi & Others Vs. Ashok Mills & Founders and Others, AIR 1961 Patna 330.

It is further argued that no sufficient opportunity was given to lead evidence. It is argued that from bare perusal of the Annexure-4 Series i.e. rent receipts issued on different dates in the year 1968, it will be evident that parti land was leased out to the petitioner on a rent of Rs.85/- per month. The subsequent machinery structures and rooms constructed by the petitioner/ tenant will not come within the meaning of building under the Act, 2011. Reliance in this regard is placed on 1995 (3) SCC 347 and 1990 (4) SCC 493 wherein it has been held that where the land let out is vacant, subsequent construction of building by the tenant will not bring it within the four corners of Rent Eviction Act.

It is contended that the remedy with the petitioner would be under the provisions of Transfer of Property Act and not under the Rent Act, 2011.

It is argued by the learned counsel on behalf of respondents that there is specific averment in the schedule of plaint that the land comprised of four rooms on the said plot of land. This part of pleading has not been denied in the written statement. In the absence of pleading, no contrary plea could be taken at this stage. It is further argued that even if it is assumed that a Parti land was handed over, the very fact that two rooms were constructed over it, will bring the premises within the fold of the Act, 2011. Reliance is placed on Shri Binay Kumar Maheshwari Vs. Fanindra Prasad Mishra, 1999 SCC OnLine Pat 849. Learned counsel for the Respondent(s) has relied on the judgment reported in 2007 SCC OnLine Pat 180 and 2020 SCC OnLine Pat. 670.

FINDING:-

The undisputed facts that emerge from the pleadings is that suit land was let out to the Petitioner some times in 1968 on which there is presently a running saw mill and a few rooms constructed.

The dispute is that if a parti land was let out or it was let out with some roots or hutment constructed over it and Annexure-4 series suggests that it was a parti land let out on a monthly rent of Rs. 85/- in 1968.

The question before this Court is whether subsequent structures constructed over the land by the Petitioner will bring it within the meaning of Building as defined under Section 2(1)(b) of the Jharkhand Act, 2011. In order to appreciate the rival submissions, it will be desirable to extract Section (1)(b) which reads as under:

(b) “Building means any building or hut or a part of the building or hut, let or to be let, separately for residential or non-residential purposes and includes:-I. the garden, grounds/open spaces and outhouses, if any, appurtenant to such building or hut or part of such building or hut, and

II. any furniture supplied by the landlord for use in such building or hut or part of such building or hut.

In view of the ratio laid down by the Apex Court in the authorities relied by the Petitioner, lease of a vacant land on which subsequent constructions are being made by the lessee, will not bring the demised property within the meaning of “building” as defined under Section 2(1) (d) of Jharkhand Rent Act, 2011. Accordingly, the suit for eviction will not be maintainable under the provisions of the Jharkhand Rent Act, 2011. Impugned order is accordingly, set aside.

Writ Petition is allowed. Interlocutory Application, if any, is disposed of.