Mahendra Sah vs Chardra Shekhar Purvey

This Second Appeal has been filed against the judgment and decree dated 20.01.2017 passed by Additional District Judge, Rosera, District Samastipur in Title Appeal No. 39 of 1994 confirming the judgment and decree dated 16.07.1994 passed by Munsif, Rosera in Title Suit No. 22 of 1990 whereby the suit has been decreed.

The defendants are appellants in this appeal. The plaintiffs filed the aforesaid Title Suit for declaration of their title to the suit house and also that defendants are only occupier of the suit house for which they are liable to pay arrears of house rent claimed by the plaintiffs as well as a decree for eviction of the defendants in respect of the suit house.

The plaintiffs’ case is that ancestor of plaintiff Nos. 1 to 12, namely, Mukund Purbey acquired properties including land of Khesra No. 3630 from Most. Kanchania and also Khesra No. 3631 along with a house by sale deed on 06.06.1938 and later on when house portion fell down he constructed house over it numbered as (holding No. 6) and the same was let out to defendant No. 1, namely, Halkhori Sah (since dead) on monthly rental of Rs. 25/- who was paying rent to Mukund Purbey till his death and thereafter, to plaintiff No. 1 Satish Purbey. The name of plaintiffs had been entered as owner of the house in question and defendants names were entered only as occupier. Jamabandi is running in the name of plaintiffs ancestor Mukund Purbey and plaintiffs continued paying rent of the land and getting rent receipts. Since March 1984 defendant No. 1 had stopped the payment of monthly rent of the suit house and involved the plaintiffs in various cases.

The defendants petition for opening Khata in his name was dismissed by the concerned authorities.

The defendants have not only became defaulter but they erected certain pucca structure during the pendency of suit also.

The case of the defendants is that Banshi Laheri (their ancestor) came in possession of plot No. 3631 by registered Kabuliat on 01.05.1907 and also taken possession of plot No. 3630 and continued possession on both plots. Holding No. 6 stood in the name of Halkhori Sah and after approval by the municipality on 12.01.1971 defendants had done construction work. It is further case of the defendant that defendants were never tenants of Mukund Purbey nor the house was ever let out to him, so the question of collecting monthly rent does not arise. It is also stated that sale deed of 1938 in favour of Mukund Purbey is fake and not effective and Jamabandi created in his name on that basis is also not correct.

The Trial Court on the basis of pleadings, framed as many as 9 issues including issue No. 6 as to whether a brick walled tile roofed house containing a room along with three verandah and Aangan and a service latrine has been constructed by plaintiffs’ ancestor Mukund Purbey in portions of plot Nos. 3630 and 3631 and whether the same was let out by Mukund Purbey to defendant No. 1 at a monthly house rental of Rs. 25/-per month and whether on death of Mukund Purbey defendant No. 1 continued to be monthly tenant of plaintiffs’ family at the rate of Rs. 25/- per month.

Trial court considering the evidences on the record held that relationship of tenant and landlord receiving monthly rent of Rs. 25/- from the defendant does not stand corroborated. Therefore, it appears to be one of permissible possession of the suit house to the defendant by father of the plaintiff Mukund Purbey may be on terms and conditions decided by him.

The Trial court concluded that plaintiffs’ title over house constructed by their father Mukund Purbey has been established on the basis of oral and documentary evidence but relation of tenant with defendant does not find support in a cogent way.

It is further held that since the defendant has constructed without consent of the plaintiff permanent structure on the suit premises it amounts to the breach of conditions of lease etc. for which he is liable to be evicted from the suit house.

The first appellate court in its finding held that it is not in dispute that the disputed land and house is in possession of defendant first party. On the other hand the plaintiffs title over the disputed land and house constructed by the father Mukund Purbey is established on the basis of oral and documentary evidence. But the relationship of tenant and landlord between the plaintiffs and defendant is not proved by cogent and reliable evidence.

It was further observed that finding of the learned court below is based on evidence as produced by the parties the judgment and decree of the Trial court was confirmed.

It is submitted by learned Senior Counsel for the appellants that judgments and decrees passed by the courts below are perverse as the findings are against the material and evidence on the record and a third case has been made out without pleading of the parties that possession of defendants are permissive. It is further submitted that courts below have failed to consider the evidence of defendants in right prospective.

Having heard learned counsel for the appellants and on perusal of judgment of both trial court and the appellate court, it appears that both the courts below have given concurrent finding on the basis of evidence that plaintiff’s title over the disputed land and house constructed by Mukund Purbey and it is also not in dispute that the disputed land and house is in possession of the defendant 1st party. The relationship of landlord-tenant between the plaintiffs and defendant is not proved by cogent and reliable evidence.

This Court finds no perversity and unreasonableness in the findings by both the courts below which have been recorded on the basis of evidence and in accordance with the principles of law. A concurrent finding of facts based on evidence cannot be disturbed in Second Appeal under Section 100 of the Civil Procedure Code.

In result, it is held that there is no substantial question of law arising for consideration in this appeal which is accordingly dismissed.