Md. Mukhtar Ahmad vs Manjur Ahmad And Ors

Sanjay Kumar Dwivedi, J

Heard Mr. J.P. Jha, learned senior counsel appearing for the appellant and Mr. P.A.S Pati, learned counsel for the respondents.

Being aggrieved with the judgment dated 04.09.2015 and decree dated 19.09.2015 passed in Eviction Appeal No 12 of 2011 by the learned District Judge-V, East Singhbhum Jamshedpur, whereby Eviction Appeal No. 12 of 2011 filed by this appellant has been dismissed and affirmed the judgment dated 31.03.2011 and decree dated 04.04.2011 passed in Eviction Suit No. 17 of 2006 the appellant has preferred this appeal.

The case of the plaintiff before the trial Court in Eviction Suit No. 17 of 2006 is that the schedule of the property was originally allotted to late Zamiruddin, S/o late Abdul Gaffoor by Tata Iron & Steel Company Limited (TISCO Ltd.). The said late Zamiruddin let out the suit premises to late Jahiruddin, father of the defendant on a monthly rent of Rs. 400/- apart from electricity charges. After the death of the Jahiruddin in the year 1995, the rent of the suit premises was being paid by his son Mukhtar Ahmad to the husband of the plaintiff No.1(now deceased) on the death of his father at the rate of Rs. 400/-. It was further case of the plaintiff that the said Mukhtar Ahmad stopped the payment of rent to the plaintiff's father in the month of July, 2002, when the plaintiff's father requested for enhancement of rent of Rs. 500/- per month. It was further pleaded that rent of the suit premises was paid till June, 2002. The plaintiff's father requested the defendant Mukhtar Ahmad for enhancement of rent from Rs. 400/- per month to Rs. 500/- per month. It was further case of the plaintiff's that the defendant fabricated the document for agreement for sale in order to grab the property and stopped paying rent to Zamiruddin. The said Zamiruddin died in the month of October, 2004 at Jamshedpur. The plaintiffs have further pleaded that the son of Shamsher Ali @ Laddan S/o Manzoor Ahmed (plaintiff No.2) was unemployed and said Shamsher Ali @ Laddan wants to start stationary business in the suit premises, therefore, plaintiffs requested the defendant to vacate the suit premises, but the defendant lastly refused to vacate the suit premises in the month of December, 2005, on this ground the Eviction Suit was filed by the plaintiff.

The case of the defendant before the court below was that the plaintiff's suit is not maintainable and plaintiffs have got no cause of action for this suit. The suit is also barred by law of limitation and under the principle of waiver, estoppel and acquiescence. The suit is also barred by non-joinder and mis-joinder of necessary parties. It is also pleaded that there is no relationship between the plaintiffs and defendant and the owner and tenant. Therefore, the suit of the plaintiff is not maintainable under the provision of Building Act. Considering the pleadings of the rival sides the court below framed the issue for adjudication.

The learned trial Court examined the witnesses adduced on behalf of parties and came to the finding that the suit as framed is maintainable and plaintiffs have got a valid cause of action for this suit and suit was decreed on contest. The defendant was directed to vacate the suit premises and hand over the vacant possession of the suit premises to the plaintiffs within two months from the date of passing of the order, failing which the plaintiffs are entitled to execute the same by the process of law.

Aggrieved with this judgment and decree of the trial Court the defendant filed Eviction Appeal No. 12 of 2011 which was dismissed by the judgment dated 04.09.2015. Aggrieved with this judgment the appellant has filed this Second Appeal before this Court..

Mr. J.P. Jha, learned senior counsel appearing for the appellant submits that the plaintiffs themselves were a lease holder and lease holder cannot be said to be owner of that property. He further submits that the defendant has never paid any rent to the plaintiff and in that view of the matter, the defendant has no relationship with the landlord and tenant. He further submits that substantial question of law is involved in this second appeal. He further submits that on the similar facts and circumstances the substantial question of law was framed in the case of Ram Awtar Singh Vrs. Santosh Kumar Gupta reported in 2014(4) JBCJ 3(HC) and also submits that in view of this judgment this second appeal is fit to be admitted on the same substantial question of law, which was framed in the case of Ram Awtar Singh (Supra).

Per contra Mr. P.A.S. Pati, learned counsel appearing for the respondents submits that this was not the question in the court below either in the Eviction Suit nor in the appeal and new fact is being argued before this court in the second appeal which cannot be entertained in the second appeal. He further submits that the defendant/appellant is challenging the ownership of plaintiff which was not done in the court below or before the appellate court. He further submits that eviction has already been effected on 17.04.2016 and decree has already been satisfied.

In the above facts and circumstances the reference made in the case of Keshar Bai Vrs. Chhunulal reported in (2014)11 SCC 438

It is well settled by a long line of judgments of this Court that the High Court should not interfere with a concurrent finding of fact unless it is perverse. (See Deep Chandra Juneja, Yash Pal and Firojuddin.) In this case, for the reasons which we shall soon record, we are unable to find any such perversity in the concurrent finding of fact returned by the courts below warranting the High Court's interference.

A similar question fell for consideration of this Court in Bhogadi Kannababu. In that case it was argued that the landlady was not entitled to inherit the properties in question and hence could not maintain the application for eviction on the ground of default and sub-letting under the A.P. Tenancy Act. This Court referred to its decision in Tej Bhan Madan v. Addl. District Judge in which it was held that a tenant was precluded from denying the title of the landlady on the general principle of estoppel between the landlord and the tenant and that this principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. Section 116 of the Evidence Act is clearly applicable to such a situation. This Court held that even if the landlady was not entitled to inherit the properties in question, she could still maintain the application for eviction and the finding of fact recorded by the courts below in favour of the landlady, was not liable to be disturbed. The position on law was stated by this Court as under: (Bhogadi Kannababu case, SCC p. 538, para 19)

"19. In this connection, we may also point out that in an eviction petition filed on the ground of sub-letting and default, the court needs to decide whether relationship of landlord and tenant exists and not the question of title to the properties in question, which may be incidentally gone into, but cannot be decided finally in the eviction proceeding."

This Court in Mohd. Nooman case clarified that ordinarily it is true that in a suit for eviction even if the court goes into the question of title it examines the issue in an ancillary manner and in such cases (which constitute a very large majority), any observation or finding on the question of title would certainly not be binding in any subsequent suit on the dispute of title. This Court further clarified that the case with which it was dealing fell in an exceptional category of very limited number of cases. Thus, in our opinion, no parallel can be drawn from Mohd. Nooman. In that case issue of title was framed. In the instant case issue of title was not even framed. Mohd. Nooman arose out of exceptional facts and must be restricted to those facts.

In view of the judgment of the Hon'ble Supreme Court in the case of Keshar Bai (Supra) this court finds that it is true that in a suit for eviction even if the court goes into the question of title, it examines the issue in an ancillary manner and in such cases any observation or finding on the question of title would certainly not be binding in any subsequent suit on the dispute of title. In the instant case the issue of title was not even framed.

There is concurrent finding of the facts reported by the courts below and in view of the well settled proposition of law so far as the second appeal is concerned, this court finds that there is no substantial question of law to admit the appeal and accordingly, this second appeal stands dismissed.

Since the appeal is dismissed, the connected interlocutory application (I.A. No2339 of 2016) also stands dismissed.