Ram Pratap Sah vs Ayodhya Prasad Srivastava and Others

B.L. Yadav, J.—This is a Defendant''s Second Appeal in a suit for ejectment from the suit premises and for arrears of rent. The Plaintiff-Respondents brought the suit with the averment that Block No. 129 of Madhepura Notified Area Committee under Khata No. 851 belonged to Shri S.N. Banerjee, Advocate, Madhepura and within this block there were two other holdings, which were described as Holding Nos. 1 and 2 containing hutment. Shri S.N. Banerjee settled the suit land at a monthly rent of Rs. 10/- with the Defendant as tenant who used to pay rent to Shri S.N. Banerjee. The Plaintiff purchased 10 kathas of land of Block No. 129 from Shri S.N. Banerjee, including two hutments by a sale deed dated 19.4.1963. The premises bearing holding No. 2 (Schedule 1 of the plaint) has been in occupation of the Defendant from before as a tenant since the time of Shri S.N. Banerjee. As the Defendant was in arrears of rent, he was served with a notice dated 6.5.1963 through the Advocate of the Plaintiff, but to no effect and the Defendant neither paid the arrears of rent nor vacated the suit premises. Even though the suit land was required for a personal necessity, but the same appears to have not been pressed. There was relationship of the landlord and the tenant between the Plaintiff and the Defendants. But the Defendant refused to pay the rent. Further the Plaintiff has a personal necessity also. The suit was accordingly filed.

The defence was total denial and the Defendant denied that he was tenant and alleged that he himself was owner and has built the house himself and that it was never built by Shri S.N. Banerjee or the Plaintiff nor it was let out to him. There was some vacant land in the northern and eastern side. There was an oral settlement of northern and eastern portion of Plot Nos. 4036 and 4036 of Khata No. 851 by the sons of Shri S.N. Banerjee with the Defendant on monthly rent of Rs. 6/- for agricultural and horticultural purposes and that the Defendant himself constructed house in that portion and that Defendant was not a tenant. Both the Courts below have decreed the suit.

The learned Counsel for the Appellant argued at great length and it was contended that the Plaintiff was not owner of the house in question, rather on the basis of an oral settlement from five sons of late A.C. Banerjee the Defendant was owner of the same, and that the sale deed in favour of the Plaintiff was false and fabricated. It was further urged that in case the Plaintiff''s title was disputed by the Defendant-Appellant who set up his own title, the Plaintiff must have paid the Ad valorem Court Fee.

The learned Counsel for the Appellant leaned heavily on Krishna Murari Prasad Vs. Mitar Singh, and Shanti Kumar Jain Vs. M/s Debchand Hansraj of Kishanganj and Others, .

Having scrutinised the submissions of the learned Counsel for the parties the question for determination is as to whether the Plaintiff Respondent must pay the Ad valorem Court Fee and whether relationship of the landlord and tenant existed between the parties, or Defendant-Appellant as owner and whether in view of the first proviso to Section 11 of the Bihar Buildings (Lease Rent and Eviction) Control Act, the Courts below ought to have considered the reasonable requirement of the occupation of the Defendant-Appellant and the Court could pass a decree for partial eviction only.

Shri Ayodhya Prasad Srivastava (Respondent No. 1), however, appeared in person and refuted the submission of the learned Counsel for the Appellant. It was however, urged that the suit was filed for personal need in view of Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (for short "the Act"). Hence the First Appeal from the decree of the trial Court would not be maintainable in view of the procedure contemplated by Section 14(8) of the Act.

As regards the first point whether the Plaintiff-Respondent was bound to pay the Ad valorem Court Fee simply because the Defendant-Appellant, tenant set up his rival title and claim in his own favour on the basis of the oral settlement from the landlord. In such matters, suffice it to say that the nature of the suit decides the forum and also payment of Court fee. The Plaintiff''s suit was a suit for ejectment simpliciter u/s 11(a) and (d) of the Act and the question of ejectment on the ground of personal necessity was just Incidental. The averment of the Plaintiff was that the Defendant was tenant. Consequently in such suit the title of the Defendant was not necessary to be decided. The nature of the suit was to be decided on the basis of the statements made in the plaint. In case the Plaintiff succeeds on the basis of the relationship of the landlord and the tenant, there will be no occasion for the Court below to go into the question of title although the question of title has been raised in the written statement.

Shanti Kumar Jain Vs. M/s Debchand Hansraj of Kishanganj and Others, relied upon by the learned Counsel for the Appellant was a case based on the similar facts. There the learned Single Judge of this Court has held that Defendant''s written Statement cannot decide the nature of the suit or the forum, and in case the Plaintiff succeeds on the basis of the existence of the relationship of the landlord and the tenant, there could be no occasion to compel the Plaintiff to pay the Ad valorem Court Fee. In my humble opinion the ratio in that case does not help the Appellant rather it helps the Respondents.

Reverting to the next question as to whether the Court below could decide the question of partial eviction in view of the proviso to Section 11 of the Act. No doubt the cardinal rule of interpretation is that the main function of the proviso is to carve out an exception to the main enactment. It cannot normally be so interpreted as to set at naught the main enactment. In brief the purpose of proviso may be enumerated thus:

(a) The qualifying or excepting certain provision from the main enactment.

(b) It may entirely change from intendment of the enactment by insisting on certain conditions.

(c) It may be so to the main enactment as to become an integral part of the same.

In that view of the matter the said proviso assumes tenor and colour of the substantive enactment. (See, S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, ; Craies Statute Law, 7th Edition page 208; Odgers on Construction of Deeds and Statute, 5th Edition, page 317; A.N. Sehgal and others Vs. Raje Ram Sheoram and others, ; Rhodde Arban District Council v. Taffvale Railway Company 1909 A.C. 253).

What the legislature intends in the said provision is that in case the Court thinks that reasonable requirement of the Plaintiff can be satisfied by evicting the Defendant from a part of the accommodation and the tenant agrees to such part of the accommodation, the Court can pass a decree for partial eviction. In the present case what is interesting to note is that the Defendant-Appellant had earlier filed a Second Appeal, as has been discussed in paragraph 8 of the trial Court judgment, and the High Court had remanded the matter to the trial Court directing the present Defendant-Appellant to deposit rent at the rate of Rs. 10/- per month from September, 1963 to December, 1981 within a period of six months from the date, i.e. 28.8.1991. The Second Appeal was accordingly remanded on that date. It was open to the Defendant-Appellant to avail of the remedy and to get relief then from the High Court, but he did not do so. This point was not even argued either before the trial Court or before the first appellate Court after remand from this Court. Any way accepting that the Court must have considered it and this Court also exercised the same power in view of Section 107 of the Code of Civil Procedure. In that view of the matter I have considered that suggestion, but as I have put some questions to the Plaintiff-Respondent about the requirement, he said that he would not be satisfied with partial eviction of the Defendant. The Plaintiff also did not agree to any such suggestion nor he expressed any inclination to release a part of the accommodation. Had it been so, it could have been argued on his behalf in the Second Appeal or after remand before the trial Court or the lower appellate Court, but he did not do so. In that view of the matter, I am satisfied that the provision of the said proviso u/s 11 of the Act need not be applied as the needs of the Plaintiff would not be satisfied by evicting the Defendant-Appellant from a part of the accommodation.

Krishna Murari Prasad Vs. Mitar Singh, was a case where the Court considered appropriate the procedure for partial eviction contemplated by the proviso to Section 11 of the Act and the same satisfied the Plaintiff. Hence that case proceeded on different facts. Further in that case the matter was not taken to the High Court and remanded therefrom.

The distinguishing feature of this case is that the earlier Second Appeal was filed by the Defendant-Appellant before this Court, as indicated above. It was open to the Appellant to press for a relief in view of the proviso to Section 11 of the Act. A perusal of the earlier judgment of this Court between the parties, would indicate that neither this Court considered it proper to decide the appeal in view of the concept of partial eviction as contained under the proviso to Section 11, nor it appears that this point was taken or urged on behalf of the Appellant. The statement of lad recorded in the judgment of the Court is taken to be final and conclusive and not open to be contradicted. (See State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, ).

In my opinion, when a case is remanded to the Subordinate Court either in the exercise of power under Order 41 Rule 23 or Section 151 of the Code of Civil Procedure, the suit is re-opened as directed by the Court remanding it, except as to the matters decided expressly or by impliedly in the order of remand. Where an appellate Court remands the matter (as the High Court did when the earlier Second Appeal was filed) for further enquiry or trial, the lower Court has to act within the limits of the remand order. It cannot reopen the findings of the appellate Court. If it does so it would obviously transgress its jurisdiction. (See Balaswaraswami Varu and Another Vs. Mallidi Dorayya and Others, ; Kaluram and Another Vs. Mehtab Bai and Another, ). In the instant case as the effect of the proviso to Section 11 was not considered or referred in the earliest Second Appeal, it appears this Court did not want the appeal to be decided on the basis of partial eviction. In my opinion, this Court is not justified to decide the appeal on the question of partial eviction. I, accordingly, do not find any merit in the submissions of the learned Counsel for the Appellant in this regard.

In this Second Appeal it was question as to whether the Defendant-Appellant was a tenant or not, is a finding of fact based on the appraisal of the evidence on the record. The Defendant failed to make payment of the rent due to the Plaintiff for more than two months. The oral settlement or the oral sale relied upon by the Defendant-Appellant was disbelieved by the Courts below. Obviously the value of the accommodation in question including the construction and the land was more than Rs. 100/-. The Defendant-Appellant claimed oral sale or the oral settlement. Section 17(1)(b) and Section 49 of the Indian Registration Act, 1908 have to be read together. The registration of a document in respect of a property of the value of more than Rs. 100/- In case by that document the right, title and interest were created or extinguished, in that event its registration was compulsory. In the instant case by oral sale or settlement obviously the right, title or interest would be created in favour of the Defendant-Appellant. The oral sale in such matters, accordingly, was not admissible. The Courts below have considered this aspect of the matter and have rejected the claim of the Defendant-Appellant based on oral sale or settlement. The findings of the Courts below being findings of fact, cannot be assailed in this Second Appeal. (See Sardar Singh v. Smt. Krishna Devi and Ors. 1994 JT (3) S.C. 465).

It may be stated that Section 100 of the CPC has been drastically amended by the CPC (Amendment) Act, 1976 and interference can be made only if there is substantial question of law involved. No doubt, it was a rent control matter and the question was whether the Defendant-Appellant was a tenant of the Plaintiff. Even though the Defendant denied that he was a tenant and asserted that he was owner of the land and the accommodation on the basis of oral sale or settlement from the earlier landlord, but that was found not proved by the Courts below. It has been held concurrently that the Defendant-Appellant was a tenant of the Plaintiff and not owner. This was a finding of fact and it cannot be interfered with in Second Appeal, as the same did not involve even a question of law, much less, substantial question of law. (See Rajendra Kumar v. J. Das Kolewala, decided on 10.7.1990 (1990 JT (3) S.C. 197 and Ramchandra Pandurang v. Murlidhar Ram 1990 JT (3) SC 202).

As the appeal does not succeed on the question raised and the submission made by the learned Counsel for the Appellant, consequently I do not think necessary to consider the submission of Mr. Ayodhya Prasad Srivastava (Respondent No. 1) appearing in person, about the scope of Section 14(8) of the Act about the maintainability of the First Appeal by the Defendant Appellant before the lower appellate Court. The appeal is concluded by the findings of fact. Hence there will be no justification for interference in exercise of jurisdiction u/s 100 of the Code of Civil Procedure.

In view of the premises aforesaid this Second Appeal fails and the same is hereby dismissed, but without any order as to costs.