Jharkhand High Court
Md. Khurshid Alam And Others vs Ram Bilas Bhagat on 27 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 21 of 2022
Md. Khurshid Alam and others ... ... Appellants
Versus
Ram Bilas Bhagat ... ... Respondent
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CORAM :HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellants : Mrs. Swati Shalini, Advocate
: Mr. Kanishka Deo, Advocate
For the Respondents : Mr. Sudhir Kumar Sharma, Advocate
: Mr. Indu Shekhar Gupta, Advocate
: Mr. Harshit Pradhan, Advocate
—
15/27.03.2025 Heard the learned counsels appearing on behalf of the parties.
2. The matter arises out of eviction suit under Jharkhand Building
(Lease, Rent and Eviction) Control Act, 2000 (hereinafter referred to
as JBC Act). The alleged tenants are the appellants before this Court
and there are concurrent findings recorded by both the learned Courts
with regard to relationship of landlord and tenant and also default in
payment of rent. Consequently, through this appeal the appellants are
challenging the judgment and decree dated 26.02.2022 (decree signed
on 24.03.2022) passed by learned District and Additional Sessions
Judge-I, Godda in Civil Appeal No. 6 of 2018 whereby the appeal has
been dismissed and the judgment and decree dated 21.12.2017 (decree
signed on 17.01.2018) passed by learned Sub-Judge-I, Godda in Title
Eviction Suit No. 1 of 2009 decreeing the suit, has been upheld.
3. At the outset, it has been pointed out by the learned counsel
appearing on behalf of the respondent- landlord that by virtue of
execution of the decree the appellants have been dispossessed.
4. The learned counsel for the appellants does not dispute this
position but has submitted that merely because the appellants have been
dispossessed, the same will not make the case infructuous and
substantial questions of law having been framed in this case, are
required to be answered.
5. This case was admitted vide order dated 06.02.2025 and upon
the submissions made by the learned counsel for the appellants and
upon perusal of the records, the following two substantial questions of
law were framed:
1) Whether the appellants acquired title over the property
by virtue of part performance of agreement of sale and were
put in possession and therefore, whether they were under
any legal obligation to pay rent to the successor in interest
or even to the vendor of the plaintiff?
2) Whether the suit under Bihar Buildings (lease, rent and
eviction) Control Act was itself maintainable where both
the parties were claiming title over the property?
6. Before proceeding to decide the substantial questions of law, it
would be useful to give little factual background, the issues framed and
the findings of the learned trial court and 1st appellate court.
7. The plaintiff filed title eviction suit in connection with the suit
property whose identity is not in dispute and he claimed that he has
purchased the suit property by a registered deed of sale dated
09.03.2006 from the last owner and came in possession of the suit
property. His further case was that the defendants were in need of the
premises for their business, so they approached the plaintiff on the eve
of Durga Pooja 2006 and offered for giving premises on rent, which
was accepted by the plaintiff on 01.10.2006 and the rent was fixed @
Rs.300/- per month. The relationship continued and the defendants paid
the rent but in the month of June, 2008 the plaintiff asked the defendants
to vacate the suit premises on account of personal necessity. Again, the
plaintiff approached the defendants to vacate the suit premises, but the
defendants did not vacate the same and stopped payment of rent from
August, 2008 and evaded payment of rent on one pretext or the other.
Consequently, a legal notice was sent to the defendants on 21.01.2009
and ultimately, when no response was received and the defendants did
not vacate the suit premises, the suit for eviction was filed on the ground
of default in payment of rent as well as personal necessity and also for
arrears of rent.
8. The defendant nos. 1 and 2, who are full brothers, appeared and
filed written statement objecting to the maintainability of the suit stating
that there was no valid cause of action and also raised the point of
limitation. However, it was their specific case that they were in
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possession of the property since 1966-67 and it was wrong to say that
the suit property was purchased by the plaintiff by virtue of registered
deed of sale by the last owner. It was asserted that the sale-deed was
forged and fabricated and the entire incident during Durga Pooja as
asserted by the plaintiff was denied. The relationship of landlord and
tenant was completely denied. It was also asserted that the plaintiff
never approached the defendants to vacate the suit premises, rather the
defendants were in possession of the suit premises on their own right
by virtue of an agreement of sale executed by Tarni Prasad Sah dated
15.12.2003. It was also asserted that the defendants never paid rent to
the plaintiff. The defendant nos. 1 and 2 had filed two different written
statements but both were on the same lines. It was also stated in the
written statement of the defendants that the suit for specific
performance of contract was also pending.
9. The learned trial Court framed the following issues for
consideration:
“I. Is the suit as framed maintainable?
II. Has plaintiff valid cause of action for the suit?
III. Whether plaintiff is absolute owner of the suit premises?
IV. Whether relationship of tenant and landlord exists?
V. Whether plaintiff have bonafide requirement of suit
premise?
VI. Whether the partial eviction of the suit premises fulfil the
demand and necessity of the plaintiff?
VII. Is plaintiff entitled for relief as claimed?”
10. The oral and documentary evidences were adduced on behalf of
the plaintiff . The sale-deed dated 09.03.2006 was marked as Exhibit- 1
along with other exhibits regarding tax receipts and rent receipts and
also order of mutation. So far as the defendants are concerned, number
of documentary evidences were exhibited including the rent agreement
dated 05.12.1977 (Exhibit-A), rental agreement dated 10.12.1990
(Exhibit-B), affidavit of Tarni Prasad dated 08.04.1999 (Exhibit-C),
sale agreement dated 15.12.2003 (Exhibit-D) and electricity bills
(Exhibit-E to E/2) to show that they were in possession of the property
since long. The certified copy of the written statement of Most. Santi
Devi filed in Title Suit No. 17 of 2006 was also exhibited as Exhibit-F.
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11. The learned Trial Court considered the materials on record, both
oral and documentary, and while deciding the issue nos. III and IV held
that there was relationship of landlord and tenant between the parties
and other issues were also decided in favour of the plaintiff. The learned
1st appellate Court also recorded concurrent finding.
12. However, the specific case of the appellants before this Court is
that there was an intricate issue of title and each were claiming title over
the property. Such an issue could not have been decided by the learned
Court under JBC Act, as eviction proceedings under tenancy laws
dealing with landlord tenant relationship are summary proceeding. The
learned counsel for the appellants submits that the title could be decided
only through a properly constituted title suit. For that purpose, the
learned counsel has relied upon the judgment passed by the Hon’ble
Supreme Court reported in (2002) 1 SCC 90 (Rajendra Tiwary Vs.
Basudeo Prasad and Another) (Paragraphs 14 to 17). The learned
counsel has also relied upon the judgment passed by the Hon’ble Patna
High Court reported in 1991 SCC OnLine Patna 140 (Deepak Kumar
Verma Vs. Ram Swarup Singh) (paragraphs 63 and 68) and has
submitted that Small Causes Court are required to go into the question
of title only incidentally and in case of intricate question of title, the
plaint is required to be returned for presentation to a Court having
jurisdiction to determine the title. Paragraphs 63 and 68 of the aforesaid
judgment are quoted as under:
” 63. In this case, it may be noticed that the plaintiff’s case had
been that it is he who inducted the defendant’s predecessor in
interest as a tenant; whereas the case of the defendant is that
despite execution of the deed of sale by their predecessor, Tip
Narayan Singh, to Laxman Ram by reason of purpoted deed of
sale date 4.12.1968, they continued to possess the suit premises
in their own right. The issue, therefore, which arises for
consideration was as to whether the defendants came in
possession of the suit premises upon their induction as tenants,
by the plaintiff, when he purchased the lands in-question inter
alia by reason of deeds of sale dated 3.9.1975 executed by
Laxman Ram in his favour as also by reason of two other deeds
of sale from co-shares of Tip Narayan Singh as mentioned
hereinbefore, or the defendant had been continuing in possession4
without any interruption whatsoever. The learned court below
did not address himself to this vital aspect of the matter at all.
68. In Budhu Mal. v. Mahabir Prasad reported in AIR 1988
Supreme Court 1772, the Supreme Court held:–
“It is true that S. 23 does not make it obligatory on the
Court of Small Causes to invariably return the plaint
once a question of title is raised by the tenant. It is also
true that in a suit instituted by the landlord against his
tenant on the basis of contract of tenancy a question of
title could also incidentally be gone into and that any
finding recorded by a Judge Small Causes in this behalf
could not be res judicata in a suit based on title. It
cannot, however, be gainsaid that in enacting S. 23 the
Legislature must have had in contemplation some cases
in which the discretion to return the plaint ought to be
exercised in order to do complete justice between the
parties. On the facts of the instant cases, we feel that
these are such cases in which in order to do complete
justice between the parties the plaints ought to have been
returned for presentation to a court having jurisdiction
to determine the title.”
13. Learned counsel for the appellants has also relied upon the
judgment reported in (2010) 5 SCC 401 (S. Kaladevi Vs. V.R.
Somasundaram) (paragraphs 12 and 16) to submit that even an
unregistered agreement of sale i.e. Exhibit-D is an admissible piece of
evidence and therefore, the learned Courts have wrongly relied upon
the provisions of section 17 and 49 of the Registration Act and they
ought to have relied upon the agreement to hold that even the defendants
had an appropriate claim of title over the property.
14. Learned counsel for the appellants has also submitted that the
case of the plaintiff that they had inducted the defendants as tenant in
the year 2006 was prima facie not established.
15. With regard to the 1st substantial question of law, the learned
counsel for appellants has submitted that the agreement of sale being an
admissible piece of evidence and in view of the fact that the defendants
were already put in possession by virtue of the agreement of sale, there
was no obligation on the part of the defendants to pay rent to the
plaintiff and consequently, the substantial question of law is fit to be
answered in favour the appellants – defendants and against the
respondent – plaintiff.
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16. With regard to the 2nd substantial question of law, the learned
counsel for the appellants has submitted that in view of the aforesaid
facts and circumstances, the suit under JBC Act was itself not
maintainable as both the parties were claiming title over the property.
The plaint ought to have been returned and the parties should have been
relegated for filing a regular suit for declaration of title.
17. The learned counsel for the appellants has also submitted that the
vital aspect in the present case was that the father of the defendants was
in possession of the property since 1966-67 and this aspect of the matter
has not at all been considered by the learned Courts and by virtue of this
fact the entire claim of the plaintiff that they had inducted the
defendants as tenant in the year 2006 is falsified.
18. The learned counsel appearing on behalf of the respondent –
plaintiff, on the other hand, has opposed the prayer and has submitted
that so far as the finding with regard to landlord -tenant relationship is
concerned, there are concurrent findings based on appreciation of oral
and documentary evidences on record and no substantial question of
law has been framed on this point. He has also submitted that there is
no scope for entering into such dispute as to whether there is landlord-
tenant relationship between the parties considering the contours of the
questions of law framed which to be decided by this Court.
19. The learned counsel for the respondent has further submitted that
so far as the agreement of sale which has been relied upon by the
defendants i.e. Exhibit-D which is of the year 2003 is concerned, the
same is admittedly an unregistered document.
20. He has submitted that the 1st substantial question of law relates
to part performance of agreement of sale and the defendants having
been put in possession, the same is essentially relatable to section 53A
of Transfer of Property Act. He submits that after 2001, all the
agreement of sale on the basis of which a person can claim protection
under part performance of contract under section 53A of Transfer of
Property Act are required to be compulsorily registered. He has also
referred to section 17(1A) of the Registration Act and has submitted
that introduction of the said sub-section in Registration Act is
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simultaneous and corresponding to the amendment in Section 53A of
Transfer of Property Act and there is a clearer mandate that for the
purposes of seeking relief pursuant to possession under part
performance of contract, unregistered agreement of sale cannot be
relied upon . He has submitted that unregistered agreement of sale can
be looked into for any other purpose and in any other nature of
litigation, even in a suit for specific performance of contract, but so far
as the claim of possession on the basis of part performance of contract
is concerned, the unregistered agreement of sale is clearly inadmissible
in evidence. Consequently, the claim of title of the defendants by virtue
of part performance of contract in terms of unregistered agreement of
sale of the year 2003 cannot be sustained in the eyes of law.
Accordingly, the defendants did not even have any prima facie title with
regard to the property involved in the present case.
21. He has also submitted that merely because suit for specific
performance of contract is pending, the same by itself will not give title
to the defendants. For that purpose, the learned counsel for the
respondents has relied upon section 54 of the Transfer of Property Act
and has submitted that by virtue of agreement, the property does not
stand transferred.
22. The learned counsel for the respondent has relied upon the
judgment passed by the Hon’ble Supreme Court reported in (2023) 7
SCC 361 (Ghanshyam Vs. Yogendra Rathi) and has referred to
paragraph 9 of the said judgment, which is quoted as under:
“9. No doubt, agreement to sell is not a document of title or a
deed of transfer of property by sale and as such, may not confer
absolute title upon the respondent-plaintiff over the suit
property in view of Section 54 of the Transfer of Property Act,
1882, nonetheless, the agreement to sell, the payment of entire
sale consideration as mentioned in the agreement itself and
corroborated by the receipt of its payment and the fact that the
respondent-plaintiff was put in possession of the suit property
in accordance with law as is also established by the possession
memo on record, goes to prove that the respondent-plaintiff is
de facto having possessory rights over the suit property in part-
performance of the agreement to sell. This possessory right of
the respondent-plaintiff is not liable to be disturbed by the
transferer i.e. the appellant-defendant. The entry of the
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appellant-defendant over part of the suit property subsequently
is simply as a licensee of the respondent-plaintiff. He does not
continue to occupy it in capacity of the owner.”
23. The learned counsel has also relied upon the judgment passed by
the Hon’ble Punjab and Haryana High Court which is reported in 2011
SCC OnLine P&H 5681 (Mool Chand Mundhra Vs. Smt. Indu Bala)
and has submitted that it has been held as under:
“A bare perusal of the aforesaid provision makes it manifestly
clear that such an unregistered agreement, vide which possession
has been delivered, shall have no effect for the purpose of Section
53-A of the Transfer of Property Act (in short – the T. P. Act). In
other words, such an unregistered agreement cannot be used to
take benefit of Section 53-A of the T. P. Act. However, Section
17(1-A) of the Act does not make such an unregistered agreement
completely null and void. This provision does not prohibit user of
such an agreement for any purpose except for the purpose of
Section 53-A of the T. P. Act. Consequently, suit on the basis of
such an unregistered agreement for specific purpose thereof is
certainly maintainable, although such an agreement cannot be
used as defence in terms of Section 53-A of the T. P. Act. Judgment
in the case of Gurbachan Singh (supra) is completely
distinguishable on facts.”
24. The learned counsel for the respondent has further submitted that
so far as the 2nd substantial question of law is concerned, it is not in
dispute that the Court could have gone into the prima facie title of
landlord and tenant. For this, he has also relied upon the judgment
reported in (2002) 1 SCC 90 (Rajendra Tiwary Vs. Basudeo Prasad
and Another) which has also been relied upon by the learned counsel
for the appellants and has submitted that the case is clearly
distinguishable in facts.
25. Arguments concluded.
26. As the Court’s time is over, post this case for further dictation
tomorrow i.e., on 28th March 2025 to be taken up at 02.15 p.m.
(Anubha Rawat Choudhary, J.)
Pankaj
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