Patna High Court – Orders
The State Of Bihar Through The Collector … vs Rai Harshwardhan Prasad on 19 June, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.274 of 2015
======================================================
1. The State Of Bihar Through The Collector Gaya
2. The Headmaster, Haran Chandra High English School, Kiranighat, Gaya,
District Gaya.
3. The District Education Officer, Gaya, District Gaya.
... ... Appellant/s
Versus
Rai Harshwardhan Prasad, Son of Shri Rai Bageshwari Prasad, Resident of
Mohalla- Kiranighat, Gaya, Pragana and Thana -town Gaya, police Station
Kotwali, District Gaya.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Virendra Kumar, AC to GP-10
Mr. Kameshwar Pd. Gupta, Advocate
For the Respondent/s : Mr. Jitendra Kishore Verma, Advocate
Mr. Anjani Kumar, Advocate
Mr. Ravi Raj, Advocate
Mr. Shreyash Goyal, Advocate
Mr. Abhsihek Kr. Srivastava, Advocate
Ms. Sweta Raj, Advocate
Ms. Kumari Shreya, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
ORAL ORDER
14 19-06-2025
Re: I.A. No. 9645 of 2015
This interlocutory application has been filed under
Section 5 of the Limitation Act for condonation of delay in
filing the instant Second Appeal.
2. This Second Appeal has been filed against the
judgment and decree dated 21.06.2014 passed by learned Adhoc
Additional District Judge-4, Gaya in Title (Eviction) Appeal No.
33 of 1997 / 43 of 2013.
3. Learned counsel for the appellants submits that
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copy of the judgment and decree under appeal was made
available to the Director, Secondary Education, Bihar, Patna by
the District Education Officer, Gaya vide letter dated
21.08.2014 seeking permission to prefer appeal against the
judgment and decree under appeal and accordingly, the file was
processed in the office of the Director of Secondary Education
and after passing through various stages, the file was endorsed
to the panel lawyer of the department to prepare grounds of
appeal for filing Second Appeal. The panel lawyer prepared the
ground of appeal and submitted the same whereafter the file was
again passed through various stages and then sent to the law
department through the Principal Secretary, Education
Department on 15.05.2015 which was subsequently forwarded
to the learned Advocate General, Bihar by the Legal
Remembrancer on 20.05.2015. The learned Advocate General
returned the file along with his opinion to the Law Department
on 25.06.2015 and the same was received in the Education
Department on 30.06.2015. After receipt of the opinion, the file
was again endorsed to panel lawyer of the department to prepare
limitation petition in the matter, who prepared and submitted the
file on 09.10.2015 and thereafter the file was endorsed to
concerned law officer who prepared the appeal along with
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limitation petition for condonation of delay in filing the Second
Appeal. Thereafter, the instant appeal was filed on 11.12.2015.
4. Learned counsel for the appellants submits that the
delay has been caused in filing the present appeal because of
required approval from the concerned authorities which has
consumed much time whereas there has been no deliberate or
intentional laches on their part. In the interest of justice, the
delay in filing the present appeal be condoned.
5. On the other hand, learned counsel for the
respondent fairly submitted that the instant Second Appeal may
be heard on merit and has not raised any objection with regard
to the condonation of delay.
6. Considering the aforesaid submissions made by the
parties, it is apparent from the record that the time has been
consumed because of official formalities to challenge the
impugned judgments and decree which seems to be genuine.
7. The delay in filing the instant Second Appeal is
condoned.
8. Accordingly, I.A. No. 9645 of 2015 is allowed.
9. Heard Mr. Virendra Kumar, AC to GP-10 appearing
on behalf of the appellants and Mr. Jitendra Kishore Verma,
appearing on behalf of the respondent.
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10. This Second Appeal has been filed against the
judgment and decree dated 21.06.2014 passed in Title (Eviction)
Appeal No. 33 of 1997 / 43 of 2013 by the learned Adhoc
Additional District Judge-IV, Gaya, whereby the judgment and
decree dated 31.03.1997 passed by the learned Sub-Judge-II,
Gaya, in Eviction Suit No. 2 of 1988 / 91 of 1997 has been
reversed.
11. The matter arises out of Eviction Suit No. 2 of
1988 / 91 of 1997 which was filed by the sole plaintiff/
appellant/respondent for eviction of the appellants on the ground
of default in payment of rent and also for arrears of rent
amounting to Rs. 7200/- for 36 months from May 1984 to April
1987 at the monthly rental of Rs. 200/- per month. The
defendant/respondent/appellants contested the said suit
challenging the plaintiff’s title over the suit premises.
12. The said suit was dismissed by the learned Sub-
Judge-2, Gaya vide judgment and decree dated 31.03.1997
which was challenged by the plaintiff in Title (Eviction) Appeal
No. 33 of 1997 / 43 of 2013.
13. In order to determine the matter in its correct
perspective, it is necessary to briefly restate the case of the
plaintiff. The suit premises belongs to the plaintiff which stands
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recorded in the office of Municipal Corporation. It is further
pleaded that the suit premises continued in the tenancy of Haran
Chandra High English School for last several years on monthly
rental of Rs. 200/-. The said school was taken over by the State
Government and the tenancy continued as per Gregorian
calendar. The plaintiff was having inclination for proliferation of
education and the defendants taking advantage of the sentiments
of the plaintiff, stopped payment of rent resulting in
accumulation of huge amount of arrears of rent against the
defendants by lapse of much more than three years. The
defendants were taking excuse of want of funds or other
commitments despite service of notice dated 24.02.1987 sent to
them through registered post. The rent was payable at the end of
each and every month, but they failed to do so even after
acknowledging their liability in respect of payment of rent. The
result, thereof, was that the arrears of rent accumulated till May,
1984 became time barred. It is further pleaded that the plaintiff
considered it necessary to sue them (defendants) for eviction on
the ground of default and recovery of arrears of rent legally
recoverable and sent a registered advocate notice under Section
80 of the Code of Civil Procedure to the defendants as stated in
the plaint which has been duly served to the defendants. The
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statutory period of notice expired but the plaintiff’s grievance
was not redressed in any manner. This gave cause of action for
the suit to the plaintiff for recovery of arrears of rent being due
from May 1984 up to April, 1987.
14. On summon, the defendants appeared and filed
their common written statement and contested the suit. After
filing the written statement, a drastic amendment was sought in
their written statement challenging the plaintiff’s title over the
suit premises which stood allowed. However, the plaintiff
vehemently opposed the claim of the defendants by way of a
supplementary pleadings countering the challenge to his title.
Thus, the plaintiff’s further case with respect to his ownership of
the suit premises is that one Upendra Nath Basu and Late Muk
Sada Das Gupta (cousin of Upendra Nath Basu) got the property
including the suit premises purchased through execution of
decree passed in Mortgage Suit No. 420 of 1899 by the Court of
Sub-Judge-2, Gaya each having equal share. The said auction
purchasers got land auction sale certificate in the execution
proceeding of the said mortgaged suit on 22.02.1902. Later on,
Muk Sada Das Gupta sold his share acquired under the sale
certificate to Upendra Nath Basu through the registered sale
deed dated 15.10.1908 and thereby Upendra Nath Basu became
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absolute owner of the property. It is further case of the plaintiff
that after the sale deed of 15.10.1908, the grand father of the
plaintiff purchased the property of sale deed of 1908 including
the suit premises from Upendra Nath Basu vide registered sale
deed dated 17.03.1918. It is further contended that a clerical
mistake in sale deed dated 17.03.1918 occurred with respect to
the plot no. 10967 mentioned wrongly though the boundaries,
holding number, ward number, mohalla, road all were correctly
mentioned of plot no. 10957. Further, the plaintiff denied any
repairs, construction or reconstruction by the defendants of the
suit premises as such, the adjustment as claimed by the
defendants of the cost of repair / construction or reconstruction
as against the arrears of rent were vehemently denied.
15. On the other hand, the defendants by their
common written statement made out a case that founder of the
school was Yogendra Nath Basu, son of Late Haran Chandra
Basu. In the year 1883, the school was started in the name of
Sahebganj H.E. School, Gaya. Subsequently, Haran Chandra
Basu expressed his desire to change the name of the school as
Haran Chandra High English School and for which he agreed
and consented to donate land of Municipal Survey plot no.
10957. The said land and house structures etc. were acquired in
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the name of Ojendra Nath Basu, son of Haran Chandra Basu.
The Said Ojendra Nath Basu died in his very childhood and
thereafter, his father Haran Chandra Basu became absolute
owner of the property including the suit premises. In the year
1915, the name of Sahebganj High English School was changed
as Haran Chandra High English School and the said change of
name of the school was recognised by the Calcutta University.
After the death of Yogendra Nath Basu, Rai Bindeshwar Prasad,
father of Rai Bageshwari Prasad, Ex. landlord of the area by
manoeuvering the entire things, somehow came in control of
school properties, although having no title to the same and
started interfering in the management of the school. Sometime
in the year 1919, the said Rai Bageshwari Prasad got recognized
the school under Patna University as Rajkiya School. The
defendants also pleaded that since none from the family of Late
Haran Chandra Basu is available or alive, the defendants are not
in a possession to produce any document except the document
maintained by the Municipal Corporation and other
departments.
16. Further case of the defendants is that originally the
tenancy was created on the monthly rental of Rs. 75/- of the
entire land and holdings. The school was taken over on
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02.10.1980 but before this, the affairs of the school were
managed and controlled by a governing body, of which the
father of the plaintiff, Late Rai Bageshwari Prasad was the
President and the said governing body was dealing with the
tenancy affairs including the payment of rent. It is also
contended that major portion of area under the occupation of the
school was sold away by Late Bageshwari Prasad and rent of
the suit premises was also enhanced from Rs. 75 to Rs. 200/- per
month since 31.07.1973 by the Managing Committee of the
School. It is further pleaded that the Managing Committee of
the School in its meeting dated 31.07.1973 passed a resolution
to the effect that the owner shall construct some new rooms and
shall also oversee repairs in the building and for other amenities
like water, toilet etc. and on such fulfillment, the enhanced rent
of Rs. 200/- per month would be made. This was done in the full
knowledge of the father of the plaintiff, Late Rai Bageshwari
Prasad. It is further pleaded that all the liabilities in respect of
the tenancy and payment of rent stood terminated in view of
taking over of the school and as such, the plaintiff was not
entitled to file case against the school for eviction or realisation
of arrears of rent. The defendants asserted that due to
dilapidated condition of the suit premises, the defendant
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invested Rs. 38,584.75 for reconstruction of the building,
another amount of Rs. 20,165/- with the prior consent of the
landlord and on this score the defendants made out a case for
adjustment of the arrears of rent towards the money invested or
incurred in construction of suit premises. The money incurred
towards the construction or repair of the suit premises was done
with the consent of the father of the plaintiff, Late Rai
Bageshwari Prasad and as such, the plaintiff is not entitled to
claim for arrears of rent, if any. Therefore, the plaintiff is not
entitled to any relief whatsoever and on this score, dismissal of
the suit has been prayed.
17. After hearing the parties and considering the
materials on record, the learned Adhoc Additional District
Judge-4, Gaya allowed the said appeal vide judgment and
decree dated 21.06.2014 setting aside the judgment and decree
of the trial court and allowing the claim and suit of the plaintiff.
Against the aforesaid judgment and decree of the learned court
of appeal below, the instant Second Appeal has been filed.
18. After hearing the submissions made on behalf of
the parties and after perusal of materials on record including the
judgment of the learned courts below, it appears that the learned
court of appeal below which is the final court of facts, after
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considering the pleadings of the parties and the evidence
adduced by them, came to clear finding that before taking over
of the suit (on 02.10.1980), the said school was being run by the
managing committee. This fact was admitted by the defendants
in their pleadings that originally the tenancy was created on the
monthly rental of Rs. 75/- only which was enhanced from Rs.
75/- to Rs. 200/- per month since 31.07.1973. The said
pleadings mentioned in paragraph nos. 7 to 10 in the written
statement of the defendants established that the said school was
running on the tenanted suit premises. Moreover, D.W.-3
admitted in his cross-examination in paragraph 6 that the
plaintiff is the landlord of the suit premises and also accepted
the relationship of landlord and tenant. It is also held that D.W.-
24 in his evidence in paragraph no. 52 accepted that Ojendra
Nath Basu did not execute any gift in favour of the said school.
The defendants did not file any document with regard to the
Municipal plot no. 10957 which shows that the said plot was
acquired by Ojendra Nath Basu. It is settled law that once tenant
accepted the tenancy of the plaintiff, the defendants could not
challenge the same.
19. The school was taken over by the Government on
02.10.1980 under Bihar Non-Government Secondary School
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(Taking Over Management and Control) Act, 1981 (hereinafter
referred as ‘the Act’). The land and the building in view of the
Act was vested with the Government. The learned appellate
court after perusing Section 3 and 4 of the said Act held that if
school was running at the time of taking over under tenancy, the
relationship of landlord and tenant would remain unaltered with
the State also. Therefore, the State Government becomes the
tenant of the landlord. However, in the present case, Haran
Chandra High School was tenant before taking over the said
school by the State Government. Therefore, the possession of
the said school by the State has the status of a tenant. Therefore,
the suit property was not taken over by the Government rather
only the management of the Haran Chandra High School was
taken over by the State of Bihar on 02.10.1980 under the Act. It
has also been held that although the Government had issued a
notification under Section 4 of the Land Acquisition Act
(Exhibit-14) for acquiring the land for the said school, meaning
thereby, the plaintiff is the owner of the suit premises. The
notification was subsequently withdrawn in view of the
direction of the Collector. It shows that other suitable land for
the said school was to be acquired as suggested by the Collector.
It is apparent from Exhibit-13 and Exhibit-14 that after taking
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over the said school by the State Government, the State
Government itself admitted that land in dispute belonged to the
plaintiff. It is also apparent from Exhibit-10 i.e. notice dated
16.08.1990 that the ownership of the plaintiff has been admitted.
It is further noted that 1.37 acres land was acquired by the State
Government for Haran Chandra High School vide Land
Acquisition Case No. 267 of 1994 (Ext. 19). It also appears
from Exhibit-20 that other schools which were taken over by the
State Government were being run in tenanted premises.
Therefore, it has been held that after taking over vide
notification dated 02.10.1980, the relationship of landlord and
tenant between the plaintiff and defendants is established.
20. So far the question of adjustment as pleaded by
the defendants to the cost of repair works as against the arrears
of rent is concerned, the said claim has not fulfilled the
requirements of Section 9 of The Bihar Buildings (Lease, Rent
and Eviction) Control Act (hereinafter referred as ‘the B.B.C.
Act‘). The defendants did not produce any notice before the
court as required under Section 9 of the B.B.C. Act. The
resolution of Managing Committee of said school was passed on
31.07.1973 with regard to repairing works of the school
building and also resolved that the said copy of the resolution
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was sent to the plaintiff landlord. From resolution dated
20.10.1973 mentioned in Proceeding Register at page 46
(Exhibit-G) reveals that in view of Resolution dated 31.07.1973,
the repair works were done by the landlord. There is no
document available on record to show that with the consent of
the plaintiff, the repair works were done by the defendants. It is
also upheld that no notice was sent by the defendants to the
plaintiff for adjustment of amount incurred in construction /
repair of the said premises. If any expenses towards
repair/construction of the suit premises incurred without the
consent of the plaintiff or without the notice to the plaintiff, no
question of automatic adjustment arises. It appears from
Exhibit-9A i.e. letter of Headmaster dated 02.12.1976 that the
Headmaster and the Secretary of the said Managing Committee
of the said School (Exhibit-C) that no rent was paid from
December 1972 to November, 1976 at the rate of Rs. 200/- per
month. Therefore, the plaintiff is legally entitled for recovery of
rent for three years from filing of the suit while the defendants
were in default in payment of rent after December, 1972.
21. After considering the aforesaid findings on the
basis of materials adduced by the parties especially the
defendants, the learned appellate court below specifically found
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that the defendants were defaulter in payment of rent.
22. So far the point raised by the appellants that in
view of provisions of Section 3 and 4 of the Act the building of
the school vested in the State and as such, the status of erstwhile
school (tenant) merged with status of the absolute ownership of
the State, the relationship of landlord and tenant stood
terminated with effect from 02.10.1980 and the State was not
liable to pay rent is concerned, to appreciate the matter and for
determination of points raised by the appellants in this appeal, it
is important to go through the relevant Sections 3(1), 3(2) &
4(1) of the Act, which are as follows:-
“3. jkT; ljdkj }kjk vjktdh; ek/;fed
fo|ky;ksa dk izcU/k ,oa fu;a=.k xzg.k fd;k tkuk & ¼1½
fcgkj ek/;fed f’k{kk cksMZ vf/kfu;e] 1976 ¼fcgkj vf/kfu;e
25] 1976½ rFkk fcgkj ek/;fed f’k{kk cksMZ ¼f}rh; la’kks/ku½
v/;kns’k] 1980 ¼fcgkj v/;kns’k la[;k 82] 1980½ ds v/khu
fcgkj ek/;fed f’k{kk cksMZ }kjk LFkk;h] vkSicaf/kd ;k
vkaf’kd :i ls ekU;rk izkIr lHkh vjktdh; ek/;fed fo|ky;ksa
¼/keZ vFkok Hkk”kk ds vk/kkj ij jkT; ljdkj }kjk ?kksf”kr
vYila[;d ek/;fed fo|ky;ksa rFkk jkT; ljdkj }kjk ekU;rk
izkIr dsUnz&pkfyr] Lo’kklh rFkk LoRo/kkjd ek/;fed fo|ky;ksa
dks NksM+dj½ dk izcU/k ,oa fu;a=.k mDr vf/kfu;e vFkok mDr
v/;kns’k esa fdlh ckr ds gksrs gq, Hkh 2 vDVwcj] 1980 ls jkT;
ljdkj }kjk xzg.k dj fy;k x;k le>k tk;sxkA
Patna High Court SA No.274 of 2015(14) dt.19-06-2025
16/193-¼2½ jkT; ljdkj jkti= esa vf/klwpuk }kjk
fofufnZ”V rkjh[k ls ,sls ekU;rk izkIr vYi la[;d vFkokLoRo/kkjd vFkok Lo’kklh ek/;fed fo|ky; dk izcU/k ,oa
fu;a=.k xzg.k dj ldsxh ftldh izcU/k lfefr] U;kl] laxe
vFkok fuxfer fudk; LosPNkiwoZd fo|ky; ds LokfeRo ;k dCts
dh lHkh py ;k vpy vkfLr;ksa vkSj lEifŸk;ksa ftuds vUrxZr
Hkwfe] Hkou] nLrkost] iqLrdsa vkSj jftLVj Hkh gksxsa ds lkFk fcuk
‘kŸkZ fo|ky; dk izcU/k ,oa fu;a=.k jkT; ljdkj dks lkSai nsA
,sls fo|ky; dk izcU/k ,oa fu;a=.k &xzg.k ds fy, jkT;
ljdkj viuh ‘kŸkZ fu/kkZfjr dj ldsxh vkSj izcU/k ,oa fu;a=.k
lkSaius ds iwoZ mDr ‘kŸkZ dk vuqikyu ,oa fdz;kUo;u djuk mDr
fo|ky; dh izcU/k lfefr] U;kl] laxe vFkok fuxfer fudk;
ds fy, cU/kudkjh gksxk] vkSj og fof/kekU; gksxkA
4- izcU/k ,oa fu;a=.k xzg.k fd;s tkus ds ifj.kke-
¼1½ /kkjk 3 ds v/khu jkT; ljdkj }kjk izcU/k ,oa fu;a=.k xzg.k
fd, x, ek/;fed fo|ky;ksa ds LokfeRo ;k dCts dh Hkh lHkh
py vkSj vpy vkfLr;k¡ vkSj lEifŸk;k¡] ftuds vUrxZr fo|ky;
ls lEcfU/kr Hkwfe] Hkou] nLrkost] iqLrd vkSj jftLVj Hkh gS]
jkT; ljdkj dks vUrfjr gks tk;sxh vkSj mlds LokfERo ;k
dCts esa vk x;h le>h tk;sxhA”
23. It is admitted case of the parties that at the time of
undertaking of the school i.e. 02.10.1980, Haran Chandra High
School was tenant of the plaintiff. Vide notification of the State
Government, the management of the School was taken over and
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at the time of undertaking, the status of the school was tenant.
24. The conjoint reading of Section 3(1), 3(2) and
4(1) of the Act makes it clear that they are aimed at taking over
management and control of the private management of
concerned Non-Government School and transferring its
management and control to the State Government in the same
condition as it was held by the private management before
taking over. Thus, by virtue of consequences provided under
Section 4(1) of the Act on account of take over, the State
Government would acquire the same rights in the suit property
in the capacity of tenant which the private management of the
school undisputedly possessed immediately before the time of
take over. The take over does not provide for creation of any
new rights other than the one possessed by the private
management nor it provides anywhere that the tenancy right of
take over will convert into absolute title and that too in absence
of any provision for paying compensation for acquisition of
ownership rights of the landlord. Had it been the property
owned by the private school, then the matter would have been
otherwise but that is not the case whereas admittedly /
undisputedly, the private school before its take over was a mere
tenant and had no ownership rights in the said demise property.
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Since the property held by the concerned private school at the
time of take over was in the capacity of tenant, the Government
on the take over of the said school would acquire only a tenancy
right and would automatically become a tenant of the plaintiff
and cannot claim ownership rights on account of take over.
When the Sections talks of about transfer of title or possession
in State Government, on account of taking over, it only means
the same rights which the erstwhile private school was
possessing and nothing more.
25. Considering the aforesaid provisions of the Act
and facts of this case, this Court finds that the possession of the
suit premises of the school was not on the basis of ownership.
26. There is no documentary evidence on record to
show that the said premises was donated by anyone. The
management and control of the said school was taken over by
the Government as was existed at the time of undertaking.
Tenanted premises could not be vested in the State. Therefore,
the status of plaintiff as landlord continued after taking over of
the said management of the school as landlord. Hence, the
learned court of appeal below was quite justified in arriving at
the findings with regard to the default whereas the trial court
completely ignored the said aspect of the matter.
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27. In the aforesaid facts and circumstances, this
Court does not find any illegality in the impugned judgment and
decree of the learned court of appeal below, nor does it find any
substantial question of law involved in the instant Second
Appeal which is, accordingly, dismissed at the stage of hearing
under Order XLI Rule 11 of the Code of Civil Procedure.
28. Pending interlocutory applications, if any, shall
stand disposed of.
(Khatim Reza, J)
premchand/-
U