Patna High Court
Muzaffarpur ClubversusSmt. Usha Sinha
- Decided
- Disposal
- DISMISSED
- Bench
- KHATIM REZA
Holding
The deed of 17 July 1889 is a lease, not a permanent settlement; a landlord‑tenant relationship exists, the suit is not barred by limitation or res judicata, and the appeal is dismissed.
Summary
The plaintiffs, heirs of Mahant Raghunath Das, sued the Muzaffarpur Club for eviction, arrears of rent and damages, alleging that the Club held the premises under a lease dated 17 July 1889 (Ext.10/A) and had defaulted on rent since 1956. The defendants contended that Ext.10/A created a permanent, heritable right (a Mokarrari Istamrari) giving them absolute ownership, that the suit was barred by the Limitation Act and by res judicata based on a 1958 House Control order, and that no landlord‑tenant relationship existed under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. The High Court examined the nature of Ext.10/A, held that its terms (fixed rent, re‑version clause, and heritable language) indicate a lease within the meaning of Section 105 of the Transfer of Property Act, 1882, thereby establishing a landlord‑tenant relationship. It further found that the 1958 order was non‑jurisdictional and could not bar the present suit, that the limitation period ran from the 1983 notice of forfeiture under Section 111(g) of the TP Act, and that no res judicata applied. Consequently, the Court affirmed the lower courts’ decrees for eviction and rent, dismissed the second appeal and ordered no costs.
Issues considered
- Whether Ext.10/A (Patta Thika Mokarrir Istemrari dated 17.07.1889) creates a permanent/perpetual lease granting the Club an absolute right to the premises.
- Whether the eviction suit is barred by the Limitation Act given the Club’s alleged cessation of rent payment since July 1956 and hostile claim of title.
- Whether the suit is barred by the principle of res judicata in view of the 30.08.1958 order in House Control Case No. 2 of 1955.
- Whether the First Appellate Court erred in holding that no forfeiture under Section 111(g)(2) of the Transfer of Property Act occurred during the 1955‑56 proceedings.
Legislation cited
- Bihar Building (Lease, Rent and Eviction) Control Act, 1982 — s. 106, 111(g)(2), 2(h)
- Bihar Land Reforms Act, 1950
- Bihar Tenancy Act, 1885 — s. 5(1), 5(2), 5(3)
- Code of Civil Procedure, 1908 — s. 11
- Limitation Act, 1963 — s. 27, 67, Articles 66
- Transfer of Property Act, 1882 — s. 105, 111(g)
Subjects
- eviction
- lease
- permanent lease
- rent default
- limitation
- res judicata
- landlord‑tenant relationship
- Transfer of Property Act
- Bihar Building Act
- compensation
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No. 338 of 2021
(Against the judgment and decree dated 06.03.2021 passed by Additional
District Judge-IX, Muzaffarpur in Title Appeal No.57 of 2015 affirming
the judgment and decree dated 03.09.2015 passed by Civil Judge (Senior
Division)-VII, Muzaffarpur in Title Suit No.69 of 1983)
======================================================
1. Muzaffarpur Club (through its Hon’ble Members represented by Sri. R.K.
Sahu @ Lalan Babu @ Ramakant Prasad Sahu @ Ratna Kant Sahu,
Appellant No. 3) at Sarai Saiyad Ali Muzaffarpur, Near Head Post Office,
Muzaffarpur, P.S. Town, P.O. H.P.O., District- Muzaffarpur.
2. Sri Kumod Sahay son of Late Gopalji Sahay resident of Mohalla Motijhil,
P.S. Town, P.O. H.P.O., District- Muzaffarpur.
3. Sri R.K. Sahu @ Lalan Babu @ Ramakant Prasad Sahu @ Ratna Kant Sahu,
son of Late Krishna Mohan Prasad Sahu resident of Mohalla Sahu Pokhar,
P.S. Town, District- Muzaffarpur.
4. Dr. C.P.N. Thakur son of Late Raghuraj Thakur resident of C/o Thakur
Nurshing Home at Mohalla Nayatola, P.S. Kazimohammadpur, District
Muzaffarpur.
... ... Defendants/Appellant/s
Versus
1. Smt. Usha Sinha wife of Late Birendra Kumar Singh resident of Village
Rampurballi @ Repura, P.S. Saraiya, District Muzaffarpur, at present
resident of Jaitpur House, Mohalla Maripur, P.S. Town, District-
Muzaffarpur.
2. Sri Annunay son of Late Birendra Kumar Singh resident of Village
Rampurballi @ Repura, P.S. Saraiya, District Muzaffarpur, at present
resident of Jaitpur House, Mohalla Maripur, P.S. Town, District-
Muzaffarpur.
3. Sri Annumeet son of Late Birendra Kumar Singh resident of Village
Rampurballi @ Repura, P.S. Saraiya, District Muzaffarpur, at present
resident of Jaitpur House, Mohalla Maripur, P.S. Town, District-
Muzaffarpur.
….. …. plaintiff/respondents 1st set/ respondents 1st set
4. Sri Pradeep Maherotra son of Late Radhey Shyam Mehrotra resident of
Mohalla Juran Chhapra Road No. 1, P.S. Barhmpura, District Muzaffarpur.
Expunged vide order dated 02.07.2024
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5 Sri Baidyanath Prasad Verma son of Late Dr. S.C. Prasad, resident of
Mohalla Professor Colony, Amgola, P.S. Town, District Muzaffarpur.
….. …… Defendants/respondents 2nd set/respondents 2nd set/respondents.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. K. N. Choubey, Sr. Advocate
Mr. Ambuj Nayan Chaubey, Advocate
Mr. Jitendra Kishore Verma, Advocate
For the Respondent/s : Mr. J.S. Arora, Sr. Advocate
Mr. Ravi Bhatia, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 05-05-2026
Heard Mr. Kamal Nayan Chaubey, learned Senior
Counsel assisted by Mr. Jitendra Kishore Verma, learned
counsel for the appellants and Mr. J.S. Arora, learned Senior
Counsel assisted by Mr. Ravi Bhatia, learned counsel appearing
for the respondents.
2. This second appeal has been filed by the defendants-
appellants against the judgment and decree of affirmance dated
06.03.2021 passed by the learned Additional District Judge-IX,
Muzaffarpur, in Title Appeal No. 57 of 2015 whereby the
learned First Appellate Court has upheld the judgment and
decree dated 03.09.2015 passed by the learned Civil Judge
(Senior Division)-VII, Muzaffarpur, in Title Suit No. 69 of
1983. The suit was partly decreed, on contest, on the ground of
default in payment of rent and personal necessity. However, the
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claim for compensation in respect of damages accruing to the
plaintiffs was refused.
3. In the present appeal, the following substantial question
of law has been formulated for determination:
“(i) Whether the document in question (Ext. 10/A)
Patta Theka Mokarrir Istemrari dated 17.07.1889
envisages transaction of permanent/ perpetual
lease creating absolute right in favour of appellant
not to be evicted from suit premises?
(ii) Whether the instant Title Suit No. 69 of 1983
for eviction is barred by Law of Limitation when
admittedly appellant Club stopped the payment of
rent since July, 1956 and put the hostile claim of
the suit premises?
(iii) Whether the instant suit is barred by principle
of res judicata in view of order dated 30.08.1958
(Ext. F) passed in House Control Case No. 02 of
1955 where it was held that there is no
relationship of landlord and tenant between the
parties?
(iv) Whether the first appellate court has erred in
making third case that no forfeiture within the
ambit of Section 111(g)2 of T.P. Act ever took place
in year 1955-56 during proceeding of House
Control Case?”
4. In order to gauge the matter in its proper perspective, it
is necessary to briefly restate what the suit entails. The suit was
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filed by the plaintiff-respondent 1st for evicting the defendants
on the ground of default in payment of rent and also for a decree
for realization of arrears of rent amounting to Rs. 1,800/- for the
last three years at the rate of Rs. 50/- per month along with
pendente lite and future interest at the Bank rate till realization.
The plaintiffs have further sought a decree for compensation in
respect of damage to the suit building caused by the defendants
as well as costs of the suit.
5. The case of the plaintiffs is that they are the owners of
the property described in Schedule I of the plaint. It is stated
that the suit property was originally leased by their predecessor-
in-interest, Chaudhary Mahant Raghunath Das, in favour of one
Stuart, as Secretary of the Station Club, Muzaffarpur, for a
period of ten years from 01.08.1885 to 01.08.1894 at a monthly
rent of Rs. 25/- only. The said lease deed was executed on
13.08.1885. The further case of the plaintiffs is that on
17.07.1889 another lease in the nature of ‘Mokarrari Istamrari’
was executed with respect to the Schedule I property. It is
further pleaded in the plaint that although Sri A.N. Stuart
described his designation as Secretary of the Station Club,
Muzaffarpur, the said Club was not a legal entity and had no
independent legal character apart from Sri A.N. Stuart. Thus, the
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lease created on 17.07.1889 by Chaudhary Mahant Raghunath
Das was in favour of Sri A.N. Stuart. It is further pleaded that
Chaudhary Mahant Raghunath Das acknowledged the status of
the lease in favour of A.N. Stuart, Secretary of the Station Club,
Muzaffarpur, though the said Club had no juridical existence.
The Station Club, Muzaffarpur, continued to function as a place
of recreational activities for the benefit of the elite of the town
of Muzaffarpur for a long period and was later closed down.
However, the Station Club, Muzaffarpur, continued to occupy
the suit property even after the death of Mahant Raghunath Das,
with the permission of the predecessor-in-interest of the
plaintiffs. It is further pleaded that the plaintiffs succeeded to the
right, title and interest in respect of the property described in
Schedule-I in due course after the demise of Chaudhary Mahant
Raghunath Das and his successors-in-interest, who were above
the plaintiffs in the line of succession.
6. The further case of the plaintiffs is that the lease stood
terminated either on the death of Sri A.N. Stuart or on the
Station Club, Muzaffarpur, ceasing to exist, on account of the
fact that no one succeeded Sri A.N. Stuart. However, the Club
continued in possession with the permission of the plaintiffs’
predecessor-in-interest. At no time, however, the issue as to the
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relationship between the plaintiffs and the defendants
concluded, except to the extent that succeeding one after the
other predecessors-in-interest of the plaintiffs permitted those
constituting Muzaffarpur Club to hold their activities upon the
properties described in Schedule I, subject to payment of rent of
Rs. 50/- per month and the Club paid the rent and sometimes
adjusted it towards the bill of the Club payable by the plaintiffs’
family, which created relationship of landlord and tenant, but
subsequently even defaulted in making payment for several
months and years prior to the institution of the suit.
7. The further case of the plaintiffs is that the Station
Club, Muzaffarpur, not being a juristic person, could not hold
any property or exercise any legal right of its own and,
therefore, could not claim the status of a lessee. It is further
pleaded that on cessation of the Station Club, Muzaffarpur, even
assuming that any right had accrued in its favour under the lease
deed dated 17.07.1889, the property described in Schedule I
reverted to the rightful owner claiming through Chaudhary
Mahant Raghunath Das, the plaintiffs being the present owners
of the said property. The plaintiffs assert that the defendants, in
the absence of any legal status of the Muzaffarpur Club, are
merely in permissive possession as tenants on payment of rent
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and are liable to be evicted on the grounds pleaded. It is further
stated that the defendants have defaulted in payment of rent at
the rate of Rs. 50/- per month for several months and years.
However, for the purposes of the suit, the plaintiffs have
confined their claim to arrears of rent for three years, amounting
to Rs. 1,800/-.
8. On summons, defendant nos. 2 and 3 have filed a joint
written statement and separate written statements were also filed
by defendant nos. 6 and 7. Additional written statements were
also filed by the defendants and the entire case of the defendants
is being described together as all the defendants have resisted
the claim of the plaintiffs for the benefit of the Station Club,
Muzaffarpur on its behalf and by all its members. The
defendants have denied the existence of landlord-tenant
relationship between the plaintiffs and the defendants under the
Bihar Building (Lease, Rent and Eviction) Control Act,1982 (for
short ‘the B.B.C. Act’) and that of lessor-lessee under the
Transfer of Property Act,1882 (for short ‘the T.P Act’), having
regard to the nature of the document whereunder the possession
was and is being held and subsequent proceeding as well as
conduct of the parties. Besides the ornamental objection, the
defendants also raised objection that the suit is not properly
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framed as all members of the Club have not been made party to
the suit and that the deed of ‘Patta Thika Mokarrari Istamrari’
dated 17.7.1889 (Ext. 10/A) is being wrongly interpreted by the
plaintiffs. Further case of the defendants is that the suit is hit by
the Bihar Land Reforms Act 1950 (for short ‘the B.L.R. Act
1950) and State of Bihar is also a necessary party as
intermediary interest over the suit property stood vested in the
State of Bihar since 01.01.1956 and the Club being in
possession has become a rightful owner and is neither a tenant
nor a lessee of the plaintiffs. It is further pleaded that through
Thika Mokarrari Istamrari deed (Ext. 10/A) Chaudhary Mahant
Raghnathh Das, on accepting nazrana created absolute and
heritable right from generation to generation (naslan baad
naslan and batnan baad batnan) over the suit property in favour
of Station Club, Muzaffarpur, which later came to be known as
the Muzaffarpur Club. It is further pleaded that the original
building standing at the time of execution of the deed got
destroyed due to the earthquake which occurred in 1934 and
thereafter, with full knowledge of ancestors of plaintiffs, the
Club virtually developed and enhanced the value of the
premises with its own huge investments from time to time
which included construction of new building and staff quarters,
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swimming pool, repairs and renovations, planting and
maintaining various kinds of trees, etc., using the same without
any objection from the plaintiffs or their ancestors. Although
the plaintiffs or their ancestors had no right to determine the
Mokarri Istamrari deed dated 17.7.1889 and there was no
relationship of landlord and tenant between the plaintiffs and
members of Muzaffarpur Club, but the grand father of plaintiff
no. 1 filed House Control Case No. 2 of 1955 before the
Controller of Buildings, Muzaffarpur, under the B.B.C. Act
against the members of the Muzaffarpur Club and sought relief
for their eviction from the suit property on the ground of default
in payment of rent and personal necessity and this case was
resisted by the Muzaffarpur Club denying the landlord-tenant
relationship between the parties and claiming absolute and
heritable right to the property on the basis of ‘Patta Thika
Mokarrari Istamrari’ dated 17.7.1889 (Ext. 10/A) and after
hearing the parties, the case was rejected on the ground that by
virtue of the deed of ‘Mokarrari Istamrari’, Muzaffarpur Club
had acquired absolute, heritable, and transferable rights over the
suit premises against which no appeal or revision was preferred
by Raghava Prasad Narain Sinha or his legal heirs or the
predecessors-in-interest of the plaintiffs. Accordingly, the case
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was dismissed by holding that no relationship of landlord and
tenant existed between the parties within the purview of the
B.B.C. Act and, thus, the case was rejected having no
jurisdiction. The said order was passed on 30.8.1958 and the
present suit having been filed in the year 1983 is barred by law
of limitation as it has been filed much beyond the statutory
period of limitation of 12 years from the date of order dated
30.8.1958 passed in House Control Case No. 2 of 1955 (Ext.
F).The defendants have further denied the averments made in
the plaint that Station Club, Muzaffarpur, operated for some
time and was later closed down. The defendants have pleaded
that the same Club is continuing in operation and only the name
of the Club has been changed to Muzaffarpur Club, which has
been within the full knowledge of the plaintiffs, who have
always recognized that Muzaffarpur Club is Station Club
Muzaffarpur and that is why Raghava Prasad Narain Sinha had
filed House Control Case No. 2 of 1955 against Muzaffarpur
Club on the basis of the same Mokarrari Istamrari deed,
claiming relationship of landlord and tenant. Defendant no. 7
also pleaded in his written statement that plaintiffs are very
influential person. Plaintiff no. 1 has been Member of
Legislative Assembly from different parties for several terms
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and wife of plaintiff no. 1, Smt. Usha Sinha, was also a Member
of Parliament as well as a Member of councils of Ministers and
his brother-in-law Mr. N. R. Singh was also M.L.A. for several
terms and was also a Cabinet Minister. He has further stated that
on account of their political influence and by bringing the
survey authority in their collusion, the plaintiff no. 1 got
recorded his grandmother’s name in the RS Khatiyan in respect
of the suit land, although RS khatiyan legally should have been
opened in the name of Muzaffarpur Club who are the rightful
owners, but wrongly and illegally the name of Muzaffarpur
Club was recorded in the remarks column only because of
undue influence exerted by the plaintiffs and their family
members. It is the specific case of the defendant no.7 that the
deed of Mokarrari Istamrari was executed in favour of the
members of Club through the Secretary and the proprietary
interest of the ex-landlord vested in the State, and as such, after
vesting, no one is claiming through Mahant Raghunath Das or
as Mahant of the said Math, of which Raghunath Das was
Mahant or claiming through the ex-landlord can have any
interest in the suit property. He has further stated that after
vesting of Zamindari interest under the B.L.R. Act, Mokarridar
right created through Mokarrari Istamrari deed becomes the
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permanent raiyats of the land and the name of the Muzaffarpur
Club was mutated in the Municipal records and the members of
the Club have been paying taxes and getting rent receipt as
owner of the Muzaffarpur Club. It is further case of the
defendants that in one part of the plaint, the plaintiffs have
alleged the defendants are strangers and there is no relationship
of landlord and tenant and in the other part the plaintiffs have
alleged the defendants have stopped paying rent denying title
since 1955. Defendants have been denying the plaintiffs’ title
and asserting their own right, title and interest over the suit
premises and are in possession of the suit premises for last
several 12 years openly and continuously asserting and
exercising right of absolute owner over the suit premises. Lastly,
the defendants have pleaded that they have not paid any rent to
the plaintiffs nor does any question of same arise in any view of
the matter either legally or factually. Hence, no question arises
of any so-called default in payment of rent for several years.
Therefore, the Eviction Suit is not maintainable as there is a title
dispute with respect to the property. There is no relationship of
landlord and tenant between the parties so as to maintain an
Eviction Suit against the defendants. The defendants, therefore,
prayed for dismissal of the suit.
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9. On the basis of the pleadings, the learned Trial Court
had framed 10 issues which are as follows:-
“1. Whether the suit as framed is legally
maintainable?
2. Whether the plaintiff has got right to sue for
cause of action?
3. Whether the suit is barred by law of limitation,
adverse possession, principle of estoppel, waiver
and acquiescence?
4. Whether the suit is bad on account of non
joinder of necessary parties?
5. Whether the suit property is properly valued and
the court fee paid is sufficient ?
6. Whether the defendants acquired absolute right
by deed of patta Thika Mokarri Istamrari dated
17.7.1889?
7. Whether the Station Club was subsequently
started to be called and known as Muzaffarpur
Club ?
8. Whether the defendants are lessee of the suit
premises as alleged by the plaintiff?
9. Whether there is relation of landlord and tenant
or lessor and lessee between the plaintiff and the
defendants?
10. Whether the plaintiffs are entitled for a decree
for eviction, arrears of rent and compensation for
damages to the building against the defendants ?”
10. The learned Trial Court, after considering the
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pleadings and evidence adduced by the parties as well as the
materials on record, held that on perusal of Ext. F (order of the
House Controller passed in House Control Case No. 2 of 1955),
it transpires that the previous eviction case was rejected as it
was outside the jurisdiction of the House Controller, and,
therefore, the House Controller’s order (Ext. F) is non est in law,
as after the amendment of 1955, a decree of eviction can only be
passed by a Civil Court and since the order (Ext. F) is non est in
law, it cannot be taken into consideration and further held that
the suit has been filed within the statutory period of limitation
on the ground that forfeiture, on account of hostile title being
claimed by the lessee, takes effect only on service of notice in
writing under Section 111(g) of the T. P. Act by the lessor to the
lessee; and finally concluded that since such notice dated
25.02.1983 (Ext. 3) was given to the Club, the suit is within the
prescribed period of limitation. The learned Trial Court has
further observed that on perusal of Ext. 1/Z-13 to Ext. 1/Z-15, it
is evident that the plaintiffs’ Club membership dues were
adjusted against the rent dues; hence, it can reasonably be
presumed that at least up to March 1973 the Club rent was duly
paid. P.W. 4, Usha Sinha, has also deposed in paragraph 24 that
her husband, her father-in-law Krishna Kumar Singh, her
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husband’s grandfather and both brothers were members of the
Club and that the dues were adjusted against the rent.
11. While dealing with the objections of defendants with
regard to the said Exhibits that those are forged and fabricated,
learned Trial Court held that the defendants did not file any
petition for obtaining expert opinion as to the genuineness of the
Exhibits and, therefore, on the principle that one who alleges a
fact must prove it, the defendants failed to prove that the letters
are forged and fabricated and, therefore, it can be easily
presumed that rent was paid at least up to March, 1973 which
brings the suit within the period of limitation and the Trial Court
concluded that landlord-tenant relationship existed even after
1956. The learned Trial Court with reference to Section 2(h) of
the B.B.C. Act, which defines a ‘tenant’ to include a person
continuing in possession even after termination of tenancy in his
favour, observed that the suit is not barred by limitation, as the
defendants are admittedly continuing in possession and,
therefore, the tenancy in their favour has not been determined
till date. Further, the learned Trial Court, while dealing with the
nature of the Patta Thika Mokarrari Istamrari deed (Ext. 10/A)
and having regard to Section 105 of the T.P. Act, observed that
as per the said deed a lease was created in favour of A.N. Stuart,
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Secretary of the Club or his successors in office. The Trial
Court further held that the defendants are merely monthly
tenants in terms of the lease, inasmuch as even a permanent
lease does not transfer ownership, but only confers a right to
enjoy the property. The learned Trial Court also observed that
under Ext. 10/A, a premium of Rs. 600/- was paid and a
monthly rent of Rs. 50/- was fixed which indicates the
essential features of a lease. Accordingly, the learned Trial Court
treated Ext. 10/A as a lease within the meaning of Section 105
of the T.P. Act and refused to consider it as a permanent
settlement or any other kind of transfer deed.
12. So far as the locus standi of the plaintiffs is
concerned, the learned Trial Court, while dealing with the
defendants’ objection that only the chela (disciple) of the
Mahant could succeed to his rights over the suit property, the
same being alleged Math property, observed that the Mahant, in
his capacity as chela of the previous Mahant Raja Ram Das, had
transferred the suit property to the Club in the capacity of
Asthaldhari and not in his personal capacity. The learned Trial
Court, placing reliance upon Tagore Law Lectures on Hindu
Law (5th edition page 337), held that since the Mahant
belonged to the Vairagee sect, which is governed by the
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ordinary rules of succession, the plaintiffs, being the legal heirs
of the Mahant, are entitled to institute the present suit as his
successors.
13. So far as the question of landlord-tenant relationship
is concerned, the learned Trial Court has held that on perusal of
Exts. 6 and 6/b, in both the Khatiyans the names of
Mahasundari Kuer and Mahant Raghunath Das respectively
have been recorded in the column ‘Assami’ (Raiyat). Moreover,
in Exts. 2/i to 2/v, the names of the ancestors of the plaintiffs
have also been recorded in the column ‘Assami. In Exts. 2/z-4
and 2/z-5 as well, the names of the plaintiffs’ ancestors have
been recorded in the column ‘Assami’. It has further been
observed that the persons who had purchased proprietary
interest vide Exts. 8 to 8/d have been shown in the column
“Malik” in all the ‘Maliki’ receipts. Exts. 11, 11/a and 11/b also
establish the conversion of old survey numbers into new
numbers and the same corroborate the schedule given in the
plaint. Thus, it stands clearly established that the plaintiffs’
ancestors were raiyats and not Maliks ( proprietors). The
learned Trial Court further held that although in 1956 the
proprietary interest vested in the State of Bihar, the Raiyati
interest never vested in the State; and even thereafter, the
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Raiyats continued to retain title over the land in which they had
Raiyati interest. The trial Court has further observed that even
if the contention of the defendants is presumed to be correct,
namely that after the collapse of the building in 1934 they
constructed a new building even in such circumstances the
relationship of lessor and lessee would exist; and, in any event,
after the coming into force of the B.B.C. Act in 1947, the
relationship of landlord and tenant stood established between
the parties. Further, from Exts. 1 series, it is evident that rent
was paid to the plaintiffs’ ancestors as well as to the plaintiffs,
either through cheque or by way of adjustment against dues of
Club membership. In view of the aforesaid discussion, it is clear
that there was/is a relationship of landlord and tenant between
the plaintiffs and the defendants. Accordingly, the learned Trial
Court held that the plaintiffs are entitled to a decree for eviction
and for arrears of rent, as after 1973 the defendants did not pay
any rent to the plaintiffs and from 1974 onwards the defendants
began denying the title of the plaintiffs, as is evident from Ext.
7/H. The Trial Court further observed that Ext. F cannot be
taken into consideration being non est in law.
14. So far as compensation for damages is concerned, the
learned Trial Court held that the damages alleged to have been
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caused to the building on account of negligence or fault of the
plaintiffs could not be proved. The Trial Court further observed
that any damage caused due to natural calamities (earthquake)
was duly repaired, as is evident from the income and
expenditure account of the Muzaffarpur Club for the year 1934
(Ext. C) and that such repairs were carried out in accordance
with the terms of the Patta Thika Mokarrari Istamrari deed.
Accordingly, the learned Trial Court held that the plaintiffs are
entitled only to a decree for eviction and arrears of rent, but not
to any compensation in respect of the damages alleged to have
been caused to the building and suit was partly decreed on
contest without cost.
15. Being aggrieved by the judgment and decree dated
03.09.2015 passed by the learned Trial Court in Title Suit No.
69 of 1983, the defendants- appellants preferred Title Appeal
before the District Judge, Muzaffarpur.
16. After hearing both the parties, the learned First
Appellate Court framed the following points for consideration
and determination in the aforesaid appeal:-
“(1) Whether the relationship of landlord and
tenant exists between the respondent Ist
party/plaintiff and appellant/defendant/Club;
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(2) Whether there happened/occurred any
forfeiture of the lease in question whereby the
appellant Club incurred liability of being evicted,
and, if yes, then when the same
happened/occurred, and as to whether the suit filed
by respondent Ist party/plaintiff is barred under the
law of limitation for the reason of being filed after
several 12 years of the said forfeiture;
(3) Whether the respondent Ist party/plaintiff in the
given case, was entitled to a decree of eviction and
other relief as claimed against the
appellant/defendant Club?
4) Whether the impugned judgment and decree
passed by the learned court below for eviction of
the appellant/Club from the suit premises is liable
to be set aside or not?”
17. The learned First Appellate Court, after considering
the evidence adduced by the parties, the materials on record and
the submissions advanced on the issue of the relationship of
landlord/ lessor and tenant/lessee between the
plaintiff/respondents 1st party and the appellant/defendant,
Muzaffarpur Club, observed that the possession of the appellant
Club over the suit premises is admittedly based on the lease
deed (Ext. 10/A). The learned First Appellate Court further
observed that Station Club, Muzaffarpur was initially inducted
as a tenant with effect from 01.08.1885 at a monthly rent of Rs.
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25/- payable to the lessor, Mahant Raghunath Das or his legal
heirs. The said lease deed (Ext. 10), which was for a period of
ten years, was subsequently renewed by way of a Patta Theka
Mokarrari Istemrari, being a permanent lease deed, executed by
Mahant Raghunath Das through a registered deed dated
17.07.1889 (Ext. 10/A) at a monthly rent of Rs. 50/- on payment
of a premium amount (nazrana) of Rs. 600/-.The learned First
Appellate Court also noted that, subsequently, the name of
Station Club, Muzaffarpur was changed to Muzaffarpur Club
and it is admitted by the plaintiffs that the said Club continued
to carry on its activities in the suit premises even thereafter. The
learned First Appellate Court further held that the source of
possession of the appellant Club over the suit premises
originates from the aforesaid lease deeds (Exts. 10 and 10/A),
through its predecessor-in-interest, namely Station Club,
Muzaffarpur. The Court further observed that it is a settled
position of law that a lease does not confer absolute right or title
upon the lessee, but merely transfers a limited interest in the
property, such as the right of possession and enjoyment. The
learned First Appellate Court further observed that although the
lease deed (Ext. 10/A) has been described as a Theka Patta
Mokarrari Istemrari, which generally connotes a permanent or
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perpetual lease, but its true nature must be gathered from the
terms of the document and the intention with which it was
created.
18. It has further been observed that the recitals of the
lease deed provide the best evidence to determine what was
transferred thereby and thereunder in favour of the lessee. The
learned First Appellate Court, while dealing with the English
translated version of the lease deed (Ext. 10/A), came to the
conclusion that on a perusal of the recitals of the lease deed, so
far as the purpose of its creation is concerned, it was agreed
between the parties to the lease (lessor and lessee) that if the
Station Club is closed at any time, or if Club activities are
discontinued or if the houses are no longer required by the Club,
or if the Club is shifted to another place, then in such an event
the aforesaid houses mentioned in the document shall revert
back to the Jaitpur Estate and no payment shall be made by the
Jaitpur Estate in that regard. It is crystal clear from this portion
of the lease deed that the suit property was leased in favour of
the Station Club through its the then Secretary merely for the
purpose of carrying out Club activities. It was intended that so
long as the Club activities continue, the leased premises shall
remain in possession of the Club. Therefore, it was not the
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intention of the said lease deed to confer an absolute transfer of
the suit property in favour of the Club, its members or its
Secretary nor to permit its use for any other purpose (including
personal purposes) not disclosed in the lease deed.
19. The lease deed has to be construed in the sense and
meaning in which it was created by the lessor in favour of the
lessee Club and to infer the intention of the lessor the lease deed
and the recitals therein are the best evidence. From the relevant
portion of the recitals, it is very clear that it was anticipated by
both the lessor and the lessee that if, in future, the Club
activities are stopped or if the Club is shifted to another place,
the suit premises shall revert back to the Jaitpur Estate. This
clearly shows that the suit property was not permanently granted
to the Club; rather, it was given only for the purpose of carrying
on Club activities and there was no intention on the part of the
lessor to transfer any absolute title, right or interest in the suit
property in favour of the appellant Club. The claim of the
appellant Club that the lease deed was a permanent lease and,
therefore, that it acquired absolute rights is untenable in the eye
of law. The learned First Appellate Court further held that from
the recital of the lease deed (Ext. 10/A), the rent, as agreed
under the lease deed, was payable to the lessor, namely Mahant
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Raghunath Das or his legal heirs. The rent was fixed at Rs. 50/-
per month. With regard to the term ‘Theka Patta Mokarrari
Istemrari’ is concerned, this alone is not sufficient to treat the
lease deed as an Istemrari (permanent) lease, particularly, when
the rent was fixed only for the period of the continuation of
Club activities in the suit premises and there was no stipulation
or provision in the lease deed regarding any enhancement and/or
reduction of the rent so fixed. With regard to the word
‘Mokarrir,’ the learned First Appellate Court has explained that
it means reconfirmation. This expression can be understood in
the sense that during the existence of the previous lease deed
(Ext. 10), the present lease deed (Ext. 10/A) was executed thus
reconfirming the lease of the suit premises for Club activities.
20. The learned First Appellate Court further observed
that it is not in dispute that Mahant Raghunath Das, the lessor of
the lease deed, was not a raiyat of the suit property. Rather, it
has been admitted by the appellant Club during the survey
proceeding before the Survey Authority and is also evident from
Ext. 7/H wherein, the appellant Club itself set up a case that
Mahant Raghunath Das was the landlord of the disputed tauzi,
and as such, was having raiyati right, title and interest over the
same. The appellant Club, however, raised a contention that the
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suit property was possessed by Mahant Raghunath Das as Math
property in his capacity as Mahant and that the plaintiff-
respondent first party and their predecessor-in-interest were not
disciples of the Mahant; therefore, they had no right to maintain
the instant Eviction Suit in respect of Math property. Ext. 7/D is
the documentary evidence of the Survey proceeding between
Muzaffarpur Club and Smt. Dulhin Mahasundari Kuer in Appeal
Case No. 914 of 1977. On perusal of this Exhibit and since its
contents are not disputed by either side, it is evident that the said
Mahasundari Kuer, in her appeal, had pleaded that Mahant
Raghunath Das had gifted the suit property to his wife, Smt.
Ramanand Kuer and thereafter it was transferred to his son,
Raghava Prasad Narain Sinha. Diwan Bahadur Badri Narain
Singh was the elder brother of the said Raghava Prasad Narain
Sinha and the said Mahasundari Kuer was the widow of Badri
Narain Singh. It further appears that the Muzaffarpur Club had
continued to make payment of rent pursuant to the lease deed to
the respondent and in the said appeal case, Smt. Dulhin
Mahasundari Kuer was the respondent. Ext. 7/D, therefore,
stands proved by way of documentary evidence and, more
importantly, being an undisputed document, clearly establishes
that the present plaintiff-respondent first party belongs to the
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family of Mahant Raghunath Das.
21. The question that arose for consideration was whether
the property so leased thereunder was Math property or the
individual/personal property of the lessor and further whether
the lessor executed the lease deed of the suit premises in his
capacity as the Mahant of the Math or treated the suit premises
as his individual/personal property. The recital of Ext. 10/A
speaks that the property was described as ‘khas property’ and
‘owned property’ of the lessor, i.e., it was his individual or
personal property. The reversion clause in the lease deed (Ext.
10/A) further makes it clear that in the event the Club is closed
or shifted to another place, the leased property would revert
back to the Jaitpur Estate. If there had been any intention that
the property belonged to the Math, such a stipulation providing
for reversion to the Jaitpur Estate would not have been
incorporated. The Learned First Appellate Court further
observed that merely because a person subsequently becomes
the Mahant of a Math, it does not divest him of his title in
respect of property already standing in his own name prior to his
holding the office of Mahant. This contention was accepted by
the learned First Appellate Court. The learned First Appellate
Court on considering the evidence and materials on record, held
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that the plaintiffs and their predecessor-in-interest derived right,
title and interest in the suit property through Mahant Raghunath
Das, being his biological/legal heirs who was admittedly the
owner of the suit property in his individual capacity. The learned
First Appellate court observed that the suit property was his
khas/individual/personal property and not Math property. In this
view of the matter, the plaintiff/respondent first party and their
predecessor-in-interest were entitled to institute as well as
maintain the instant suit against the defendants/appellant Club.
Accordingly, on a proper interpretation of the recitals of the
lease deed, coupled with the aforesaid factual and legal position
and the evidence on record, it stands proved that the property
was not that of the Math rather it belonged to Mahant
Raghunath Das in his individual capacity as his personal
property.
22.The plaintiffs, who claim to be the legal
heirs/successors-in-interest, are admittedly proved to be related
to Mahant Raghunath Das, the lessor of the lease deed (Ext.
10/A), under which the appellant Club is in possession of the
suit premises. Thus, the plaintiffs are the legal heirs of Mahant
Raghunath Das. The learned First Appellate Court considered
the defence of the appellant Club that it had been paying
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municipal taxes and other taxes. In support of this contention,
Ext. A series, Ext. B (the proceedings book of the Club), Ext. C
(the books of account of the Club), and Exts. D to D/19 (the
audit reports of the Muzaffarpur Club) were brought on record.
By these Exhibits, it was sought to establish that the Club had
been paying municipal and other taxes to the municipality and
the Government and had been obtaining revenue/tax receipts in
its own name. It has further been observed that in the municipal
records, the name of the appellant Club stood recorded in
respect of the suit premises and on that basis it had acquired
absolute rights over the same. This contention was answered by
the learned First Appellate Court by holding that the lease deed
(Ext. 10/A) itself contains a clear stipulation. As per the agreed
terms between the lessor and the lessee, the municipal taxes and
other similar taxes were to be paid by the Club, and the
landlord/lessor was not liable for the same. Thus, from this
recital of the lease deed, it is clear that mere payment of
municipal taxes does not confer any absolute right in the lease
property. The parties remain bound by the stipulations of the
lease deed till the same is in existence.
23. Moreover, a mutation entry in the revenue records
neither creates nor extinguishes title in respect of the property to
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which such entry relates nor does it carry any presumptive value
regarding title. On the basis of this finding, the learned First
Appellate Court came to the conclusion that between the
appellant-Club and the plaintiff/respondent first party, there
exists a relationship of landlord/lessor and lessee/tenant in
respect of the suit premises. So far as the default in payment of
rent is concerned, it is the admitted case of the appellant-Club
that no rent was paid after June 1954. Despite being in
possession of the leasehold premises (i.e., the suit premises), the
defendants-appellants failed to pay rent and by virtue of such
conduct, the appellant-Club forfeited the conditions of the lease
deed thus incurring liability for eviction from the suit premises.
In such circumstances, the lessor as well as its successors-in-
interest, i.e., the plaintiff/respondent first party, are entitled to
institute and maintain a suit for ejectment of the lessee/tenant.
Since the appellant-Club continues in possession of the suit
premises and the default in payment of rent treated as a
continuing breach, no limitation can be imposed on the right to
claim eviction on that ground. However, so far as recovery of
arrears of rent is concerned, there is a limitation of three years.
In the present case, the plaintiffs have restricted their claim for
arrears to three years only; hence, that part of the relief is not
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barred by the law of limitation. The learned First Appellate
Court further held that Ext. 7H is the document from which the
fact of forfeiture, in terms of Section 111(g)(2) of the T.P. Act,
stands proved, resulting in the determination of the lease
in-question and rendering the appellant-Club liable to be ejected
from the suit premises. Although the date of filing of the petition
by the Muzaffarpur Club is not mentioned in the order sheet
(Ext. 7/H), even if the date is taken as 31.03.1975, the present
suit on the ground of forfeiture, cannot be said to be barred
either under Articles 66 or 67 of the Limitation Act. Even in that
situation Section 27 of the Limitation Act has no application so
as to favour the appellant-Club or to defeat the claim of the
plaintiff/ respondent first party. It is also an admitted position
that no payment of rent was made after June 1956 and this fact
stands corroborated by Ext. F (order in House Control Case No.
2 of 1955). The appellant-Club has, thus, incurred liability for
eviction due to admitted default in payment of rent under the
lease deed (Ext. 10/A). Furthermore, if the Club is in possession
and claims such possession on the strength of the said lease
deed (Ext. 10/A) then, on account of non-payment of rent, it is
liable to be ejected from the suit premises. Accordingly, the
learned First Appellate Court held that the impugned judgment
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and decree do not warrant interference and are liable to be
confirmed. Consequently, the appeal filed by the
defendants/appellants was dismissed, which is now under
challenge in the present Second Appeal.
24. Mr. Kamal Nayan Chaubey, learned senior counsel
appearing for the defendants-appellants, while making
submission on the first substantial question of law framed by
this Court, submitted that the Patta Thika Mokarrari Istamrari
dated 17.07.1889 (Ext. 10/A) creates a permanent settlement in
favour of the Club. According to him, the said document cannot
be construed as a lease within the meaning of Section 105 of the
T.P. Act nor does it create a tenancy governed by the BBC Act.
It is further submitted that having regard to the nature and
character of the aforesaid document (Ext. 10/A) the present suit
is not maintainable in law, as the relationship between the
parties does not fall within the ambit of either the T.P. Act or the
B.B.C. Act. Learned senior counsel further submitted that it was
the duty of the plaintiffs to establish that such a relationship
existed so as to attract the applicability of the aforesaid statutes;
however, they have failed to discharge that burden.
25. Learned senior counsel further submitted that it is a
settled proposition of law that the legal effect and construction
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of the terms of a document, which forms the foundation of the
rights of the parties, is a question of law. It is further submitted
that where the construction of a document involves the
application of legal principles, the same also gives rise to a
question of law. He next submitted that the expression
“substantial question of law” has been interpreted by the
Hon’ble Apex Court on several occasions and in support of this
proposition, reliance has been placed on the decisions in the
case of Boodireddy Chandraiah & Ors. v. Arigela Laxmi &
Anr., reported in (2007) 8 SCC 155 : AIR 2008 SC 380, and
Kashmir Singh v. Harnam Singh & Anr., reported in AIR 2008
SC 1749. On the strength of the aforesaid principles, learned
senior counsel argued that the main issue in the present case
relates to the legal effect, true nature, and proper construction
of Ext. 10/A. According to him, the question as to whether the
said document can be regarded as a lease within the meaning of
the T.P. Act or a tenancy under the B.B.C. Act or is in the nature
of a permanent settlement or some other kind of transaction, is
essentially a substantial question of law requiring determination
by this Court. It is further submitted that the true character of
Ext. 10/A must be ascertained not merely from its title, such as
Thika Patta Mokarrari Istamrari, but from entire consideration
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of its contents, as well as the background and surrounding
circumstances in which the document came to be executed.
26. Learned senior counsel further submitted that the
transaction known as ‘Thika Patta Mokarrari Istamrari’ refers
to a form of permanent land tenure with a fixed rent, having its
roots in the land revenue system prevailing during the late
Mughal period and the early British period. It is further
submitted that the expression is derived from Persian words,
namely “mokarrar” meaning fixed or settled and “istamrari”
meaning permanent or perpetual which indicates that the
arrangement was intended to be of a permanent nature with
fixed terms. It is further submitted that this type of land
settlement was a key feature of the Permanent Settlement (also
known as Istamrari Bandobast), introduced in Bengal, Bihar
and Orissa by Lord Cornwallis in 1793 through the Bengal
Decennial Settlement Regulation also known as Bengal
Regulation 8 of 1793. Such transactions were prevalent in the
State of Bihar during the existence of the zamindari system.
Learned senior counsel further submitted that Ext. 10/A can
even be construed as a grant of permanent tenure under Section
10 of the Bihar Tenancy Act, 1885 (for short, the ‘B.T. Act’),
whereunder the holder of a permanent tenure cannot be ejected
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by the landlord except on the ground of breach of conditions of
the contract. It is, thus, submitted that Ext. 10/A is not a
transaction that can be categorized as a lease as envisaged under
the T.P. Act or the B..B.C. Act. According to him, there is no
landlord-tenant or lessor-lessee relationship between the parties
under these laws.
27. Learned senior counsel submitted that the Patta Thika
Mokarrari Istamrari deed (Ext. 10/A), executed by Chaudhary
Mahant Raghunath Das upon acceptance of nazrana, created
absolute and heritable rights over the suit property, to be
enjoyed from generation to generation (naslan baad naslan and
batnan baad batnan).It is further submitted that so far as the
expressions thika, patta, and mokarrari are concerned, there is
no dispute between the parties. Both the Courts below have, in
fact, accepted that by virtue of Ext. 10/A, possessory rights over
the suit property were granted to the Club for the purpose of
running the Club on payment of a fixed rent which was not
subject to enhancement or reduction. Learned senior counsel
submitted that the real controversy is with regard to the term
“istamrari”, which has been completely overlooked by both the
Courts below. According to him, although the term clearly
indicates that the arrangement was permanent, the Courts below
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erroneously proceeded to hold that the deed (Ext. 10/A) creates
a lease/tenancy and that a landlord-tenant relationship exists
between the parties within the meaning of the T.P. Act and the
B.B.C. Act. It is further submitted that such a conclusion is
based merely on the use of terms like “rent” and the reversion
clause in favour of the Jaitpur Estate, without due appreciation
of the true nature and legal effect of the transaction as a whole.
However, the Thika Patta Mokarrari Istamrari deed in-question
(Ext. 10/A) conferred permanent, perpetual and heritable right
to the Club over the suit property. Reliance has been placed in
the case of Charan Mahton & Ors. vs. Kumar Kamakhya
Narayan Singh reported in AIR 1925 Patna 357.
28. Learned senior counsel submitted that the deed of
Thika Patta Mokarrari Istamrari (Ext. 10/A) cannot be treated
as a tenancy or lease either under the BBC Act or under the TP
Act. According to him, the deed is a special type of transaction
creating a permanent settlement, originating from the colonial
revenue system of the Mughal period. It is submitted that the
grounds for termination or determination of such a transaction
are specifically provided in the deed (Ext. 10/A) itself, and
therefore, the rights and liabilities of the parties must be
governed strictly by its terms. In that view of the matter, having
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regard to its true nature, a suit for eviction of the transferee
/Club is not maintainable either under the T.P. Act or under the
B.B.C. Act. Learned senior counsel further submitted that the
entire burden of proof was on the plaintiffs to establish that Ext.
10/A strictly falls within the ambit of Section 105 of the T.P.
Act so as to be treated as lease thereunder or that it creates a
tenancy within the meaning of the B.B.C. Act, particularly in the
light of the nature of the present suit and the pleadings on
record. However, according to him, the plaintiffs have failed to
bring their case within the scope of either of the aforesaid
provisions of law.
29. Learned senior counsel further submitted that in so far
as the B.B.C. Act is concerned, the plaintiffs have no case under
the aforesaid Act in view of the bar of res judicata. Reliance
has been placed on Ext. F wherein, it has been conclusively held
that no landlord-tenant relationship exists between the parties on
the basis of Ext. 10/A. It is further submitted that the present
suit based on Ext. 10/A and asserting tenancy under the said
Act, is barred by res judicata. There is no dispute that Ext. F
arose out of inter-party litigation and, therefore, the findings
recorded therein are binding on the parties. Learned senior
counsel further submitted that, in such circumstances, the
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present suit, instituted under the B.B.C. Act for eviction of the
Club from the suit premises, is not only barred by res judicata,
but is also barred by law of limitation.
30. Learned senior counsel further submitted that Ext.
10/A, being the original registered Thika Patta Mokarrari
Istamrari deed dated 17.07.1889, executed by Chaudhary
Mahant Raghunath Das in favour of A. N. Stuart, Secretary,
Station Club, Muzaffarpur, clearly states that the said grant was
made on a naslan baad naslan (generation after generation) and
batnan baad batnan basis for the purpose of running the Club. It
is further argued that the incorporation of the terms naslan
baad naslan and batnan baad batnan in the deed shows the
intention of the parties to confer rights of a permanent,
perpetual, and heritable nature upon the Club. In view thereof,
the plaintiffs are estopped from taking any plea to the contrary.
Learned senior counsel submitted that the recitals of the deed
clearly established that the intention of the parties to Ext. 10/A
was to create a permanent, perpetual, and heritable right in the
nature of a Thika Patta Mokarrari Istamrari over the suit
property, amounting to a permanent settlement, as opposed to
and in contradistinction with a lease under the T.P. Act.
31. Learned senior counsel further submitted that other
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provisions of the deed also clearly indicate the permanent nature
of the grant. In particular, the deed provides for reversion of the
property to the Jaitpur Estate in the event of the Club being
closed down or shifted elsewhere. It is emphatically submitted
that the said provision does not contemplate reversion of the
property to the executor of the deed, but specifically to the
Jaitpur Estate. Learned senior counsel pointed out that the
executor, Mahant Raghunath Das, has been described in the
deed as ‘maalik asthaldhari’, belonging to the ‘Bairagee sect’
and as a ‘chela’ of his ‘guru’, the erstwhile Mahant, namely
Mahant Raja Ram Das. Significantly, instead of referring to his
natural parentage, the deed mentions the name of his guru,
which emphasizing the religious and institutional character of
his position. It is further submitted that such description clearly
establishes that Mahant Raghunath Das was holding the
property in his capacity as a Mahant, having succeeded to the
Mahantship from his guru and that he was conveying the Math
property to the Club in that representative capacity. Learned
senior counsel, thus, argued that the property originally
belonged to the Jaitpur Estate, which had dedicated it to a deity
leading to the creation of the Math, of which the executor,
Mahant Raghunath Das was the Mahant at the time of execution
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of Ext. 10/A. Consequently, any ownership or interest in the suit
property, upon the death of the executor Mahant, would devolve
upon his duly appointed chela in accordance with the
established customs governing the institution.
32. Learned senior counsel further submitted that prior to
the execution of Ext. 10/A, the Mahant had executed an earlier
deed dated 13.08.1885 (Ext.10) in favour of A. N. Stuart,
whereby possessory rights over the suit property were granted to
the Club for a limited period of ten years, i.e., from 01.08.1885
to 01.08.1894, on payment of rent of Rs. 25/- per month. The
said deed (Ext. 10) was in the nature of a thika deed granted in
favour of the Club. It is further argued that during the
subsistence of the said deed (Ext. 10), Ext. 10/A came to be
executed, whereby the Mahant, with a view to enhance the
income from the property, granted permanent and perpetual
rights to the Club on a fixed (mokarrari) rent of Rs. 50/- per
month. This represented a substantial increase in income being
nearly double of the earlier earnings and also ensured a stable
and permanent source of income for the Math under all
circumstances. Learned senior counsel further submitted that at
the time of vesting, the ex-landlord/proprietor had retained the
suit property and saved it from vesting by filing returns in
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accordance with law, particularly when they were admittedly not
in khas possession. In such circumstances, the suit property was
no longer available to the plaintiffs and, therefore, they have no
locus to maintain the present suit. On the basis of the aforesaid
submissions, learned senior counsel submitted that the findings
recorded by both the Courts below, holding that Ext. 10/A is a
tenancy/lease under the B.B.C. Act or a lease within the
meaning of Section 105 of the T.P. Act are perverse, erroneous,
misconceived, and unsustainable in law.
33. Learned senior counsel, while making submissions on
the second substantial question of law relating to limitation,
submitted that the present suit is clearly barred by limitation and
that both the Courts below have erred in adopting an erroneous
approach in determining the said issue. It is further submitted
that as per the plaintiffs’ own case, the appellant-Club had
admittedly stopped payment of rent since July, 1956 and had
also set up a hostile title over the suit property during the
pendency of House Control Case No. 2 of 1955. The said
proceeding was, ultimately, dismissed on 30.08.1958 (Ext. F) on
the ground that no landlord-tenant relationship existed between
the parties. Learned senior counsel pointed out that it is evident
from the pleadings in the plaint as well as from the observations
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of the learned Lower Appellate Court that the total amount of
arrears of rent is Rs. 16,100/- calculated at the rate of Rs. 50/-
per month for 322 months, i.e., from July 1956 till the filing of
the present suit in May 1983. This clearly amounts to an
admission on the part of the plaintiffs that rent had not been paid
since July 1956, thus furnishing a cause of action as early as
1955-1958, which is binding upon them. It is further contended
that despite accrual of the cause of action for eviction and
recovery of rent, particularly in view of the assertion of hostile
title by the Club and dismissal of the eviction proceeding in
1958, no suit was instituted until 1983. Consequently, the suit is
clearly barred by limitation. Reliance has been placed on the
decision in the case of Nagindas Ramdas vs. Dalpatram
Ichharam @ Brijram & Ors. reported in AIR 1974 SC 471 to
submit that admissions in pleadings are binding on the party
making them and can form the foundation of rights. Learned
senior counsel further argued that although certain pleadings
indicating accrual of cause of action in 1955-1958 appear to
have been deleted with a mala fide intention to overcome the
bar of limitation, the calculation of arrears of rent (Rs. 16,100/-
at Rs. 50/- per month) remains as an unamended admission and
clearly relates back to the period of July, 1956. It is further
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submitted that the earlier Eviction proceeding filed by Raghava
Prasad Narain Sinha against the Club culminated in the
dismissal of House Control Case No. 2 of 1955 by order dated
30.08.1958 (Ext. F), wherein, upon consideration of Ext. 10/A,
the House Controller held that no landlord-tenant relationship
existed between the parties under the B.B.C. Act, particularly in
view of the hostile title set up by the Club. In view of the
aforesaid facts and circumstances, learned senior counsel
submitted that the present suit is clearly barred by limitation.
34. Learned senior counsel submitted that the learned
Trial Court has erred in holding that House Control Case No. 2
of 1955 was rejected vide Ext. F on the ground of lack of
jurisdiction of the House Controller and in treating the said
order as non est in law in order to save the suit from limitation.
It is further submitted that the learned Trial Court has wrongly
held that the suit was filed within the statutory period of
limitation on the premises that forfeiture on the ground of
hostile title claimed by the lessee takes effect only after service
of a notice in writing under Section 111(g) of the T.P Act.
Relying on the notice dated 25.02.1983 (Ext. 3) issued under
Section 106 of the Act, the Trial Court erroneously concluded
that the suit was within limitation. Learned senior counsel
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further submitted that the Trial Court committed an error itself
in relying upon Ext. 1/Z-13 to Ext. 1/Z-15, being letters
purportedly written by the ancestors of the plaintiffs to the Club
to presume that rent had been adjusted against outstanding
membership fees and, therefore, must have been paid at least up
to March, 1973. It is further argued that despite the specific case
of the defendants that the said letters were forged and fabricated,
the Trial Court wrongly held that in the absence of any
application for expert opinion by the defendants, the plea of
forgery was not proved. According to learned senior counsel,
such reasoning is erroneous, as the burden to prove the
genuineness of the documents is squarely on the plaintiffs, and
not on the defendants. The Trial Court, by shifting the burden
and drawing presumptions in favour of the plaintiffs, has
committed a serious error of law in concluding that rent was
paid up to March, 1973 and, on that basis, bringing the suit
within the period of limitation.
35. Learned senior counsel, appearing on behalf of the
appellants, vehemently submits that the learned First Appellate
Court has, surprisingly, made out an entirely new and a third
case which was not even pleaded by the plaintiffs by relying
upon Ext. 7/h to hold that the title of the plaintiffs was first
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denied by the Club in 1973-74 in the Tanaza case and that the
lease was determined under Section 111(g)(2) of the T.P. Act
through Ext. 3 (notice of determination dated 25.02.1983 under
Section 106 of the T.P. Act) and on that basis held that the suit is
not barred under Section 27 and Articles 66 or 67 of the
Limitation Act. Further submission is that the present suit is
barred by limitation due to the operation of Section 27 and
failure to fulfill the requirement of Article 66 of the Limitation
Act, 1963. It is further submitted that Article 67 of the
Limitation Act has no application to the facts of the present
case.
36. Learned senior counsel for the appellants further
submits that Exts. 1/z-13 to 1/z-15 are unregistered/plain
documents, the genuineness whereof has been categorically
denied by the defendants, who have specifically asserted that the
said letters are forged and fabricated. It is submitted that
although the learned courts below noticed such denial, they
nonetheless erred in law in placing the burden on the defendants
to prove the forged character of those documents by examining
an expert. It is next submitted that the settled position of law is
that once genuineness of a plain document being relied upon by
one party is questioned by the other party, the party who is
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relying upon such document must satisfy the Court of its
genuineness by positive proof by examining an expert and the
party denying its genuineness cannot be saddled with the burden
of presenting negative proof or proving the negative, i.e., proof
that the document in-question is not genuine. In support of the
aforesaid submission, reliance has been placed on the decision
of Hon'ble Apex Court in the case of Thiruvengadam Pillai v.
Navaneethammal reported in (2008) 4 SCC 530: AIR 2008 SC
1541. This principle has been relied upon and reiterated by the
Hon’ble Apex Court in the case of Joseph John Peter Sandy v.
Veronica Thomas Rajkumar & Anr., reported in (2013) 3 SCC
801: AIR 2013 SC 2028. Thus, the learned courts below have
wrongly shifted the onus of proving the genuineness of the
documents. It is submitted that the plaintiffs have failed to prove
that rent was being paid up to the year 1973.
37. Learned senior counsel for the appellants submitted
that the learned Lower Appellate Court had also held that as per
the original plaint, rent was not paid after June 1956, but later
on the term ‘June 1956’ was replaced by ‘several months and
years’, while the original pleading that a total amount of Rs.
16,100/- is outstanding as rent was not removed. It is further
submitted that the finding of the learned Lower Appellate Court
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that title of plaintiffs was first denied by the Club in 1973-74 in
the Tanaza case is a third case made out by the learned Lower
Appellate Court which was never pleaded by the plaintiffs.
Further reliance has been placed on the judgment of the Hon’ble
Supreme Court in the case of Union of India v. Ibrahim Uddin
& Anr., reported in (2012) 8 SCC 148, wherein, at paragraph
85.6, it has been held as follows:-
“85.6. The court cannot travel beyond the
pleadings as no party can lead the evidence on an
issue/point not raised in the pleadings and in case,
such evidence has been adduced or a finding of
fact has been recorded by the court, it is just to be
ignored……... "
38. It is next submitted that the period of limitation for
filing the present suit, as framed, commenced on 30.08.1958
when the order (Ext. F) rejecting House Control Case No. 2 of
1955 was passed. However, since no steps were taken thereafter
for a continuous period of 12 years, not only the remedy but
also the right of the plaintiffs, if any, in respect of the suit
property as claimed in the present suit stood extinguished on
expiry of 12 years from 30.08.1958. Consequently, by operation
of Section 27 of the Limitation Act, the plaintiffs have no right,
title or interest in the suit property.
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39. So far as the bar of res judicata is concerned, it is
submitted by learned senior counsel for the appellants that from
a perusal of Ext. F, it is evident that Controller of Buildings has
not held that the Eviction application filed by Raghava Prasad
Narain Sinha was outside his jurisdiction due to territorial,
pecuniary or some other bar which rendered the Controller of
Buildings coram non judice, but has rejected the claim of
eviction on merits, holding that the ‘mokarrari istamrari’ deed
makes it clear that there is no landlord-tenant relationship
between the parties which makes Eviction proceeding non-
maintainable under the B.B.C. Act. The said order of Ext. F was
passed on merits of the matter going to the root question of
existence of landlord-tenant relationship between the parties.
The conclusion of learned Trial Court that Ext. F cannot be seen
is unsustainable and Ext. F clearly operates as res judicata to bar
the filing of the present suit under B.B.C. Act. In view of the
fact that Ext F was, admittedly, not assailed before the
Commissioner under Section 18 of B.B.C. Act, 1947 and, thus,
in view of the decision of the Hon’ble Supreme Court in the
case of Rai Brij Raj Krishna & Anr. v. S.K. Shaw & Brothers,
reported in AIR 1951 SC 115 (paras 13 and 14), Ext. F has
attained finality under Section 18(3) and cannot be questioned
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in any Civil Court on the issues decided and thus, Ext. F also
operates as res judicata in view of statutory bar as also in view
of principles of Section 11 of the Code of Civil Procedure,
1908.The aforesaid view, on the question of finality of Ext. F
and the applicability of the principle of res judicata was further
quoted with approval in paragraph 10 of the Constitution Bench
judgment of the Hon’ble Supreme Court in the case of V.
Dhanapal Chettiar v. Yesodai Ammal reported in (1979) 4 SCC
214.
40. Learned senior counsel for the appellants further
submitted that admittedly at the time of filing of House Control
Case no. 2 of 1955, the B.B.C. Act, 1947 was in force. Before
order of Ext. F was passed on 30.08.1958, the B.B.C. Act, 1947
was amended vide the Bihar Buildings (Lease, Rent & Eviction)
Control (Amendment) Act, 1955 which contained a savings
clause in Section 23 thereof. From the reading of the aforesaid
section, it is clear that although the Amendment Act, 1955
changed the forum for Eviction proceeding from the Controller
of Buildings to the Civil Court, but it saved proceedings that
were already pending before the Controller of Buildings at the
time of enforcement of the amendment and provided that the
said proceeding notwithstanding the amendment would be
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continued to be decided by the Controller, and as such, the
Controller of Buildings, while passing order of Ext. F, holding
that there is no landlord-tenant relationship between the parties
under the B.B.C. Act, was completely within his jurisdiction to
pass the order of Ext. F which is perfectly legal and valid and
having admittedly not been assailed before higher forums, has
become final and binding on the parties and, thus, the learned
Courts below, especially learned Trial Court, have seriously
erred and acted perversely in treating the order of Ext. F as
without jurisdiction and non-est in law and further, that it cannot
be seen. The eviction proceeding under B.B.C. Act having been
dismissed vide Ext. F in 1958 and the dismissal having become
final, the same operates as res judicata to bar the present suit
under Section 11 of the BBC Act.
41. So far as the substantial question of law as framed by
this Court is concerned, learned senior counsel for the appellants
submitted that the learned First Appellate Court has committed
an error of record in reading of Ext. F, which clearly sets out the
claim of hostile title based on Ext. 10/A by and on behalf of the
Club in the written objection filed in that case, which was duly
noticed and considered in detail in Ext. F. The learned House
Controller, while appreciating Ext. 10/A and the defence of the
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Club, recorded a categorical finding that Ext. 10/A confers
absolute right to the Club over the premises in-question and
further held that the ‘mokarrari istamrari’ deed clearly
establishes that there exists no relationship of landlord and
tenant between the parties and, therefore, the proceeding under
the B.B.C. Act was not maintainable. It is submitted that the
Controller, while dismissing the eviction petition, in clear terms
held that the opposite party (Club) has got absolute right over
the premises in-question under the ‘mokarrari istamrari’ deed
and that this is not a fit case in which relationship of landlord
and tenant within the purview of the B.B.C. Act can be said to
have been established. With these observations, the petition was
rejected as being outside the scope of adjudication under the
said Act. It is, thus, submitted that the Club had set up a hostile
and absolute title in itself on the basis of Ext. 10/A and the
Court, with full knowledge of the predecessor-in-interest of the
plaintiffs, accepted the said position, and as such, if, at all, any
forfeiture occurred, the same had necessarily occurred in the
proceeding during 1955-1958 as evident from the final order
dated 30.08.1958 (Ext. F). The finding of the learned First
Appellate Court that no such forfeiture occurred is wholly
perverse being an error of record and is liable to be set aside.
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Moreover, the learned First Appellate Court has held that the
alleged denial of title by the Club occurred for the first time in
1973-74 in the Tanaza case (Ext. 7/h) and the lease was
determined under Section 111(g)(2) of the T.P. Act through Ext.
3 (notice of determination dated 25.02.1983) and, therefore, the
suit is not barred under Section 27 or Articles 66 or 67 of the
Limitation Act. It is submitted that this finding is wholly
perverse as there is absolutely no pleading to the effect that
hostile title was first claimed only during the Tanaza case in
1973-74, and as such, any evidence, even if assumed to exist, is
inadmissible in absence of pleadings. It is further submitted that
the learned First Appellate Court has proceeded on a case not
set up in the pleadings of the plaintiffs and has relied upon
inadmissible material rendering the findings perverse and liable
to be ignored. Reliance has been placed on the decision in the
case of Ibrahim Uddin (supra) and in the case of Trojan &
Company vs. RM. N.N. Nagappa Chettiar reported in AIR
1953 SC 235 (para 38).
42. It is further submitted that the mutation
proceeding/Tanaza proceeding do not affect the issue of title,
and the question of title was never decided in those proceeding.
It is further submitted that in fact, in such proceeding the claim
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was not raised for the first time; rather, it was a continuation and
re-assertion of a long-standing claim already asserted and
substantiated in Ext. F as early as in 1958 itself. So far as
limitation is concerned, it is submitted by learned senior counsel
for the appellants that both the learned Courts below have erred
in law in treating the notice of forfeiture (Ext. 3), on account of
setting up of title as relevant whereas, the same is not relevant
as has already been discussed earlier. It is submitted that Article
66 of the Limitation Act clearly provides that the starting point
of limitation is the incurring of forfeiture and not the service of
notice, which depends only upon the convenience of the
plaintiffs and the plaintiffs cannot be permitted to
extend/enlarge the starting point of limitation at their own
choice. It is further submitted that the notice, even as per the
respondents’ own arguments, is no longer required after the
1929 amendment of the T. P. Act in respect of past leases, as
observed by the Hon’ble Supreme Court in the case of V.
Dhanapal Chettiar (supra) wherein a Seven-Judge Constitution
Bench of the Hon’ble Supreme Court was dealing with the
question as to whether a notice under Section 106 of the T.P. Act
determining the lease is necessary for obtaining a decree of
eviction under State Rent Acts and while dealing with this issue
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the Hon’ble Seven-Judge Bench discussed various aspects of the
interplay between the State Rent Acts and the T. P. Act and held
that the said notice is a mere surplusage and is not required to be
given for the purpose of obtaining a decree of eviction under
State Rent Control Acts, i.e., B.B.C. Act in the present case.
However, while dealing with this aspect, the Constitution Bench
also held that notice contemplated under Section 111(g)(2) of
the T.P. Act for determining the lease on account of forfeiture
mentioned therein is different from a notice for determination of
tenancy under Section 106 read with Section 111(h). Thus, on
the point of notice, the aforesaid judgment is relied upon only
for the purpose that a separate and specific notice under Section
111(g)(2) of the T. P. Act is required to determine the lease on
the ground of forfeiture and a composite and vague notice such
as Ext. 3 is insufficient if the Court is of the opinion that such
notice is required and in absence of such specific notice with
clear intention to determine the lease on that ground giving
specific date as to when the forfeiture occurred which is not
mentioned in Ext. 3, the present suit is not maintainable on the
ground of forfeiture in terms of Section 111(g) of the T. P. Act. It
is further submitted that it is apparent from the materials
available on record that upon denial of title of the plaintiffs by
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the Club in the earlier proceeding, Raghava Prasad Narain Sinha
or any member of the plaintiffs’ family could have either filed a
suit for recovery of possession under the T. P. Act on the ground
of denial of title by the Club or under general law by asserting
his title and, that too, within a period of 12 years from 1958, but
the same has, admittedly, not been done either by Raghava
Prasad Narain Sinha or by any predecessor-in-interest of the
plaintiffs or even by the plaintiffs before 1970.
43. Lastly, learned senior counsel for the appellants
submits that the suit is liable to be dismissed for suppression of
material facts. It is submitted that the present suit was filed by
deliberately suppressing the vital material facts relating to the
institution and dismissal of a previous eviction proceeding, i.e.,
House Control Case No. 2 of 1955, which was filed for eviction
of the Club by the predecessor-in-interest of the plaintiffs and
which has a direct and material bearing on the question of
limitation as well as the maintainability of the present suit. It is
submitted that the said proceeding and its rejection have been
brought on record as Ext. F by the defendant-appellant Club,
which has neither been challenged nor refuted in any manner by
the plaintiffs and the existence of the said eviction proceeding
and its rejection vide Ext. F is an admitted and undisputed fact.
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It is further submitted that the law in this regard is well settled
that a person who approaches the Court praying for a relief must
not deliberately conceal any vital fact so as to obtain a
favourable judgment and such kind of concealment amounts to
fraud which can be questioned at any stage even in collateral
proceeding and the plaintiffs can be non-suited on this ground.
Reliance has been placed on the judgment in the case of S. P.
Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by
LRs & Ors., reported in (1994) 1 SCC 1 and also on the recent
judgment in the case of State of Orissa & Anr. v. Laxmi
Narayan Das (Dead) through legal representatives & Ors.,
reported in AIR 2023 SC 3425 : (2023) 15 SCC 273, wherein in
a similar case the Hon’ble Supreme Court held that the writ
petition ought to be dismissed on the ground of concealment of
material facts regarding filing and withdrawal of the civil suit
claiming the same relief, which fact came to light only at the
stage of hearing of the appeal. It is, thus, submitted that in view
of the settled position of law that any judgment or decree
obtained by fraud is a nullity in the eyes of law and can be
challenged at any stage, the present suit deserves to be
dismissed on this ground alone.
44. Per contra, Mr. J. S. Arora, learned senior counsel
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appearing for the plaintiffs-respondents while answering the
first substantial question of law submits that the Patta Thika
Mokarrari Istamrari deed dated 17.07.1889 (Ext. 10/A) does
not envisage a transaction of permanent or perpetual lease
creating any absolute right in favour of the appellants so as to
protect them from being evicted from the suit premises. It is
further submitted that the said ‘Patta Thika Mokarrari
Istamrari’ deed is in respect of the buildings situated on the
premises and not to any agricultural land. The said document
itself shows the nature and extent of the rights and interest
conferred on the Club by the said registered deed dated
17.07.1889 (Ext. 10/A). It is further submitted that settlement of
land can be made only under the B.T. Act and for such
settlement two essential ingredients must be satisfied, namely,
that the settlor must be a ‘Zamindar’ of the land sought to be
settled and that the land must be agricultural in nature being
used for the purposes of cultivation, as contemplated under
Sections 5(1) to 5(3) of the B.T. Act. As a matter of fact,
Chaudhary Mahant Raghunath Das himself was a ‘raiyat’ and
not a ‘Zamindar’ or tenure-holder in respect of the lands on
which the house-building situated, which is the subject matter of
Ext. 10/A. It is submitted that this fact stands proved from the
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‘Zamindari’ receipts (Ext. 2/I to 2/Z-5) as well as from the order
sheet of Rent Execution Case No. 95 of 1946 (Ext. 7/B), which
was filed by the ‘Zamindar’ of the said lands, namely,
Mohammed Ismail Khan, against the heirs of Mahant
Raghunath Das for execution of the decree passed in Rent Suit
case no. 322 of 1944, and in the said execution proceeding, rent
was recovered from the raiyat/judgment-debtor, which clearly
establishes the status of Mahant Raghunath Das as a raiyat. It is
further submitted that Mahant Raghunath Das was never the
Zamindar of the land in-question, which fact also stands
admitted by the defendant-appellants themselves, inasmuch as
they have pleaded in their written statement that the Zamindari
rights in respect of the land were purchased by them from the
Zamindar through two registered deeds of sale dated 26.02.1896
and 25.05.1899, which have been brought on record as Exts.
10/B and 10/C. It is further submitted that even after vesting of
Zamindari, the claim/Tanaza raised by the Club for recognition
of its ownership over the said land was rejected at all levels, and
the orders to that effect have been brought on record as Ext. 7/C
and Ext. 7/D, whereby Mahasundari Kuer, the daughter-in-law
of Mahant Raghunath Das, was recognized as the owner and the
Club did not succeed in any Court. It is further submitted that it
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is an admitted case of the defendants-appellants that the subject
matter of the alleged lease was a building meant for occupation
of the Club as a Club House along with structures and orchards
appurtenant thereto and, therefore, the same is purely a tenancy
of a building on non-agricultural land, which does not fall
within the scope and ambit of the B.T Act. It is further
submitted that a raiyat cannot settle or create proprietary rights
of the nature as claimed by the defendant-appellants and,
therefore, the contention of the appellants that the registered
deed dated 17.07.1889 (Ext. 10/A) amounts to a ‘settlement’
conferring ownership rights under the B.T. Act is wholly
unsustainable and misconceived. It is submitted that the said
‘Patta Thika Mokarrari Istamrari’ deed is not a document of
settlement of land, but is merely a document of lease of a
building, which was initially governed by the T. P. Act and
thereafter by the B.B.C. Act by implication of law. It is further
submitted that the nature of a document is to be determined
from its contents and not from its nomenclature and in the
present case, Ext. 10/A does not fulfill the essential
requirements of a deed of settlement as claimed by the
appellants. It is further submitted that the defendants-appellants
have been regularly making payment of rent specifically
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described as “Club House Rent” and from the letters of the
defendants brought on record as Ext. 1 to 1/Z-14, particularly
Ext. 1/d, it is clearly admitted in categorical terms that the rent
was not for the land but for the “Club House”. These undisputed
facts and admissions leave no scope for the appellants to
contend that there was any settlement of land. It is, therefore,
submitted that the said document dated 17.07.1889 (Ext. 10/A)
is neither a document of settlement of land nor does it create any
agricultural tenancy, but is only a registered lease of a building
and cannot be construed as a document of title or as a
Mokarrari settlement of land under any Statute. The tenancy
created thereunder is only in respect of the Club House in
favour of the Club and not of the land, as claimed by the
appellants.
45. It is submitted by learned senior counsel for the
plaintiffs-respondents that the defendants-appellants have taken
a plea that they have not admitted the documents marked as Ext.
1 series, but at the same time they have admitted payment of
rent up to 1956 even in Ext. F itself, which contains such
admission and further the cheque numbers mentioned by them
regarding payment of rent, as reflected in the order contained in
Ext. F, fully tally with the cheque numbers mentioned in the
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Ext. 1 series. It is further submitted that from the recital of Ext.
10/A, it is quite apparent that the said document has been
created for the purpose of creating a tenancy with regard to the
buildings/structures situated in the premises and not for the land
for any agricultural purpose, at all, and the defendants-
appellants have not pointed out under which law or under which
provision there can be any ‘Patta Thika Mokarrari Istamrari’
with regard to a building. It is submitted that the further case of
the defendants-appellants that the said document is a deed of
permanent settlement and that they have acquired title by virtue
of the same is wholly misconceived. It is also submitted that the
said Club being an unregistered body had no right to enter into
any such deed and on that ground also the same is void. It is
further submitted that the defendants-appellants, in support of
their contention, placed reliance on the judgments rendered in
the case of Ram Rachhya Singh vs. Kumar Kamakhya
Narayan Singh reported in AIR 1925 Patna 216 and in the case
of Charan Mahton (supra) to submits that the document ‘Patta
Thika Mokarrari Istamrari’ is to be treated as a permanent
settlement, but even that submission is not correct, inasmuch as
in the said case the settlor was admittedly a Zamindar and the
property settled was agricultural land meant for cultivation and
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not for any building or non-agricultural purpose. As such, the
said judgment is of no assistance to the defendants-appellants
even if the document in-question, is sought to be treated as a
document of settlement of agricultural land. It is further
submitted that the contention of the defendants-appellants that
the suit is barred by limitation in light of the order passed by the
House Controller (Ext. F) is wholly untenable. It is submitted
that the defendants-appellants have claimed that their hostile
possession commenced from July 1956 on account of denial of
the relationship of landlord and tenant and non-payment of rent
thereafter, but the records clearly show that the appellants
continued to make payment of rent up to December 1958 and
not merely up to 1956, as is evident from Ext. 1/Z-10. It is
submitted that the said document is not merely a letter, but
contains details of the cheque numbers through which the Club
made payment of rent and the defendants-appellants have not
brought any material on record to show that the cheque numbers
mentioned therein did not belong to them. It is further submitted
that the order dated 30.08.1958 (Ext. F) itself records that the
defendants were consistently paying rent to the landlord and had
cleared all arrears up to 30.06.1956, whereas Ext. 1/Z-10 clearly
shows payment of rent up to December 1958, the said letter
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being dated 23.03.1959.
46. It is further submitted by learned senior counsel for
the plaintiffs-respondents that, in fact, the first express denial of
title by the appellants-defendants arose only during the Tanaza
proceeding of 1973-74. It is further submitted that under Section
111(g) of the T. P. Act, forfeiture commences only upon service
of notice by the landlord and not prior thereto. In the present
case, notice was given by the plaintiffs-respondents on
25.02.1983 and the suit was filed soon thereafter and, therefore,
the suit is well within the period of limitation. It is further
submitted that according to the own admission of the
defendants-appellants, after coming in occupation of the
premises in-question on the basis of Ext.10/A, the Club
continued to make payment of rent from 1889 to 1956 and once
the said document is accepted as a document of lease, the
relationship of landlord and tenant between Mahant Raghunath
Das and his successors stands admitted. It is submitted that this
is further supported by regular payment of rent by the Club from
1889 to 1956, as admitted by the defendants-appellants, which
leaves no scope for them to deny the title and ownership of the
successors of Mahant Raghunath Das or to deny the relationship
of landlord and tenant. It is further submitted that once the
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commencement of tenancy and the relationship of landlord and
tenant are not in dispute, the occupation of the Club over the
premises in suit becomes a permissive occupation/possession,
which gives no scope to the defendants-appellants to deny the
title and ownership of the successors of Mahant Raghunath Das
or to claim adverse possession in view of Section 116 of the
Evidence Act and in view of the settled law that a tenant, unless
he surrenders and restores possession to the landlord, cannot
claim adverse possession, as enunciated in the case of
Surajmal Marwai & Ors vs. Rampearaylal Khandelwal & Ors.
reported in AIR 1966 Patna 8 (DB) (paras 7 to 11), and also
reaffirmed in the case of Ram Kumar v. State of Uttar Pradesh
and Ors. reported in (2023) 16 SCC 691. It is further submitted
that inconsistent pleas of title and adverse possession cannot be
taken by the same party, as laid down in several judgments
including in the case of Karnataka Board of Wakf v.
Government of India and Ors. reported in 2004 (3) PLJR (SC)
245 (paras 11-12).It is further submitted that a suit based on
default in payment of rent is not barred by limitation, inasmuch
as rent is payable month to month, giving rise to a continuous
cause of action and a fresh cause of action arises every month
when the rent is not paid. It is submitted that it is only the
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amount of arrears of rent which may become barred by
limitation, but not the suit for eviction of the tenant on the
ground of default. It is further submitted that the contention of
the defendants-appellants that the suit is barred by limitation
based on Ext. F is wholly misconceived, inasmuch as the said
Court, while holding that it had no jurisdiction, could not have
recorded any finding with regard to title of the property. It is
submitted that once the Court itself held that it had no
jurisdiction on account of non-existence of relationship of
landlord and tenant, it had no jurisdiction to pass any other order
or record any finding, particularly, with regard to title, except to
dismiss the case. It is, thus, submitted that any observation made
in Ext. F with regard to title is wholly without jurisdiction, void
and a nullity in the eyes of law and cannot be relied upon or
taken advantage of by the defendants-appellants. It is further
submitted that it is a settled principle of law that any finding
recorded by a Court having no jurisdiction is of no value in the
eyes of law and does not bind the parties and further that any
order passed by a Court on the question of its own jurisdiction is
not conclusive and does not operate as res judicata in
subsequent proceeding.
47. It is further submitted by learned senior counsel for
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the plaintiffs-respondents that the claim of title set up by the
defendants-appellants has never been adjudicated by any Court
earlier nor have they made any counter-claim in the present suit.
It is further submitted that any vague and unadjudicated finding
contained in Ext. F, passed by the House Controller in an
eviction proceeding is wholly without jurisdiction inasmuch as,
the said Court was competent only to decide the issue of
eviction and had no jurisdiction to adjudicate in respect of title
or any matter beyond the scope of eviction proceeding. It is
further submitted that once the Court, while dealing with the
eviction proceeding, came to the conclusion that in absence of
relationship of landlord and tenant it had no jurisdiction, it
ought to have confined itself only to hold that the case was not
maintainable and had no jurisdiction to proceed further or to
record any finding with regard to the title of the property in-
question. It is further submitted that the defendants-appellants
had suppressed material documents filed by the plaintiffs which
contained admission of the landlord’s title by the Club and by
such suppression obtained the said order and, therefore, the
observation/finding recorded in Ext. F is vitiated by fraud and is
a nullity in the eyes of law, in view of the law laid down in S.P.
Chengalvaraya Naidu ( supra).
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48. It is further submitted by learned senior counsel for
the plaintiffs-respondents that it is quite apparent from Ext. 10/A
that the rent payable is Rs. 50/- per month, and therefore, in
view of the admission of the appellants themselves that they
have not made payment of rent for years together, according to
them after 1956, they on their own admission are defaulters in
payment of rent and are, thus, liable to be evicted from the
premises under the tenancy. It is further submitted that the
learned Trial Court has rightly held the defendants-appellants to
be defaulters in payment of rent and has, accordingly, decreed
the suit for eviction and on appeal being preferred by the
defendants-appellants, the learned First Appellate Court has
affirmed the said findings of the learned Trial Court. Since the
appellants-defendants have neither paid nor tendered any rent
since 30.06.1956 in terms of the registered lease deed dated
17.07.1889 and have further expressly denied the relationship of
landlord and tenant between the parties by setting up a plea of
ownership by adverse possession without even surrendering or
restoring possession of the tenanted premises upon
determination of the lease, they are liable to be evicted.
49. So far as the substantial question of law with regard to
forfeiture under Section 111(g)(2) of the T.P. Act is concerned, it
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is submitted by learned senior counsel for the plaintiffs-
respondents that forfeiture is a mode of determination of lease
which occurs when the lessee renounces his character as such by
setting up a title in a third person or by claiming title in himself.
It is submitted that the said principle is well founded on the
doctrine that a tenant cannot at the same time enjoy the benefits
of tenancy and deny the title of the landlord, as one cannot be
permitted to approbate and reprobate. It is further submitted that
what is material to be noted is that mere non-payment of rent
does not amount to a disclaimer by the lessor to the lessee so as
to indicate any intention to set up a claim of title over the
tenanted premises. It is next submitted that the learned First
Appellate Court has rightly held that there was, in fact, no
forfeiture within the meaning of Section 111(g)(2) of the T.P.
Act during the proceeding before the House Controller in House
Control Case No. 2 of 1955, which had been instituted by the
predecessor of the plaintiffs-respondents under Section 11(3)(e)
of the B.B.C. Act, 1947. It is further submitted that the order
passed by the House Controller does not operate as res judicata
between the parties inasmuch as, any decision or order passed
by a Court or Tribunal which lacks jurisdiction to try such a
cause is a nullity in the eyes of law under Section 44 of the
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Evidence Act and, therefore, cannot bind the parties or affect
their rights in subsequent proceeding.
50. It is submitted by learned senior counsel for the
plaintiffs-respondents that the appellants-defendants have
forfeited whatever heritable and perpetual rights, if any, flowing
under the registered lease deed dated 17.07.1889 by setting up a
claim of absolute ownership over the tenanted premises during
the Tanaza proceeding before the Revenue Authorities in the
year 1974. It is submitted that this was the first occasion when
the appellants-defendants attempted to assert title in themselves
by way of adverse possession, therefore, the period of limitation
as prescribed under Articles 66 and 67 of the Limitation Act,
1963 would operate only from such date when the landlord
issues a notice to the lessee/tenant to determine the lease in
accordance with Section 111(g)(2) of the T.P. Act and not from
the mere denial of title by the tenant. It is submitted that in the
present case, the plaintiffs-respondents have issued notice
determining the registered lease deed dated 17.07.1889, thus,
fully complying with the requirements of Section 111(g)(2) of
the T.P. Act. It is further submitted that the case of the plaintiffs-
respondents stands fortified by the findings of the learned First
Appellate Court with regard to forfeiture on the part of the
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appellants, inasmuch as, even permanent tenancies of the nature
involved in the present case are subject to forfeiture under
Section 111(g)(2) of the T.P. Act. It is further submitted that the
learned First Appellate Court has rightly adjudicated that no
forfeiture had taken place during the proceeding before the
House Controller in House Control Case No. 2 of 1955 within
the meaning of Section 111(g)(2) of the T.P. Act and,
accordingly, the substantial question of law is liable to be
answered in favour of the plaintiffs-respondents. It is, thus,
submitted that the present second appeal filed by the
defendants-appellants is devoid of merit, and the judgments and
decrees passed by both the learned Courts below do not warrant
any interference and the present second appeal is liable to be
dismissed in toto.
51. Having considered the submissions advanced on
behalf of the parties, the materials available on record as well as
the impugned judgments, it becomes necessary before
adjudicating upon the substantial questions of law, to examine
the scope of the suit. The present eviction suit was filed for
eviction on the ground of personal necessity, default in payment
of rent as well as realization of arrears of rent for the last 3 years
at the rate of Rs. 50/- per month along with pendente lite and
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future interest at the bank rate till realization and compensation
in respect of damages occurred to the plaintiffs under the
provision of BBC Act.
52. It is settled principle of law that existence of
landlord-tenant relationship is sine qua non for maintaining a
suit for eviction under the B.B.C. Act. In any event, inquiry into
title of the plaintiffs is beyond the scope of Court exercising
jurisdiction under the B.B.C. Act. The scope of the inquiry
before the Court was limited to the question as to whether the
grounds of eviction of the defendants have been made out in the
B.B.C. Act. The question of title of the parties to the suit
premises is not relevant having regard to the width of the
definition of the terms ‘landlord’ and tenant in clause ‘f’ and ‘h’
of Section 2 of the BBC Act.
53.The substantial questions of law framed in the present
appeal are confined to examine the existence of a landlord-
tenant relationship between the plaintiffs and the defendants on
the strength of the ‘Patta Thika Mokarrari Istamrari’ deed
dated 17.07.1889 (Ext.-10/A). It is the case of the plaintiffs that
they are the owners of the suit property and that the said deed is
in the nature of a lease.
54. On the other hand, the defendants/appellants assert
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their rights on the basis of Patta Thika Mokarrari Istamrari’
deed dated 17.07.1889 (Ext.-10/A) claiming that it creates a
permanent, heritable and perpetual right over the suit property.
The interpretation of Ext.-10/A necessarily requires the
application of settled legal principles. In this context, substantial
question of law no. (i) has been framed, namely, whether Ext.
10/A dated 17.07.1889 envisages a transaction of
permanent/perpetual lease granting the appellants absolute
rights, including protection against eviction from the suit
premises.
55. The true meaning of Ext.-10/A can be gathered by
examining the legal meaning of the terms used in its
nomenclature. The word ‘Thika’ generally means a temporary
arrangement. ‘Patta’ refers to a document that shows lawful
possession or grant of land. However, the term ‘Istamrari
Mokarrari’ usually indicates a permanent and long-term right
over the property. It is not in dispute that the rent was fixed on
a permanent basis and the rights created were heritable. The
parties have admitted that the ‘Patta Thika Mokarrari
Istamrari’ deed dated 17.07.1889 (Ext.-10/A) was executed by
Choudhary Mahant Raghunath Das in favour of A.M. Stuart,
Secretary, Station Club, Muzaffarpur. On the strength of Ext.-
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10/A, the defendants came into possession of the suit premises.
The contents of the deed reveal that the rights granted were not
confined to the executantee alone, namely the Club, but were
expressly made heritable, as reflected in the expression “naslan
baad naslan and batnan baad batnan,” meaning from
generation to generation. The cumulative effect of the
document, along with the intention of the parties suggests that
the rights conferred are of a permanent, perpetual and heritable
character. It is the case of the plaintiffs that the defendants have
failed to pay the fixed rent at the rate of Rs. 50/- per month for
several months and years. It is further contended that Ext.-10/A
concerns only to the buildings standing on the suit premises and
does not relate to any agricultural land. They further contend
that settlement of land is permissible only under the B.T. Act,
subject to fulfillment of two essential conditions. Firstly, it is
contended that for a valid settlement of land, two essential
conditions must be fulfilled: the settlor must be the zamindar
( Land Lord) of the land in-question and second, the land must
be agricultural in nature, used for cultivation as contemplated
under Sections 5(1) to 5(3) of the B.T. Act. It is further
emphatically argued that Choudhary Mahant Raghunath Das did
not possess the status of a zamindar, but was only a raiyat or
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tenure-holder in respect of the land on which the house/building
was constructed. This is clearly reflected from Ext.-7/B being
Rent Execution Case No. 95 of 1946, in which Md. Ismail
Khan, as zamindar, instituted execution proceedings against the
heirs of Mahant Raghunath Das for realization of dues under the
decree passed in Rent Suit No. 322 of 1944. In the said
execution proceeding, rent was, in fact, recovered from the heirs
of Mahant Raghunath Das.
56. From the materials available on record, it is evident
that Mahant Raghunath Das was a raiyat in respect of the land
in-question. This clearly indicates that at the time of execution
of Ext.-10/A, Mahant Raghunath Das was the owner of the land
and building. The ‘Patta Thika Mokarrari Istamrari’ deed was
executed by Mahant Raghunath Das in his capacity as owner,
incorporating specific terms and conditions. By virtue of the
said deed, a perpetual lease conferring heritable tenancy rights
was created in favour of the appellant-Club. As per the aforesaid
deed, the Secretary of Station Club, Muzaffarpur along with his
heirs, administrators and assignees were entitled to retain
possession of the tenanted premises, subject to the obligation of
paying rent to the landlord and his successor-in-interest. The
document Ext. 10/A speaks about the obligation of the lessee
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(Station Club, Muzaffarpur) to pay municipal taxes, rent to the
ex-landlord and all other taxes that may accrue over and above
the rental amount, which are payable to the landlord. It is further
mentioned that the lease would stand terminated in the event of
the extinguishment or closure of Station Club, Muzaffarpur or if
the Club house is required to be shifted to another location or if
the leased premises are required by the landlord or his heirs,
assignees or administrators on account of personal necessity. In
such an event, the leased property was to revert to the Jaitpur
Estate and on payment of rent for the Club house, a receipt for
the same was to be issued to the Secretary of the Club. The
Station Club, Muzaffarpur, made payment of rent up to
December, 1958. However, the defendants-appellants have
admitted that the Club continued to pay rent from 1889 to 1956.
This fact is further corroborated by a series of letters written by
the Honorary Secretary of the Muzaffarpur Club, marked as Ext.
1 dated 28.10.32, Ext. 1/A dated 12.11.1932, and Exts. 1/e to 1/i,
all of which referring to the payment of rent in respect of the
Club House. Ext. 1 is the letter dated 28.10.1932, which
discloses that the Honorary Secretary requested Babu Badri
Prasad Narain Singh, M.L.C., Zamindar of Jaitpur Estate,
Muzaffarpur, to send his representative to collect the rent due
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for the Club House up to 31st December, 1932. Subsequently,
by letter dated 12.11.1932 (Ext. 1/A) it was informed that a
cheque for Rs. 900/- (Rupees Nine Hundred only), drawn on the
Imperial Bank of India, Muzaffarpur, had been sent in full
payment of the Club House rent for one and a half years, i.e.,
from July 1931 to December 1932, with a request to
acknowledge the same and issue a formal receipt for the said
amount. The record shows that vide letter dated 8th January,
1940, the Honorary Secretary of the Muzaffarpur Club informed
Raghava Prasad Narayan Sinha that a cheque for Rs. 600/-
(Rupees Six Hundred only) bearing No. OB/1 01946 and drawn
on the Imperial Bank of India, Muzaffarpur, was being sent
towards rent for the year ending 31st December, 1939.
Thereafter, by letter dated 25th January, 1940 (Ext. 1/f) a
request was made to issue an official stamped receipt in respect
of the cheque that had been forwarded through registered post.
Further, as per Ext. 1/g, the Honorary Secretary forwarded
cheque No. OB/1 04022 for Rs. 300/- (Rupees Three Hundred
only), drawn on the Imperial Bank of India, Muzaffarpur,
towards payment of Club House rent up to June, 1940 with a
request to acknowledge the same and issue an official stamped
receipt at the earliest.
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57. Likewise, by letter dated 24th December, 1941, the
Honorary Secretary of the Muzaffarpur Club enclosed a cheque
for Rs. 300/- (Rupees Three Hundred only) towards full
payment of Club House rent for the period from July to
December, 1941. Ext. 1/i is another letter issued by the
Honorary Secretary enclosing a cheque for Rs. 300/- (Rupees
Three Hundred only) towards rent for the half-year ending 30th
June, 1943. Further, vide letter dated 29.06.1945 (Ext. 1/j), a
cheque for Rs. 300/- (Rupees Three Hundred only) was sent
towards rent for the period from January to 30th June, 1945,
which shows that rent for the Club House was being regularly
paid through cheques time to time. Moreover, in terms of Ext.
1/Z-5, the Honorary Secretary forwarded cheque No. OB/1
18090, drawn on the Imperial Bank of India, Muzaffarpur, for
Rs. 300/- (Rupees Three Hundred only) towards rent due for the
term ending 31st December, 1952 and also undertook to remit
another cheque for the period up to December, 1953.
Subsequently, as per letter dated 23.03.1959 (Ext. 1/Z-10), the
Honorary Secretary informed Raghava Prasad Narayan Sinha
that a sum of Rs. 688.27 nP was being remitted towards
Mokarrari rent due up to December, 1958, after adjustment of
certain outstanding amounts payable by Mr. K.K. Singh and the
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addressee. Moreover, on perusal of Exts. 1/Z-13 to 1/Z-15, it
appears that the plaintiffs’ Club membership dues were adjusted
against the rent dues till March 1973. It is significant to note
that all such communications/letters issued by the Honorary
Secretary were written on the official letterhead of the Club.
58. In reply to the aforesaid letter, Raghava Prasad
Narayan Sinha stated that he regretted that adjustments in the
accounts had been made without his consent which was
essential. He further stated that such adjustment could be
allowed only if the ground rent due was paid in full up-to-date
in accordance with the terms of the deed along with the house
rent due up-to-date and requested the sender to submit cheques
for both the ground rent and house rent to avoid any litigation,
as reflected in Ext.1/Z-12 dated 5th May, 1959. These
documents show payment of rent up to December, 1958. All the
documents admit that the successor-in-interest of Mahant
Raghunath Das is the landlord and that Ext. 10/A is a lease deed
of tenancy in respect of the premises in suit. It further appears
that till 1958 the defendants paid rent for the Club House as
tenants. The defendants themselves have admitted that rent for
the Club House was paid from 1889 to 1956. Moreover, the
tenancy created through the ‘Patta Thika Mokarrari Istamrari’
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is a lease deed of tenancy and in terms of the said lease deed,
the defendants-appellants continued to pay rent up to December,
1958. Therefore, the conduct and admission of the defendants
do not permit them to challenge the deed in-question, as a deed
of title. The records further show that the defendants-appellants
and their predecessors accepted the status of the plaintiffs as
landlords and the relationship of landlord and tenant between
the parties stood admitted till 1956-58. Accordingly, the ‘Patta
Thika Mokarrari Istamrari’ deed is to be treated as a lease deed
of tenancy under which rent was paid up to the year 1958.
59. So far as the second substantial question of law is
concerned, i.e., whether Title Suit No. 69 of 1983 for eviction is
barred by the law of limitation, the defendants-appellants argue
that the appellant-Club, admittedly, stopped paying rent from
July, 1956 and asserted a hostile claim over the suit premises.
The case of the plaintiffs, however, is that the appellant-Club
stopped payment of rent from July, 1956 during the pendency of
House Control Case No. 2 of 1955, which had been filed for
eviction of the Club, inter alia, on the ground of default in
payment of rent and that the Club also set up a hostile claim
over the suit premises on the basis of the ‘Patta Thika
Mokarrari Istamrari’ deed dated 17.07.1889 (Ext. 10/A). It is
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further stated that vide order dated 30.08.1958 (Ext. F) passed
under the B.B.C. Act the said eviction suit was dismissed on the
ground of non-existence of a landlord-tenant relationship
between the parties relying upon the claim of title set up by the
Club on the basis of Ext. 10/A. In the aforesaid facts, the
defendants-appellants have vehemently submitted that the
present suit having been filed after expiry of 12 years is barred
by the law of limitation. It is also submitted that no appeal was
preferred against the order of the Rent Controller (Ext. F) nor
was any amicable settlement arrived at between the parties to
continue the tenancy, particularly, in view of the plaintiffs’ own
pleadings that the Club had stopped payment of rent since July,
1956. According to the defendants, this being clear admission
in the pleadings furnishing a cause of action in 1955-58 itself
and is binding upon the plaintiffs, as it is admitted that rent was
not being paid from July, 1956 and the eviction proceeding
stood dismissed in the year 1958. Thus, despite accrual of cause
of action for seeking eviction and recovery of rent, no suit was
filed until 1983 rendering the suit barred by the law of limitation
in view of such admission. However, this submission is required
to be scrutinized on the basis of the materials and evidence
available on record. In this regard, Ext. 1/Z-10 clearly reveals
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that despite the order passed by the Rent Controller (Ext. F), the
defendants-appellants continued to pay rent for the suit
premises. The conduct of the defendants clearly establishes that
even after passing of Ext. F, they continued to admit their status
as tenants. Letter No. MISC/6/59 dated 23rd March, 1959 (Ext.
1/Z-10), issued on the official letterhead of the Honorary
Secretary of the Muzaffarpur Club, reads as follows:—
No MISC/6/59. POST Box No.12
PHONE No. Muz. 17
The Hony. Secretary
Muzaffarpur Club.
Muzaffarpur 23rd March, 1959
To,
Raghava Prasad Narain Sinha Esq.,
Jaintpur Estate,
Jaintpur House,
Muzafferpur.
Dear Sir,
Mokarari rent due upto December 1958.
We are transferring Rs. 688.27nP.in payment
of the Mokarari rent due upto December 1958, less
the amount of bills due by Mr.K.K. Singh and
yourself.
Please acknowledge.
Yours faithfully,
Statement of account- Hony. Secretary
July 1956 to December
1958… … Rs. 1500.00
Bills against-
Mr. K.K. Singh Rs. 408.06
“ R.P. N Singh ” 403.69 “ 811.75
Rs. 688.25
=========”
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60. Although the defendants-appellants have denied the
genuineness of the said letter, it is evident that the other letters
issued by the Honorary Secretary since 1932 are almost all on
the official letterhead of the Club and relate to the payment of
rent for the Club House, Muzaffarpur. Ext. 1/Z-10 does not
disclose or assert any hostile title on behalf of the defendants.
61. The defendants-appellants, during the proceeding
before the Revenue Authority in Tanaza Case No. 4 of 1974,
claimed their title by way of adverse possession and asserted
themselves to be statutory tenants with permissive possession.
The defendants-appellants as well as the State of Bihar, applied
for mutation of their names in the revenue records relating to the
suit premises; however, the same was rejected on 31.03.1975.
Thereafter, the successors-in-interest of Mahant Raghunath Das
were recorded and jamabandi was created after vesting of
Zamindari on payment of rent and rent receipts were issued vide
Ext. 2 series. Subsequently, the respondents-plaintiffs issued a
notice dated 25.02.1983 under Section 106 of the T.P. Act and
thereafter, preferred the present suit on 13.05.1983, i.e., within
12 years of such unequivocal assertion made by the defendants-
appellants denying the landlord’s title amounting to a forfeiture
of tenancy. It is apparent from the record that no hostile claim
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was raised after Ext. 1/Z-10 dated 23.03.1959 and the
defendants-appellants continued to pay rent from July, 1956 to
December, 1958. Therefore, the suit is not barred by the law of
limitation.
62. With regard to substantial question of law no. (iii) is
concerned, namely, whether the instant suit is barred by the
principle of res judicata in view of the order dated 30.08.1958
(Ext. F) passed in House Control Case No. 2 of 1955, wherein,
it was held that there was no relationship of landlord and tenant
subsisted between the parties, the appellant-Club has
vehemently submitted that the son of Mahant Raghunath Das,
namely Raghava Prasad Narayan Sinha (uncle of original
plaintiff no. 1), had filed House Control Case No. 2 of 1955
before the Controller of Buildings, Muzaffarpur under the
B.B.C. Act against the members of the Station Club,
Muzaffarpur, seeking eviction from the suit property on the
grounds of default in payment of rent and personal necessity
relying upon Ext. 10/A ‘Thika Patta Mokarrari Istamrari’ deed
as a lease deed. In the said proceeding, the Station Club,
Muzaffarpur, denied the landlord-tenant relationship between
the parties and set up its own title over the suit premises on the
basis of Ext. 10/A. After hearing the parties and considering the
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nature of the deed and the claim of the Club, the Controller of
Buildings, Muzaffarpur, rejected the case vide order dated
30.08.1958 (Ext. F) holding that there was no landlord-tenant
relationship between the parties under the B.B.C. Act. It is
further submitted that after rejection of House Control Case No.
2 of 1955 (Ext. F), no appeal was filed by the heirs of Mahant
Raghunath Das and as such, the said order attained finality.
However, the present suit has been filed after about 25 years of
rejection of the said House Control Case, inter alia, claiming
eviction under the B.B.C. Act on the grounds of default in
payment of rent and personal necessity which, according to the
appellants-defendants, is clearly barred by the principles of res
judicata, as no suit again under the B.B.C. Act on the strength of
Ext. 10/A can be maintained. It is also submitted by the learned
counsel for the appellants-defendants that the learned First
Appellate Court without properly considering the question of
res judicata arising out of Ext. F held that Ext. F has no effect
on the ground that it does not amount to forfeiture under Section
111(g) of the T.P. Act. According to the appellants-defendants,
the order passed in House Control Case No. 2 of 1955 holding
non-existence of landlord-tenant relationship between the
parties is binding upon the parties, including the plaintiffs who
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are litigating under the same title relying upon Ext. 10/A and
operates as res judicata so as to bar the present suit under the
B.B.C. Act.
63. On the other hand, learned senior counsel for the
plaintiffs-respondents submits that the present suit is not barred
by the principle of res judicata on the basis of the order dated
30.08.1958 passed by the House Controller in House Control
Case No. 2 of 1955. It is asserted that the Controller had no
jurisdiction to pass such an order, and as such, the order passed
under the B.B.C. Act is not applicable to the present case. The
contention is limited to the plea of inherent lack of jurisdiction
of the authority in passing the said order.
64. Moreover, in the present case, subsequent to the order
dated 30.08.1958 passed in House Control Case No. 2 of 1955,
the defendants-appellants admitted in their letters dated
23.03.1959 (Ext. 1/Z-10) and Exts. 1/Z-13 to 1/Z-15
(membership fee due adjusted against rent due till 1973) much
after passing of the aforesaid order, the Mokarari rent due to the
landholder from July 1956 to December 1958, in which certain
amounts were deducted on account of accruing bills due against
Mr. K.K. Singh and Mr. Raghava Prasad Narain Sinha. This
clearly shows that the defendants-appellants were tenants of the
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suit premises and never claimed hostile title and they continued
in possession as tenants as established vide Ext. 1/Z-10 dated
23rd March 1959, Ext. 1/Z-13 dated 11th March 1973, Ext. 1/Z-
14 dated 21st April 1969 and Ext 1/Z-15 dated 29th September
1966. In view of such occupation by the defendants as tenants
even after the order of the House Controller, the said order is not
barred by the principle of res judicata in the aforesaid fact and
circumstances of the case.
65. So far as substantial question of law no. (iv) is
concerned, namely, whether the First Appellate Court has erred
in making out a third case that no forfeiture within the ambit of
Section 111(g)(2) of the T.P. Act ever took place in the year
1955-56 during the proceeding of House Control Case, this
question has already been considered in the preceding
paragraph. The defendants, while claiming hostile title on the
strength of Ext. 10/A in the proceeding of House Control Case
No. 2 of 1955, after passing of the order dated 30.08.1958, the
Club paid due rent to the ancestor of the plaintiffs and accepted
the plaintiffs as landlord on the strength of Ext. 10/A (lease
deed). Subsequently, in the year 1974 during Tanaza proceeding
before the Revenue Authority, the defendants-appellants claimed
hostile title against the plaintiffs by way of adverse possession
Patna High Court SA No. 338 of 2021 dt.05-05-2026
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contrary to their status as lessees. The suit having been filed on
13.05.1983 within 12 years from such denial, forfeiture under
Section 111(g) commenced only in the year 1974. Therefore, the
legal notice dated 25.02.1983 (Ext. 3) and the suit filed
thereafter are within the prescribed period of limitation.
66. From the materials on record, it is evident that the
appellants-defendants failed to pay the fixed rent as stipulated
under the lease deed dated 17.07.1889 as reflected from Letter
No. Misc./6/59 dated 23rd March, 1959 (Ext. 1/Z-10), which
reveals that rent having been paid up to December 1958,
although the defendants-appellants had admitted receipt of rent
only up to 1956. Further, from Exts. 1/Z-13 to 1/Z-15, it would
appear that the defendants- appellants were tenant of the suit
premises. As per the admission of the defendants-appellants,
there is a clear breach of the terms of the lease dated 17.07.1889
(Ext. 10/A). Non-payment of rent is a fundamental breach. Even
if the lease is permanent, consistent default entitles the landlord
to seek eviction on the ground of default in payment of rent.
Admittedly, the defendants-appellants have defaulted in the
payment of rent.
67. Having regard to the narrative and discussion made
herein above, this Court is of the considered opinion that both
Patna High Court SA No. 338 of 2021 dt.05-05-2026
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the learned courts below were justified in decreeing the suit in
part. In the facts and circumstances of the case, the substantial
questions of law formulated are answered against the appellants-
defendants.
68. Accordingly, the second appeal, being devoid of
merit, is dismissed but in the facts and circumstances of this
case, there will be no order as to costs.
69. Pending interlocutory application(s), if any, shall
stand disposed of.
70. Let the lower Court records be transmitted to the
Courts below forthwith.
(Khatim Reza, J)
shyambihari/-
AFR/NAFR AFR
CAV DATE 27.11.2025
Uploading Date 06-05-2026
Transmission Date
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