Patna High Court
Jethan KurmiversusSmt. Lalmuni Devi
- Decided
- Disposal
- DISMISSED
- Bench
- KHATIM REZA
Holding
The appellate court held that the appellant failed to establish title or a landlord‑tenant relationship and the suit was not maintainable, leading to dismissal of the appeal.
Summary
The appellant, Jethan Kurmi, claimed title to a house in Danapur on the basis of a family partition that allegedly gave him a share, and sought eviction of the respondent, Lalmuni Devi, who was occupying the house as a tenant and allegedly owed rent arrears. The respondent contended that she purchased the property by a registered sale deed in 1968 and that the appellant was merely a permissive month‑to‑month tenant, invoking the Specific Relief Act to bar the suit. The trial court dismissed the suit for lack of proof of title and landlord‑tenant relationship, a decision affirmed by the Additional District Judge. On appeal, the court examined whether the appellant had produced any partition documents, whether a landlord‑tenant relationship existed, and whether the suit was maintainable given the non‑joinder of parties. Finding no partition deed in the appellant’s name, no evidence that the respondent was his tenant, and noting the sale deed remained unchallenged, the appellate court held the suit untenable. Consequently, the second appeal was dismissed at the admission stage under Order XLI Rule 11 of the CPC.
Issues considered
- Whether the appellant has a valid title over the suit property.
- Whether a landlord‑tenant relationship existed between the parties.
- Whether the suit was maintainable, particularly regarding joinder of necessary parties.
Legislation cited
- Bihar Tenancy Act — s. 103(A)
- Code of Civil Procedure — s. Order XLI Rule 11
- Specific Relief Act
Subjects
- title suit
- eviction
- landlord‑tenant
- partition
- sale deed
- Specific Relief Act
- Bihar Tenancy Act
- non‑joinder
- second appeal
- CPC
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.525 of 2017
======================================================
Jethan Kurmi, son of Late Chalitor Mistry, resident of Village- Hadaspura,
P.S.-Danapur, District- Patna.
... ... Appellant/s
Versus
Smt. Lalmuni Devi, w/o Baidyanath Choudhary, resident of Mahuari Bagicha,
P.S.-Sahpur, at present residing at Village-Hadaspura, P.S.-Danapur, District-
Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. K.M.Joseph, Adv.
Ms. Upasana Vibha Toppo, Adv.
For the Respondent/s :
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
ORAL ORDER
4 22-01-2026 This Second Appeal has been preferred against the
judgment and decree of affirmance dated 03.06.2017 passed in
Title Appeal No. 56 of 2006 by Additional District Judge-II,
Danapur, Patna, whereby the judgment and decree dated
30.03.2006 passed by the learned Munsif, Danapur, in Title
Eviction Suit No. 15 of 1998 has been upheld.
2. This Second Appeal has been filed by the
plaintiff/appellant/appellant against the judgment and decree of
the learned courts below.
3. This Second Appeal arises out of Title Eviction
Appeal No. 15 of 1998 which was filed by the plaintiff/appellant
for declaration of title over the suit property described in
Schedule-II and also for a decree of eviction of the
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defendant/respondent from the suit property as also for arrears
of rent amounting to Rs. 630/-
4. The case of the plaintiff is that one Aklu Kurmi had
five sons, namely, Ganpat, Dhanpat, Kali, Jagdeo and Sampat.
After the death of Aklu Kurmi, his five sons had partitioned
amongst themselves before Cadestral Survey and the Khatiyan
was prepared separately in the name of five sons of Aklu Kurmi.
Further case of the plaintiff/appellant is that two sons of Aklu
Kurmi, namely, Kali and Sampat died issueless and rest three
sons of Aklu Kurmi, namely, Ganpat, Dhanpat and Jagdeo got
the share of Kali and Sampat. It is further pleaded that after the
death of Jagdeo, the property came in possession of Charitar,
who had two sons, namely, Ramashish and Jetha Kurmi and
they had partitioned among themselves and the property, in
question, came in share of the plaintiff/appellant, namely, Jethan
Kurmi (plaintiff). It is further case of the plaintiff that the
defendant took the house in question on rent from the plaintiff at
the monthly rental of Rs. 15/-. The said rent increased gradually
and from January, 1995, it became Rs. 30/- per month. The
defendant paid the rent till November, 1996, and thereafter, she
stopped paying the rent. It is further alleged that during
revisional survey, the defendant in collusion with survey Amlas
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got Khata opened in her name. When it came to the knowledge
of the plaintiff, he filed objection petition before Assistant
Settlement Officer. In that regard, he was informed that when a
proceeding under Section 103(A) of the Bihar Tenancy Act
would be started, he would be informed. It is further pleaded
that the plaintiff is in bonafide personal needs of the suit
premises and defendant has not paid rent from December, 1996,
and he is defaulter. It is further case of the plaintiff that the
defendant got a sale deed from Rasgulwa and Ismile in her
favour and the said vendor had no concern with the said
property hence, the sale deed executed by them in respect of the
suit land in favour of the defendant has no value and the sale
deed is forged and fabricated and without consideration.
5. On summons, the defendant appeared and filed her
written statement. Apart from ornamental objection, the
defendant vehemently pleaded that the suit is barred under the
provision of Specific Relief Act. The plaintiff in the garb of suit
for eviction wants to grab the house of the defendant and wants
to get his title declared over the suit property. Further, the
plaintiff is in permissive possession as month to month tenant
from the defendant. The house standing over Plot No. 574,
Khata No. 124, Area 5 decimals as described in Schedule-II of
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the plaint was owned and possessed by Most. Bibi Nazmun,
Ismile and Bibi Masudan, wife of Wazir Ahmed. The defendant
purchased the said house in the year 1968 through registered
sale deed from them. In the month of January, 1995, the plaintiff
requested the defendant to allow him to live in the suit premises
for which he would pay Rs. 30/- as rent. The defendant being
pardanasin lady, in good faith, allowed the plaintiff and
inducted him as tenant but taking advantage of the old age of the
defendant, the plaintiff became dishonest and wants to grab the
suit land.
6. On the basis of the pleadings of the parties, the
learned Trial Court framed issues for deciding the suit. After
hearing the parties, considering the materials on record and
evidence adduced by the parties, the learned trial court
dismissed the suit on contest on 30.03.2006.
7. Being aggrieved by the judgment and decree of the
Trial Court, the plaintiff preferred Title Appeal No. 56 of 2006
which too, was dismissed.
8. After hearing the parties and considering the
materials on record, the learned Additional District Judge-II,
Danapur, Patna also dismissed the said appeal by judgment and
decree dated 03.06.2017 affirming the judgment and decree of
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the Trial Court. Against the aforesaid judgment and decree of
the learned courts below, the instant Second Appeal has been
filed.
The learned First Appellate Court considering the
pleadings and evidence of the parties framed the points for
consideration which are as follows:-
(i). Whether the plaintiff/appellant has his right and
title over the suit property described in Schedule-I of the plaint?
(ii). Whether there is relationship of landlord and
tenant between the plaintiff and the defendant?
(iii). Whether the suit as framed is maintainable?
9. It appears that learned court of appeal below, which
is the final court of facts, after considering the pleadings of the
parties and the evidence adduced by them, came to a clear
finding that the plaintiff/appellant has not produced any chit of
paper regarding the partition as to how the property, in question,
came in his share. The certified copy of Khatiyan (Ext.-2) is in
the name of Dhanpat Kurmi and the plaintiff/appellant pleaded
that after the death of Aklu Kurmi his five sons had partitioned
among themselves before Survey and during the Survey,
Khatiyan was prepared in their names separately but the
appellant has not produced any Khatiyan in the name of his
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grandfather Jagdeo Kurmi. However, the Khatiyan was prepared
in the name of Dhanpat Kurmi (cousin grandfather of the
plaintiff) but the descendants of Dhanpat Kurmi has not been
made party in the suit. The plaintiff specifically stated in his
evidence that there is no paper of partition and there is no paper
as such through which it can be found out that he got which plot
in partition.
10. On the other hand, the defendant pleaded that the
suit property is purchased property through registered sale deed
dated 17.06.1968 (Ext.-A) hence, the plaintiff failed to establish
his right and title over the suit property described in Schedule-II
of the plaint.
11. So far relationship of landlord and tenant between
the plaintiff and the defendant is concerned, the specific case of
the plaintiff/appellant is that the defendant/respondent got the
suit property mentioned in Schedule-II from the
plaintiff/appellant on rent at the rate of Rs. 15/- per month
which gradually increased to Rs. 30/- per month. It is further
pleaded that the defendant/respondent paid rent till November,
1996 and thereafter, she stopped paying the rent. On the other
hand, the defendant/respondent in her written statement has
pleaded that the plaintiff is in permissive possession as month to
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month tenant from the defendant. The house, in question,
standing over Plot No. 574, Area 5 decimals is her purchased
property (Ext.-A) which she purchased from Most. Bibi
Nazmun, Md. Ismile and Bibi Masudan and came in possession
since the date of purchase i.e. 17.06.1968.
12. The learned First Appellate Court has held that the
witnesses of the plaintiff in their evidence have not clearly
stated that the plaintiff/appellant had let out the
defendant/respondent in the suit premises as a tenant. PW-3,
Ram Swaroop Mahto has stated in his evidence that both the
plaintiff and the defendant reside in the disputed house. PW-4,
Suresh Lal, in his evidence has stated that Jethan Kurmi
(plaintiff) has not shown him any paper which could reveal that
Lalmuni Devi is a tenant. Except Jethan Kurmi(plaintiff), no one
adduced evidence that Lalmuni (defendant) is the tenant. On the
basis of evidence adduced on behalf of the plaintiff, the learned
Appellate Court held that the plaintiff has failed to prove that
the defendant/respondent Lalmuni Devi is his tenant in the
house, in question, and also held that the plaintiff claimed his
right on the basis of partition but the suit property has been
recorded in the Survey Khatiyan (Ext.-2) in the name of
Dhanpat Kurmi and the plaintiff/appellant did not make
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descendants of Dhanpat Kurmi or other descendants of Ghanpat
and Ramvilas, brother of the plaintiff/appellant as party in the
suit, hence, the suit is not maintainable due to non-joinder of the
necessary party in the suit. The suit was also filed for
declaration of title and interest but the relationship of landlord
and tenant has not been proved by the plaintiff/appellant. There
is no question of default in payment of rent.
13. Having considered the aforesaid facts and
circumstances as well as materials on record, it is quite apparent
that the plaintiff has filed suit for declaration of title over the
suit land and also for eviction of the defendant from the suit
land and payment arrears of rent amounting to Rs. 630/-.
14. The suit was filed for eviction of the defendant
from Schedule-II property and the title of the property could not
be decided in full-fledged manner in the eviction suit. Both the
courts have held that the plaintiff prima facie failed to establish
his title over the suit land and also failed to prove the
relationship of landlord and tenant between the plaintiff and the
defendant (Lalmuni Devi).
15. There is no material on record to show that the
sale deed dated 17.06.1968 (Ext.A) was challenged or set aside
by any court of competent jurisdiction. The learned courts
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below found that there was no relationship of landlord and
tenant between the parties and the plaintiff was not entitled to
any arrears of rent.
16. Having regard to the discussions made
hereinabove, this Court does not find any illegality in the
impugned judgments and decree of the learned courts below nor
does it find any substantial question of law in the instant Second
Appeal.
17. Accordingly, this second appeal is dismissed at the
stage of hearing of admission under Order XLI Rule 11 C.P.C..
18. Pending interlocutory applications, if any, shall
stand disposed of.
(Khatim Reza, J)
prabhat/-
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