Holding

Section 12 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 is binding on all persons occupying the premises, and its non‑obstante clause makes an eviction order enforceable against any occupier unless that person has an independent title or has been inducted as a tenant with the landlord’s express written permission.

Summary

The appellants, Bibi Zafira Khatoon and her late husband, obtained an eviction decree against respondent No.2 (Mohammed Manzurool Haque) on grounds of bonafide need and rent default. Respondent No.1 (Mohammed Hussain), who was a buyer under a disputed sale agreement, was impleaded as an intervenor and had filed a title suit and a suit for specific performance, both of which were dismissed. When the appellants sought execution of the eviction decree, the executing court refused to enforce it against respondent No.1, holding that Section 12 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 applied only to a tenant within the meaning of s.2(h). The High Court upheld this view. The Supreme Court allowed the appeal, holding that Section 12’s non‑obstante clause makes an eviction order binding on all persons occupying the premises, unless they have an independent title or have been inducted as a tenant with the landlord’s express written permission. Consequently, the execution court erred, and the decree was ordered to be executed against respondent No.1 as well.

Issues considered

Whether Section 12 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 applies to a person who is not a tenant within the meaning of s.2(h) but is occupying the premises.
Whether an execution court can enforce an eviction decree against an intervenor who was not a party to the original eviction suit.
Interpretation of the phrase ‘all persons’ and the non‑obstante clause in Section 12.
Whether the proviso to Section 12 exempts a person with independent title or a tenant inducted with the landlord’s express permission.

Legislation cited

Code of Civil Procedure, 1908s. 151, s. 47

Subjects

evictionrent controlSection 12Bihar Buildings Actlandlord‑tenantexecution of decreenon‑obstante clausetitle suitspecific performance

Judgment

[2009] 14 (ADDL.) S.C.R. 594

A BIBI ZAFIRA KHATOON AND OTHERS
v.
MOHAMMED HUSSAIN AND ANOTHER
(Civil Appeal No. 2098 of 2000)

SEPTEMBER 17, 2009
B
[TARUN CHATIERJEE, G.S. SINGHVI, l.

R. M. LODHA, JJ.) ~·-

Rent Control and Eviction:
c
Bihar Buildings (Lease, Rent and Eviction) Control Act;
1982 - s. 12 - Applicability of- Eviction petition on the ground
of bonafide requirement and default in payment of rent -
Alleged tenant denying tenant-landlord relationship - Other
person getting impleaded as intervener in the petition
0
claiming to be owner of disputed premises put in possession
by the landlord - Intervener also filing title suit and suit for
specific performance of agreement against the landlord in
respect of the suit premises - Suits by intervener dismissed
and eviction suit decreed by trial court - Appellate court
E confirming the eviction decree - Execution petitiOn,
dismissed holding that it was not enforceable against the
intervener as he was not the tenant - On appeal, held:
Executing court committed error by refusing to execute . '·
eviction decree against the intervener - Intervener's title suit
F was dismissed by Courts below - SLP also dismissed - s. 12
is applicable in the instant case - The provision signifies that
Court's order for recovery of possession of tenanted premises
is binding on everyone, whosoever is occupying the premises,
iffespective of his status.
G 9-,
Appellant No. 1 and her husband (since deceased)
filed a suit for eviction on the grounds of bonafide need
and default in payment of rent against respondent No.2.
Respondent No.2 denied tenant-landlord relationship and
H 594
BIBI ZAFIRA KHATOON AND ORS. v. MOHAMMED 595
HUSSAIN AND ANR.

stated that he occupied the premises at the request of the A
plaintiffs to drive away evil spirits from the suit premises;
I and that plaintiffs had entered into agreement with
respondent No.1 for sale of the premises. Respondent
No. 1 got himself impleaded in the eviction suit as
intervener. He also filed title suit and suit for specific B
performance. Trial court dismissed the suits for specific
performance and the title suit and allowed the eviction
suit. Appeal was filed against the order of eviction by
respondent No. 2. Appellate court confirmed the order of
trial court. c
Appellants filed application for execution
Respondent No.1 filed objection to it. Executing Court
dismissed the execution application holding that eviction
decree was passed only against respondent No. 2 and
not against respondent No. 1. High Court dismissed the D
revision petition against the order of executing court,
holding that s.12 of Bihar Building (Lease, Rent and
Eviction) Control Act, 1982 cannot be invoked against a
person who is not a tenant within the meaning of s.2(h)
of the Act; and that respondent No.1 could not be treated E
as a tenant of the suit premises. Hence the present
appeal.

Allowing the appeal, the Court

HELD: 1. The Executing Court committed an error by · F
refusing to execute the decree of eviction against
respondent No.1. The judgment and decree passed by
the trial court in the title suit have become final because
the first appeal and special leave petition filed, by
respondent No.1 have been dismissed by the High Court ;
G
and Supreme Court, respectively. [Paras 9 and 15] [6~1-
F-G; 605-8]

2.1. The view taken by the High Court on the
applicability of Section 12 of Bih'f:-- '3uilding {Lease, Rent H
596 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A and Eviction) Act, 1982; qua respondent No.1 is clearly
flawed and untenable. By enacting Section 12, the
legislature has ensured that an order made by the court
for recovery of possession should be executed in· a
wholesome manner and the landlord should not be
B compelled to enter into further prolonged litigation for the
purpose of getting possession of the suit premises
simply because the tenant may have, without the"''·
knowledge or permission of the landlord, inducted some
other person in the tenanted premises. This is the reason ·
c why Section 12 begins with a non obstante clause and
lays that where the interest of tenant is determined and
an order is made by the court for recovery of possession
of the premises, such order shall be binding on all
persons, who may be in occupation of the premises, and
vacant possession thereof shall be given to the landlord
0
by evicting all such persons therefrom. [Paras 13 and 15]
[603-G-H; 604-A-C; 605-8-C] /

2~2.
The use of the '.·:ords "all persons" in the
substantive part of Section 12 signifies the legislative
E intendment that the order passed by the court for the
recovery of possession of the tenanted premises should
bind everyone who may be occupying the premises
irrespective of his status. Section 12 seeks to ensure
delivery of vacant possession of the premises to the
F landlord by evicting not only the tenant but any other
person who may be occupying the premises. The proviso
to Section 12 protects the person who has independent
title to such premises or the tenant who has been
inducted with the express written permission of the
G landlord himself personally.. [Para 13] [604-C-E]

2.3. If the case in hand is examined in the light of the
plain language of Section 12 and keeping in view the fact
that while deciding the suit for specific performance filed
by respondent No.1, the trial Court recorded an
H
BIBI ZAFIRA KHATOON AND ORS. v. MOHAMMED 597
HUSSAIN AND ANR.

unequivocal finding that husband of' appellant No. 1 had A
not put respondent No.1 in possession of the suit
premises and the said finding has been confirmed by the
High Court, his continued occupation thereof has to be
treated as unauthorized and Section 12 is clearly
attracted in his case. Respondent No.1 cannot take B'
benefit of first part of the proviso to Section 12 because
the suit for specific performance of the agreement for sale
filed by him was dismissed by the trial court and
challenge to the judgment and decree of the trial court
has been negatived by the High Court and Supreme c
Court. Respondent No.1 cannot take advantage of
second part of the proviso to Section 12 because it is
neither his pleaded case nor any evidence was produced
before the trial court to show that he was inducted as a
tenant in the suit premises with express permission of the
landlords, i.e., appellant No.1 and her husband. [Para 14]
D
[604-E-H; 605-A-B]

CIVIL AP PELLATE JURISDICTION : Civil Appeal No.
2098 of 2000.
E
From the Judgment & Order dated 31.7.1998 of the High
Court of Judicature at Patna in Civil Revision No. 395of1998.
'It

Ranjan Mukherjee, S. Bhowmik and S.C. Ghosh for the
Appellants.
- H.L. Agarwal, Syed Ali Ahmad, Syed Tanveer Ahmed,
Mohd. Shahnawaz Hasan, S.S. Bandyopadhyay, Amitab
F

Krishna, Shabana Saifi and Mohan Pandey for the
Respondents.
G
., The Judgment of the Court was delivered by

G.S. SINGHVI, J. 1. This is an appeal for setting aside
order dated 31.7.1998 passed by the learned Single Judge of
Patna High Court whereby he dismi~sed the civil revision
preferred by the appellants against clisrrussal of the application H
598 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A filed by them for execution of the decree of eviction.

2. Appellant No.1, Bibi Zafira Khatoon and her husband
Syed Mohammed Jalaluddin (since deceased) filed suit for
eviction of respondent No.2, Mohammed Manzurool Haque
from a portion of their residential house situated at Motihari on
8
the grounds of personal and bonafide necessity and default in
payment of rent. In the plaint, it was averred that appellant No.1
and her husband were influenced by the claim of respondent
No.2 that he possessed spiritual powers and will bring peace
in their family and, therefore, allowed him to occupy a portion
C of the house at a monthly rent of Rs.190/-. It was further averred
that Syed Mohammed Jalaluddin was going to retire from
service very soon and he was desirous of living in his own
house. The ground of default was elaborated by stating that
respondent No.2 did not pay rent for the period from January,
D 1981 to December, ~983. In the written statement filed by him,
respondent No.2 denied the very existence of the landlord-
tenant relationship between the parties. He claimed that he
9ever occupied the house b~longing to appellant No.1 and her
husband or any portion thereof as a tenant. While admitting that
E he possessed spiritual power, respondent No.2 pleaded that
appellant No.1 and her husband sought his blessings and they
were immensely benefited by his association. According to
respondent No.2, appellant No.1 and her husband felt that their
house was haunted by evil spirits who killed their two sons and
F requested him with folded hands to use his spiritual power to
drive away the evil spirits and, therefore, he agreed to occupy
one room in the year 1978. Respondent No.2 further pleaded
that Syed Mohammed Jalaluddin requested him to find out
some purchaser and after some talks, the sale of house was
G finalized with respondent No.1, Mohammed Hussain.
Thereafter, agreement (mahadanama) dated 9.1.1982 was
executed between appellant No.1, her husband and respondent
No.1 and the latter was given possession of the house.
Respondent No.2 also made a mention of the suit filed by
H respondent No.1 for specific performance of the agreement for
BIBI ZAFIRA KHATOON AND ORS. v. MOHAMMED 599
HUSSAIN AND ANR. [G.S. SINGHVI, J.]
sale. Respondent No.1, who had already filed Title Suit No. 76/ A
1983 (renumbered as 196/1987) for specific performance of
the agreement, got himself impleaded as intervenor defendant
in the eviction suit and filed wrjtten statement supporting the
case set up by respondent No.2.
...j-
B
3. The title suit filed by respondent No.1 and the eviction
suit filed by appellant No.1 and her husband were clubbed
because the subject matter of both the suits was common. On
the pleadings of the parties, the trial Court framed 12 issues,
including the following:
c
3. Whether the alleged Mahadanama dated 9.1.1982
valid,legal and admissible document and can be
basis of any suit?
--I
I
5. Whether plaintiff of T.S. No.76/1983 was put in D
> possession of the suit house by defendant Syed
Md. Jalaluddin?
6. Whether the alleged Mahadanama is enforceable
in law and the plaintiff is entitled to a decree for
specific performance of contract? E
~

4. After detailed analysis of the pleadings of the parties
and the evidence produced by them, the trial Court dismissed
the suit for specific performance of the agreement for sale and
_decreed the one filed for eviction of respondent No.2. The trial F
Court held that the so-called agreement (mahadanama) dated
9.1.1982 is not a legally admissible document and the same
cannot be made basis for passing a decree for specific
_. performance. The trial Court further held that the plaintjff of Title
Suit No. 76/1983 was not put in possession of the suit house
G
'f
by Syed Mohammed Jalaluddin. In the ~viction suit, the trial
Court returned the finding that respondent No.2 was tenant in
the suit premises and the same was required by the landlords
for their personal and bonafide need. Appeal preferred by
respondent No.2 against the decree of eviction was dismissed
H

-.;
600 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A by the 4th Additional District Judge, Motihari, who confirmed
the finding recorded by the trial Court that need of the landlords
was bonafide. The appellate judgment became final because
respondent No.2 did not challenge the same by filing second
appeal.
B
5. After dismissal of the appeal filed by respondent No.2
against the decree of eviction, the appellants filed an
application to~ execution thereof impleading the respondents
~
herein as parties. On notice, respondent No.1 filed objection
petition under Section 47 read with Section 151' of the Civil
c Procedure Code. He pleaded that decree cannot be executed
against him because the. trial Court had ordered eviction of
respondent No.2 only and also because First Appeal No.33/
1989 filed by him against the judgment and decree of the trial
Court in the suit for specific performance was pending before
D the High Court. "
6. By an order dated 28th November, 1997, the Executing
Court allowed the objection petition and dismissed the
execution application by observing that the decree of eviction
E was passed only against respondent No.2 and. not against the
object9r. The Executing Court referred to the evidence produced
by the parties and held that the judgment-debtor left the room {.

and the applicant is residing in the suit house along with his
family. Civil Revision No.395/1998 filed by the appellants was
F dismissed by .the High Court by observing that even though ~

'
Section 12 of the Bihar Building (Lease, Rent and Eviction)
Control Act, 1982 [for short, "the Act"] has overriding effect qua
the provisions of other enactments, the same cannot be invoked
against a person who is not a tenant within the meaning of
Section 2(h) of the Act. The High Court noted that as per
G respondent No.1, he was living in the house in his own right, 'r

. i.e., on the basis. of the agreement for sale and that the appeal
filed by him against dismissal of the title suit was pending and
held that during pendency of the appeal filed against dismissal
of the suit for specific performance of the agreement for sale,
H
BIBI ZAFIRA KHATOON AND ORS. v. MOHAMMED 601
HUSSAIN AND ANR. [G.S. SINGHVI, J.]

respondent No.1 cannot be treated as a tenant of the suit A
" premises.

7. Shri Ranjan Mukherjee, learned counsel for the
appellants pointed out that First Appeal No. 33/1989 filed by
" respondent No.1 against the decree passed by the trial Court 'B
in the title suit was dismissed by the High Court vide its.
judgment dated 18.5.2007 and Special Leave Petition (C) No.
6471/2008 filed by him was dismissed by this Court on 12th
August, 2009. He then argued that in view of the non obstante
clause contained in Section 12 of the Act, the Executing Court
was duty bound to order eviction of respondent No.1 because
c
the title suit filed by him was dismissed and he was never
inducted as a tenant in the suit premises with the express written
permission of the landlords.
-
• ) 8. Shri H.L. Agarwal, learned senior counsel appearing for
respondent No.1 submitted that the trial Court and High Court
rightly refused to order eviction of his client because the decree
D

was passed only against respondent No.2. Learned counsel
further submitted that even though in the suit for specific
performance of agreement for sale filed by respondent No.1, E
the trial Court recorded a finding that he was not put in
possession by Syed Mohammed Jalaluddin (husband of
appellant No.1) and the said finding was confirmed by the High
Court, he cannot be evicted from the suit premises by invoking
Section 12 of the Act because he does not fall within the F
~ definition of the term "tenant".
_,, 9. We have thoughtfully considered the respective
submissions and carefully scrutinized the records. Undisputedly,
the judgment and decree passed by the trial Court in Title-Suit
No. 7611983 have become final because the first appeal and G I

special leave petition filed by respondent No.1 have been
dismissed by the High Court and this Court, respectively. While
dealing with issue No.5, which has been reproduced in the
earlier part of this order, the trial Court took cognizance of the
pleadings and evidence produced by the parties and held: H
602 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A "Mere execution of an agreement for sale does not confer
title and possession without title cannot be treated as legal
possession in the eye of law. The plaintiff has not
established the permission of defendant no.1 to possess
the suit land and, therefore, possession of the plaintiff
B cannot be maintained as permissive possession."

10. In the appeal preferred by respondent No.1, the High
Court framed as many as seven questions including the
following:
-
..

c "Whether the defendants had ever handed over
possession of the suit premises to the plaintiff as part
performance of the contract."

11. The High Court answered the aforementioned question
o in negative by recording the following observations:
"26. The claim of the plaintiff is thaf he was put in
possession of the suit premises by defendant No.1 in part
performance of the agreement for sale. Although some
witnesses of the plaintiff stated that they had seen him in
E possess!on of the suit premises. But only P.W. 3 and P.W.
5 apart from P.W. 7 the plaintiff himself, stated that
defendant No.1 handed over possession of the suit
premises to the plaintiff as part performance of the
agreement for sale. Whereas on the other hand several
witnesses of the defendants stated that the defendants had
throughout been in possession of the suit premises and
the plaintiff never came in possession thereof but out of

G
them D.Ws. 3, 5 and 6, apart from D.W.9 defendant No.1,
specifically stated that the plaintiff was never put in
possession of the suit premises by the defendants as part
-
performance of the agreement for sale.

27. So far the question of onus is concerned, it was
squarely upon the plaintiff to prove that he was put in
possession of the suit premises by the defendants as part
H

-~-
BIBI ZAFIRA KHATOON AND ORS. v. MOHAMMED 603
HUSSAIN AND ANR. [G.S. SINGHVI, J.]

·· f'.ie.rformance of the agreement for sale. But he miserably A
~ failed to support his claim by any valid evidence
whatsoever. Even in the alleged written agreement for sale
produced by the plaintiff as Ext.4 as well as in the ·receipt
of Rs.17 ,000/- executed by defendant No.1 produced by
the plaintiff as Ext. 3 no statement is made that the plaintiff B
was ever put in possession of the suit premises by the
defendants either in part performance of the agreement for

- ..l
sale or otherwise. Furthermore after proper evaluation of
the evidence, both oral and documentary, adduced by both
the parties, the learned trial court has rightly reflected the c
claim of the plaintiff as he miser~bly failed to prove that
he was ever put in possession of the suit premises by the
defendants." -..r··

12. We shall now consider whether Section 12 of the Act
) should have been invoked by the Executing Court for ordering D
eviction of resp_ondent No.1 from the suit premises. That
section reads as under:

"12. Binding nature of the order of the Court on all
persons in occupation of the building - Notwithstanding E
anything contained in any other law, where the interest of
tenant, in any premises is determined for any reason,
>
whatsoever, and any order is made by the Court under this
Act, for the recovery of possession of such premises, the

- order shall be binding on all persons who may be in
occupation of the premises and vacant possession thereof
shall be given to the landlord by evicting all such persons
F

therefrom:

Provided that nothing in this section shall apply to any
G
., person who has an independent title to such a premises
or to tenant who has been inducted with the express written
permission of the landlord himself personally."

13. By enacting the above reproduced provision, the
legislature has ensured that an order made by the court for H

•
604 SUPREME COURT REPORTS [2009] 14 (ADDL.) $.C.R.

A recovery of possession should be executed in a wholesome
manner and the landlord should not be compelled to enter into
further prolonged litigation for the purpose of getting
- -'
,.
possession of the suit premises simply because the tenant may
have, without the knowledge or permission of the landlord,
B inducted some other person· in the tenanted premises. This is
the reason why Section 12 begins with a non obstante clause
and lays that where the-interest of tenant is determined and an -
order is made by the court for_ recovery .of possession of the
premises, such order shall be binding on all persons, who may -~

c be in occupation of the premises, and vacant possession
thereof shall be given to the landlord by evicting all such persons
therefrom. The use of the words "all persons" in the substantive
part of Section 12 signifies the· 1egislative intendment that the
order passed by the court for the recovery of possession of the
•
tenanted premises should bind everyone who may be
D
occupying the premises irrespective. of his _status.· To put it
differently, Section 12 seeks to ensure delh!ery of vacant "
possession of the premises to the landlord by evicting not only ~oq (

the ten~nt but any other person_ who may be occupying -the
premises. The proviso to Section 12 protects the personwho
E hasJndependent title to such premises or the tenant who has
bee-n inducted with the express written permission of the
landlord himself persona!ly.

14. If the case in hand is examined Jn the light of the plain
F language of Section 12 -and k~eping in yiew thefactthat while ~
deciding the suit for specific perform'ancE:ffiied by respon~ent
No.1, the trial Court recorded an unequivocal finding that Syed
Mohammed Jalaluddin had not pl.It respondent No.1 in
poss~ssion of the suit premises and the said finding has_ been
G confim1ed by the High Court, his continued occupation thereof
has to be treated as unauthorized and· Section 12 of the Act is r
clearly attracted in his case~ Respondent No.1 cannot take
benefit of first part of the proviso to Section 12 because_ the
suit for specific performance of the agreement for sale filed by
him was dismissed by the trial Court and challenge tO the
H
BIBI ZAFIRA KHATOON AND ORS. v. MOHAMMED 605
HUSSAIN AND ANR. [GS. SINGHVI, J.]

~ judgment and decree of the trial Court has been negatived by A
the High Court and this Court. Respondent No.1 cannot take
advantage of second part of the proviso to Section 12 because
it is neither his pleaded case nor any evidence was produced
before the trial Court to show that he was inducted as a tenant
in the suit premises with express permission of the landlords, B
i.e., appellant No.1 and her husband.

15. In view of the above discussion, we hold that the
" Executing Court committed an error by refusing to execute the
decree of eviction against respondent No.1 and the view taken
by the High Court on the applicability of Section 12 of the Act C
qua respondent No.1 is clearly flawed a:id untenable. As a
corollary to this conclusion, the appeal is allowed, the impugned
order is set aside and the execution application filed by the
appellants is allowed. Respondent No.1 and his family
~members who are occupying the suit premises are allowed D
three months' time to vacate the same and hand over physical
possession thereof to the appellants herein. This will be subje.ct
to the condition of filing of usual undertaking within four weeks
from today.
E
K.K.T. Appeal allowed.

1