So far as the contention on behalf of the petitioner
regarding the need of signature of the lessor on the deed of
kirayanama for creation of a valid tenancy is concerned, the law has
been settled by the Apex Court in the case of Rajendra Pratap Singh
Vs. Rameshwar Prasad, 1998 (7) SCC 602 that merely because the
document shows only the signature of one of the parties, it is not
enough to conclude that the non-signing party has not joined in the
execution of the instrument.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.1861 of 2009
Sudhir Kumar Vs Sri Uma Shankar Pd. Gupta.
CORAM: MR. JUSTICE V. NATH
Date: 20-07-2017
Citation: AIR 2017(NOC) 926 Pat
Heard Mr. S.S. Dwivedi, learned senior counsel
appearing on behalf of the petitioners and also learned counsel for the
opposite parties.
This revision application has been filed under Section 14
(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act,
1982 (hereinafter referred to as the ‘B.B.C. Act’) against the judgment
and order of eviction dated 14.09.2009 passed in Eviction Suit No. 14
of 2001.
The plaintiffs filed the aforesaid eviction suit seeking
eviction of the defendants from the suit premises described in the
plaint on the ground of expiry of the period of lease and also on the
ground of personal necessity of the suit premises. It is the case of the
plaintiffs that the brother of the defendant no. 1 who was earlier the
tenant of the plaintiffs over the suit premises surrendered the tenancy
to the plaintiff no. 1 but requested the plaintiff no. 1 to allow his
brother (defendant no. 1) to run his medicine shop as tenant in the suit
premises. It has been asserted that though the plaintiffs needed the suit
premises for personal necessity for establishing the son of plaintiff no.
1 in business but in view of the agreement by the defendant no. 1 to
vacate the suit premises within 11 months, the plaintiffs inducted the
defendant no. 1 as tenant in the suit premises for a fixed period of 11
months commencing from 11.08.2000 and expiring on 10.07.2001 on
monthly rental of Rs. 800/- per month. The plaintiffs have further
asserted that the defendant no. 1 executed an agreement on
11.08.2000 recording the agreed terms of the tenancy. It is also the
case of the plaintiffs that after the expiry of the period of tenancy on
10.07.2001 the plaintiffs however accepted the request of the
defendant no. 1 to allow him four months more time to vacate the suit
premises and accordingly the period of tenancy was extended by four
months in recognition of which fact the defendant no. 1 voluntarily
executed an agreement dated 01.08.2001 and handed over the same to
the plaintiffs. The plaintiffs’ case is that the plaintiffs require the suit
premises for personal necessity for the son of plaintiff no. 1 to start
his business of Kirana shop in the suit premises but the defendants did
not vacate the suit premises even after the expiry of fixed period of
tenancy. It has also been averred in the plaint that the partial eviction
of the defendants from the suit premises would not satisfy the need of
the plaintiffs as the suit premises has only 7 feet frontage on the road
and the two shops cannot run in the same. The fact has also been
introduced by the amendment in the plaint that the another shop of the
plaintiffs was vacated by the tenant and has been occupied by the
plaintiff no. 2 as per the agreement between the plaintiffs, for his own
business purposes and the requirement of the plaintiff no. 1 for the
suit premises as pleaded is still subsisting.
The defendants filed their written statement contesting
the assertion and the relief prayed by the plaintiffs. It has been the
case of the defendants that the defendant no. 1 is in occupation of the
suit premises not as a fixed term tenancy but as month to month tenant
and has also filed T.S. No. 78 of 2001 questioning the legal validity of
the deed of agreement/kirayanama dated 01.08.2001 as fraudulent and
not enforceable in law. The defendants have further denied the
personal necessity as pleaded by the plaintiffs and have asserted that
the son of the plaintiff no. 1 is not unemployed and even otherwise
also there is sufficient space in the southern side of the suit premises
for starting the business by constructing shops thereupon.
The trial court has returned the findings on the issues
against the defendants holding that the defendants is a fixed term
tenant in the suit premises and the plaintiffs have succeeded in
establishing the personal necessity of the suit premises for
establishing the son of plaintiff no. 1 in business. Accordingly, by the
impugned judgment and order, the defendants have been directed to
hand over the vacant possession of the suit premises to the plaintiffs.
While assailing the impugned judgment and order, Mr.
Dwivedi, learned senior counsel for the petitioners, firstly has
submitted that the learned court below has committed illegality in
upholding the fixed term tenancy of the tenant defendants over the
suit premises ignoring the fact that the alleged Kirayanama/agreement
was not admissible in evidence for want of registration. Elaborating
the submission, it has been argued that in view of the provisions of the
Registration Act and the Transfer of Properties Act, the
agreement/Kirayanama for the purpose of creating tenancy is required
to be registered and is also required to be executed by both the lessor
and the lessee whereas in the present case, the alleged Kirayanama
(Ext. 1 and 1/A & (Ext. 2 and 2/A) have admittedly not been executed
by the plaintiffs. It has also been submitted that the entire facts and
evidence on record unmistakably indicate lack of bonafide on the part
of the plaintiffs as the personal necessity if any had vanished after
repeated grant of tenancy and its extension. It has also been argued
that the learned court below has not considered the evidence
objectively and has performed a formality in considering the evidence
while determining the issue nos. 6 and 8. It has also been submitted
that the learned court below has committed error in not considering
the mandatory issue of partial eviction.
Learned counsel appearing on behalf of the plaintiffopposite
parties, however, has refuted the contention raised on behalf
of the petitioners and has submitted that the lease for a period less
than 11 months is not required to be registered. It has also been
pointed out that the facts admitted by the defendants in the written
statement itself demonstrate that the defendant no. 1 was inducted as
tenant for 11 months in the month of August, 2000 and the said fact is
fully corroborated by the Kirayanama executed by the defendants on
11.08.2000. It has been further submitted that though the defendants
have accepted the execution of another Kirayanama dated 01.08.2001
extending the period of tenancy by four months but his attempt to
avoid the same on the ground of fraud by filing T.S. No. 78 of 2001
has proved futile when the appellate court set aside the judgment and
decree passed in T.S. No. 78 of 2001 holding that the said deed of
Kirayanama is not fraudulent and fabricated document. It has also
been contended that no signature of the lessor is required on the
lease/kirayanama when it has been admittedly executed by lessee and
absence of the signature by lessor will not invalidate the
lease/kirayanama for the said reason. It has been next argued that the
learned court below has elaborately considered the evidence on record
before recording the finding of fact of personal necessity as pleaded
by the plaintiffs and such a finding cannot be interfered in the
revisional jurisdiction envisaged in the B.B.C. Act. It has also been
contended that in view of the tenancy being a fixed term tenancy on
which ground the eviction of the defendant has been sought the
requirement for considering the issue of partial eviction as argued on
behalf of the petitioner has got no substance and even otherwise also
the defendant has also not agreed to such partial eviction from the suit
premises. It has been lastly submitted that the impugned judgment and
order do not deserve to be interdicted in the revisional jurisdiction and
the revision application is fit to be dismissed.
After considering the rival submissions on behalf of the
parties as well as the materials on record including the impugned
judgment, it is manifest that the fact of tenancy in the suit premises
has been admitted by the defendant. In his deposition as D.W.-42, the
defendant no. 1 in paragraph-12 has admitted that the tenancy was
created by the plaintiff no. 1 for the suit premises from August, 2000
for 11 months for which kirayanama was also written. The defendant
has also admitted in his deposition that he had put his signature and
LTI on stamp paper on 01.08.2001 at the instance of the plaintiff no. 1
for the purpose of renewal of the tenancy for further 4 months. The
fact, therefore, stands admitted that the tenancy of the defendant over
the suit premises was initially created for a fixed term of 11 months
which according to the plaintiffs was extended for further 4 months.
In this view of the matter, the case of the defendant of being month to
month tenant is clearly belied.
During the course of submission, the further fact has
emerged that the Title Appeal No. 266 of 2007 filed by the plaintiffs
against the judgment and decree passed in T.S. No. 78 of 2001 (filed
by the defendant challenging the legal validity of the Kirayanama
dated 01.08.2001) was allowed and the S.A. No. 404 of 2013 filed by
the petitioners has also been dismissed by this Court. The conclusion,
therefore, is inevitable that subsequent lease dated 01.08.2001
extending the period of lease for four months has to be accepted as
legal and valid document and there is now no legal impediment in
taking the view that the petitioner has been in occupation of the suit
premises on the basis of fixed term tenancy the period of which has
expired.
So far as the contention on behalf of the petitioner
regarding the need of signature of the lessor on the deed of
kirayanama for creation of a valid tenancy is concerned, the law has
been settled by the Apex Court in the case of Rajendra Pratap Singh
Vs. Rameshwar Prasad, 1998 (7) SCC 602 that merely because the
document shows only the signature of one of the parties, it is not
enough to conclude that the non-signing party has not joined in the
execution of the instrument. In the facts of the present case also, both
the deeds of kirayanama i.e. 11.08.2000 and 01.08.2001 bear the
signature of the defendant and the defendant accepted the execution of
the first kirayanama i.e. 11.08.2000 and after the dismissal of the T.S.
No. 78 of 2001 the legal validity of the subsequent kirayanama dated
01.08.2001 also stands established. As such, this Court finds that the
contention on behalf of the petitioners pertaining to absence of the
signature of the plaintiffs over the deed of Kirayanama as reason to
avoid the terms therein has got no substance.
It has been also submitted on behalf of the petitioners that
the deeds of Kirayanama would not be admissible in evidence for
want of registration. In view of the dictum of the Apex Court in the
case of Satish Kumar Vs. Zarif Ahmed, (1997) 3 SCC 679 that a
lease for 11 months though reduced in writing and possession
delivered to the tenant thereunder is not compulsorily registrable and
such document would be admissible in evidence, this Court again
finds no substance in the said submission of the petitioners.
The learned court below has elaborately considered the
evidence on record before coming to the conclusion that the plaintiffs
have succeeded in establishing the necessity of the suit premises for
establishing the son of plaintiff no. 1 in business. It is not the case on
behalf of the petitioners that the findings by the learned court below
suffer from non-consideration of the evidence or are dehors the settled
principles of law. This Court, therefore, is not persuaded to embark
upon reappreciation of evidence for the purpose of reaching to a
difference conclusion in view of the decision of the Constitution
Bench in the case of Hindustan Petroleum Corporation Ltd. Vs.
Dilbahar Singh, A.I.R. 2014 SC. 3708 laying down the limits of the
revisional jurisdiction of the High Court in Rent Control cases.
As the suit for eviction has been filed on composite
ground of expiry of lease and personal necessity and both the issues
have been decided against the tenant-defendant-petitioners, this Court
upholds the contention on behalf of the plaintiff-opposite parties that
the impugned judgment and order cannot be vitiated for want of
consideration of the issue of partial eviction.
In result, this Court does not find merit in this revision
application, which is, accordingly, dismissed. In the facts and
circumstances of the case, there shall, however, be no order as to
costs.
Print Page
regarding the need of signature of the lessor on the deed of
kirayanama for creation of a valid tenancy is concerned, the law has
been settled by the Apex Court in the case of Rajendra Pratap Singh
Vs. Rameshwar Prasad, 1998 (7) SCC 602 that merely because the
document shows only the signature of one of the parties, it is not
enough to conclude that the non-signing party has not joined in the
execution of the instrument.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.1861 of 2009
Sudhir Kumar Vs Sri Uma Shankar Pd. Gupta.
CORAM: MR. JUSTICE V. NATH
Date: 20-07-2017
Citation: AIR 2017(NOC) 926 Pat
Heard Mr. S.S. Dwivedi, learned senior counsel
appearing on behalf of the petitioners and also learned counsel for the
opposite parties.
This revision application has been filed under Section 14
(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act,
1982 (hereinafter referred to as the ‘B.B.C. Act’) against the judgment
and order of eviction dated 14.09.2009 passed in Eviction Suit No. 14
of 2001.
The plaintiffs filed the aforesaid eviction suit seeking
eviction of the defendants from the suit premises described in the
plaint on the ground of expiry of the period of lease and also on the
ground of personal necessity of the suit premises. It is the case of the
plaintiffs that the brother of the defendant no. 1 who was earlier the
tenant of the plaintiffs over the suit premises surrendered the tenancy
to the plaintiff no. 1 but requested the plaintiff no. 1 to allow his
brother (defendant no. 1) to run his medicine shop as tenant in the suit
premises. It has been asserted that though the plaintiffs needed the suit
premises for personal necessity for establishing the son of plaintiff no.
1 in business but in view of the agreement by the defendant no. 1 to
vacate the suit premises within 11 months, the plaintiffs inducted the
defendant no. 1 as tenant in the suit premises for a fixed period of 11
months commencing from 11.08.2000 and expiring on 10.07.2001 on
monthly rental of Rs. 800/- per month. The plaintiffs have further
asserted that the defendant no. 1 executed an agreement on
11.08.2000 recording the agreed terms of the tenancy. It is also the
case of the plaintiffs that after the expiry of the period of tenancy on
10.07.2001 the plaintiffs however accepted the request of the
defendant no. 1 to allow him four months more time to vacate the suit
premises and accordingly the period of tenancy was extended by four
months in recognition of which fact the defendant no. 1 voluntarily
executed an agreement dated 01.08.2001 and handed over the same to
the plaintiffs. The plaintiffs’ case is that the plaintiffs require the suit
premises for personal necessity for the son of plaintiff no. 1 to start
his business of Kirana shop in the suit premises but the defendants did
not vacate the suit premises even after the expiry of fixed period of
tenancy. It has also been averred in the plaint that the partial eviction
of the defendants from the suit premises would not satisfy the need of
the plaintiffs as the suit premises has only 7 feet frontage on the road
and the two shops cannot run in the same. The fact has also been
introduced by the amendment in the plaint that the another shop of the
plaintiffs was vacated by the tenant and has been occupied by the
plaintiff no. 2 as per the agreement between the plaintiffs, for his own
business purposes and the requirement of the plaintiff no. 1 for the
suit premises as pleaded is still subsisting.
The defendants filed their written statement contesting
the assertion and the relief prayed by the plaintiffs. It has been the
case of the defendants that the defendant no. 1 is in occupation of the
suit premises not as a fixed term tenancy but as month to month tenant
and has also filed T.S. No. 78 of 2001 questioning the legal validity of
the deed of agreement/kirayanama dated 01.08.2001 as fraudulent and
not enforceable in law. The defendants have further denied the
personal necessity as pleaded by the plaintiffs and have asserted that
the son of the plaintiff no. 1 is not unemployed and even otherwise
also there is sufficient space in the southern side of the suit premises
for starting the business by constructing shops thereupon.
The trial court has returned the findings on the issues
against the defendants holding that the defendants is a fixed term
tenant in the suit premises and the plaintiffs have succeeded in
establishing the personal necessity of the suit premises for
establishing the son of plaintiff no. 1 in business. Accordingly, by the
impugned judgment and order, the defendants have been directed to
hand over the vacant possession of the suit premises to the plaintiffs.
While assailing the impugned judgment and order, Mr.
Dwivedi, learned senior counsel for the petitioners, firstly has
submitted that the learned court below has committed illegality in
upholding the fixed term tenancy of the tenant defendants over the
suit premises ignoring the fact that the alleged Kirayanama/agreement
was not admissible in evidence for want of registration. Elaborating
the submission, it has been argued that in view of the provisions of the
Registration Act and the Transfer of Properties Act, the
agreement/Kirayanama for the purpose of creating tenancy is required
to be registered and is also required to be executed by both the lessor
and the lessee whereas in the present case, the alleged Kirayanama
(Ext. 1 and 1/A & (Ext. 2 and 2/A) have admittedly not been executed
by the plaintiffs. It has also been submitted that the entire facts and
evidence on record unmistakably indicate lack of bonafide on the part
of the plaintiffs as the personal necessity if any had vanished after
repeated grant of tenancy and its extension. It has also been argued
that the learned court below has not considered the evidence
objectively and has performed a formality in considering the evidence
while determining the issue nos. 6 and 8. It has also been submitted
that the learned court below has committed error in not considering
the mandatory issue of partial eviction.
Learned counsel appearing on behalf of the plaintiffopposite
parties, however, has refuted the contention raised on behalf
of the petitioners and has submitted that the lease for a period less
than 11 months is not required to be registered. It has also been
pointed out that the facts admitted by the defendants in the written
statement itself demonstrate that the defendant no. 1 was inducted as
tenant for 11 months in the month of August, 2000 and the said fact is
fully corroborated by the Kirayanama executed by the defendants on
11.08.2000. It has been further submitted that though the defendants
have accepted the execution of another Kirayanama dated 01.08.2001
extending the period of tenancy by four months but his attempt to
avoid the same on the ground of fraud by filing T.S. No. 78 of 2001
has proved futile when the appellate court set aside the judgment and
decree passed in T.S. No. 78 of 2001 holding that the said deed of
Kirayanama is not fraudulent and fabricated document. It has also
been contended that no signature of the lessor is required on the
lease/kirayanama when it has been admittedly executed by lessee and
absence of the signature by lessor will not invalidate the
lease/kirayanama for the said reason. It has been next argued that the
learned court below has elaborately considered the evidence on record
before recording the finding of fact of personal necessity as pleaded
by the plaintiffs and such a finding cannot be interfered in the
revisional jurisdiction envisaged in the B.B.C. Act. It has also been
contended that in view of the tenancy being a fixed term tenancy on
which ground the eviction of the defendant has been sought the
requirement for considering the issue of partial eviction as argued on
behalf of the petitioner has got no substance and even otherwise also
the defendant has also not agreed to such partial eviction from the suit
premises. It has been lastly submitted that the impugned judgment and
order do not deserve to be interdicted in the revisional jurisdiction and
the revision application is fit to be dismissed.
After considering the rival submissions on behalf of the
parties as well as the materials on record including the impugned
judgment, it is manifest that the fact of tenancy in the suit premises
has been admitted by the defendant. In his deposition as D.W.-42, the
defendant no. 1 in paragraph-12 has admitted that the tenancy was
created by the plaintiff no. 1 for the suit premises from August, 2000
for 11 months for which kirayanama was also written. The defendant
has also admitted in his deposition that he had put his signature and
LTI on stamp paper on 01.08.2001 at the instance of the plaintiff no. 1
for the purpose of renewal of the tenancy for further 4 months. The
fact, therefore, stands admitted that the tenancy of the defendant over
the suit premises was initially created for a fixed term of 11 months
which according to the plaintiffs was extended for further 4 months.
In this view of the matter, the case of the defendant of being month to
month tenant is clearly belied.
During the course of submission, the further fact has
emerged that the Title Appeal No. 266 of 2007 filed by the plaintiffs
against the judgment and decree passed in T.S. No. 78 of 2001 (filed
by the defendant challenging the legal validity of the Kirayanama
dated 01.08.2001) was allowed and the S.A. No. 404 of 2013 filed by
the petitioners has also been dismissed by this Court. The conclusion,
therefore, is inevitable that subsequent lease dated 01.08.2001
extending the period of lease for four months has to be accepted as
legal and valid document and there is now no legal impediment in
taking the view that the petitioner has been in occupation of the suit
premises on the basis of fixed term tenancy the period of which has
expired.
So far as the contention on behalf of the petitioner
regarding the need of signature of the lessor on the deed of
kirayanama for creation of a valid tenancy is concerned, the law has
been settled by the Apex Court in the case of Rajendra Pratap Singh
Vs. Rameshwar Prasad, 1998 (7) SCC 602 that merely because the
document shows only the signature of one of the parties, it is not
enough to conclude that the non-signing party has not joined in the
execution of the instrument. In the facts of the present case also, both
the deeds of kirayanama i.e. 11.08.2000 and 01.08.2001 bear the
signature of the defendant and the defendant accepted the execution of
the first kirayanama i.e. 11.08.2000 and after the dismissal of the T.S.
No. 78 of 2001 the legal validity of the subsequent kirayanama dated
01.08.2001 also stands established. As such, this Court finds that the
contention on behalf of the petitioners pertaining to absence of the
signature of the plaintiffs over the deed of Kirayanama as reason to
avoid the terms therein has got no substance.
It has been also submitted on behalf of the petitioners that
the deeds of Kirayanama would not be admissible in evidence for
want of registration. In view of the dictum of the Apex Court in the
case of Satish Kumar Vs. Zarif Ahmed, (1997) 3 SCC 679 that a
lease for 11 months though reduced in writing and possession
delivered to the tenant thereunder is not compulsorily registrable and
such document would be admissible in evidence, this Court again
finds no substance in the said submission of the petitioners.
The learned court below has elaborately considered the
evidence on record before coming to the conclusion that the plaintiffs
have succeeded in establishing the necessity of the suit premises for
establishing the son of plaintiff no. 1 in business. It is not the case on
behalf of the petitioners that the findings by the learned court below
suffer from non-consideration of the evidence or are dehors the settled
principles of law. This Court, therefore, is not persuaded to embark
upon reappreciation of evidence for the purpose of reaching to a
difference conclusion in view of the decision of the Constitution
Bench in the case of Hindustan Petroleum Corporation Ltd. Vs.
Dilbahar Singh, A.I.R. 2014 SC. 3708 laying down the limits of the
revisional jurisdiction of the High Court in Rent Control cases.
As the suit for eviction has been filed on composite
ground of expiry of lease and personal necessity and both the issues
have been decided against the tenant-defendant-petitioners, this Court
upholds the contention on behalf of the plaintiff-opposite parties that
the impugned judgment and order cannot be vitiated for want of
consideration of the issue of partial eviction.
In result, this Court does not find merit in this revision
application, which is, accordingly, dismissed. In the facts and
circumstances of the case, there shall, however, be no order as to
costs.
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