Ishtiaque Ahmad vs. Abada Khatoon

IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No.186 of 2018

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Ishtiaque Ahmad		<br>	….	Appellant
	Versus
1. Abada Khatoon
2. Rafi Ahmad
3. Asif Ahmad
4. Shamshi Ahmad
5. Shabha Praveen
6. Shaheen Praneen
7. Shabana Ishrat
8. Farooque Nayyer		<br>		Respondents

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Appellant	: Mr. Amar Kumar Sinha, Advocate
	Mr.<br>Niraj Kishore, Advocate
	Ms. Shobha Rani, Advocate
For the Respondents	: Mr.<br>Kaustav Roy, Advocate
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Order No.09 / Dated : 13.05.2024

It is submitted by the learned counsel on behalf of appellant that in the order dated 09.04.2019, there is typographical error in the substantial question of law no.I in which instead of tenant, torment has been typed.

I find substance in the argument on behalf of appellant.

Accordingly, it is corrected and in place of 'torment', let it be read as 'tenant'.

1. The defendant is the appellant, who has preferred this appeal against the judgment of affirmance by which the suit of the plaintiff for eviction, has been decreed by the learned trial Court and affirmed by the learned first appellate Court.

2. Plaintiff filed the suit for eviction of defendant from the house and premises detailed in the Schedule of the plaint and arrears of rent from January, 1996 to December, 1998 under Section 11(1) (c) and (d) Bihar Building (Lease, Rent & Eviction) Act on the ground of default in payment of rent and also for personal necessity.

3. The case of the plaintiff is that the land and house of the suit premise is within Municipal Survey Plot No.2374 record in Sheet No.26 of Ranchi Municipal Survey being holding no.1275, Ward No.VII, present holding no.1863, Ward No.XX situated at Purulia Road, Ranchi which belong to Syed Mumtaz Ali and Syed Neyaz Ahmed.

4. The defendant/appellant was inducted on payment of rent in the suit premises in 1964 on month to month tenancy. The partition suit was filed by Syed Neyaz Ahmed (plaintiff) being Title (Partition) Suit No.54 of 1994 against Syed Mumtaz Ali and others which ended in a compromise decree on 17.02.1995 and the suit premise came in share of the plaintiff- Syed Neyaz Ahmed. The defendant attorned as tenant, but was irregularly making payment of rent from November, 1995. The default in payment of rent lead the present suit.

5. The case of the defendant is that he was a tenant under the landlord Syed Mumtaz Ali since 1964. His brother-in-law Md. Alauddin and Md. Abbas joined him in the family business and a firm namely M/s Super Iron Scrap Syndicate was formed.

6. It has been admitted that the house rent was at the rate of Rs.25/- per month payable to the plaintiffs which was increased to Rs.100/- in the year 1985 at the instance of landlord Syed Mumtaz Ali. The area was also reduced under threat by the landlord Mumtaz Ali. Default in payment of rent, has been denied and the monthly rent is being remitted from October, 1988 onwards to the landlord Syed Mumtaz Ali, who has refused to receive the same. Syed Mumtaz Ali and Syed Niyaz Ahmed are own brothers living in M.S. Plot No.2374 on which several buildings and shops have been constructed. There is no dearth of accommodation to two brothers or their sons and daughters, who are holding land measuring 55 decimals.

7. On the basis of pleadings of the parties, following main issues were framed:-

• (iii*) Is there any relationship of landlord and tenant between the parties to the suit?*
• (iv) Whether the defendant committed default in payment of the monthly rent?
• (v) Whether the plaintiff requires the suit premise reasonably and in good faith?
• (vi) Whether the partial eviction of the defendant would satisfy the requirement of the plaintiff?

8. The learned trial Court decreed the suit and answered all the issues in favour of plaintiffs and the learned first appellate Court has concurred with the findings of the trial Court while dismissing the appeal.

9. This appeal was Admitted to be heard on the following substantial questions of law:-

• I. Whether, the defendant is a tenant regarding ownership of the plaintiff, which can be an issue before coming to a finding of the landlord – tenant relationship?
• II. Whether title is required to be established in a suit for eviction filed under the provision of BBC Act and the findings of the learned Courts below in contravention to this are wholly perverse?

10. It is submitted by the learned counsel on behalf of appellant that it was Mumtaz Ali, who had inducted the plaintiff as tenant and not this plaintiff. No notice was served to the defendant/respondent under Section 106 of the Transfer of Property Act. It is not factually correct that the tenant had attorned and accepted the plaintiff as landlord.

11. It is not in dispute that the defendant was inducted as tenant in the suit premises. It is also not disputed that he was the tenant of Mumtaz Ali. After the compromise decree passed in Title (Partition) Suit No.54 of 1994, Syed Ishtiaque Ahmad was allotted the suit premise in his share and he stepped into the shoes of the Mumtaz Ali who has been admitted. In any case, since it was the joint family property, co-sharer had all right to initiate the eviction proceeding and after the compromise decree, he became landlord of the defendant. Defendant in the circumstance cannot deny landlord-tenant relationship.

12. There is concurrent findings of fact regarding default and personal necessity. In this view of matter, the substantial question of law is answered in favour of plaintiff/respondent.

The appeal is dismissed with cost. Interlocutory Application, if any, is disposed of.

The learned execution Court is directed to dispose of the execution case within six months from the date of order in view guidelines of the Hon'ble Supreme Court Rahul S. Shah Versus Jitendra Kumar Gandhi & Others, (2021) 6 SCC 418.

(Gautam Kumar Choudhary, J.)