ABDUL RAHIM Vs. AZIMUDDIN

JUDGEMENT

(1.) The appeal is by the defendant in on action for his ejectment from premises bearing municipal holding Nos. 30/34 and 31 of ward No. 8 circle No. 6 of mahalla Sabzibagh, Patna. The plaintiff also claimed recovery of Rs. 12,000/- as arrears of rent from the defendant. His case was that the defendant had taken lease of the premises for starting a hotel for a period of five years from the 1st of December 1953 to the 30th of November 1958 by a registered document dated the 2nd of December 1953 on an annual rent of Rs. 2400/- payable in quarterly instalments of Rs. 600/- each, on every 26th February, 31st May, 31st August and 30th November, on explicit condition that in case of default of any two consecutive instalments, the plaintiff would be entitled to re-enter upon the premises. Another condition in the lease was that the premises would be used only for a hotel. The defendant violated both the conditions by keeping in arrears the rent that was payable on the 31st May and 31st August 1956 and by opening a book-stall and a betel shop in the premises in addition to the hotel. The plaintiff claimed interest on the arrears of rent at the rate of one per cent per month.

(2.) The defendant contested the suit and pleaded that the suit was not maintainable and there was no cause of action. His main plea was that the plaintiff was not the owner of the suit premises. The defendant took a permanent settlement of that land by two registered permanent leases on the 12th August 1946 and 1st April 1948 from Tripurari Charan Palit, Advocate, Patna, to whom the land belonged. The two leases were, however, taken in the name of the plaintiff, as the defendant apprehended that if he acquired the property in his name, his five brothers might claim a share in that property. The plaintiff was in fact his friend in whom he had full confidence. He paid Rupees 24,500/- as salami for that land but to keep up the pretence, he paw that money to the plaintiff and caused the salami to be paid through a cheque by him. After taking the lease, he applied for sanction to the Patna Municipality for construction of the houses on the land and spent Rs. 14,500/- in the latter part of 1953 over the construction. With a view to making his position secure, he took a deed of lease on the 2nd December 1953 from the plaintiff but it was a sham document and never intended to be operative. This step was taken to keep his brothers out of any suspicion about the ownership of this property. On these grounds, he pleaded that the plaintiff was not the owner and there was no relationship of landlord and tenant between the parties, and, as such, he (defendant) was not liable for either rent or eviction.

(3.) Seven issues were framed on the pleadings. The first two were about the maintainability of and cause of action for the suit. The third issue was about plaintiff's title. The fourth was about the two registered deeds D/- the 12th August 1946 and the 1st April 1948 by which the property was acquired; whether they were taken by the defendant in the 'benami" name of the plaintiff and if the defendant constructed the houses standing on the suit premises. The fifth issue was, if the deed of lease executed on the 3rd December 1953 was a nominal one, not intended to be operative. There was another issue with reference to Section 6 of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947.