MD KAMRUDDIN Vs. BRIJNANDAN PRASAD ALAIS MOTI

JUDGEMENT

(1.) his appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 14-3-1985 passed by the Additional Subordinate Judge, Biharshariff in Title Appeal No. 71 of 1983 whereby and whereunder the judgment and decree passed by the Additional Munsif, Biharshariff in Title Suit No. 69 of 1982 has been affirmed. It may be stated here that by the two impugned judgments, there is concurrent findings to the effect that the plaintiff-appellant could not establish the relationship of land-lord and tenant between the plaintiff and defendant No. 1 and hence dismissal of eviction was recorded by the Courts below.

(2.) The facts in this case are complicated but the admitted position may be stated below. Defendant No. 5 Md. Mutsirn was the original owner of the suit property. Defendant No. 1 Brijnandan Prasad @ Moti was inducted as a tenant in the house constructed over the suit land and there was admitted relationship of land-lord and tenant of the suit shop between the defendant No. 5 and defendant No. 1. In the year 1977, the defendant No. 5 executed a deed of mortgage in the form of Baibulbafa dated 8-7-1977 in favour of defendant No. 4 on a consideration of Rs. 8,400.00. On such Baibulbafa deed, it was claimed by the plaintiff that the said deed was farzi deed in the name of defendant No. 4 but actually it was done in favour of the plaintiff and the said deed was also termed by the plaintiff as a mortgage by conditional sale. The term/the time frame mentioned in that deed which has been marked as Ext. 1 in the deed for three years. It was also claimed by the plaintiff that as per terms and conditions of that mortgage by conditional sale, the plaintiff was given possession of the property with the tenant over it and the rent was to be collected by the plaintiff. It was also stated in the plaint that after the deed was executed proper atonement was made regarding the tenancy of defendant No. 1 to the plaintiff and the defendant No. 1 was paying rent to the plaintiff. In the year 1980, the defendant No. 5 had sold the suit property in favour of defendant No. 1 by registered deed of sale dated 16-7-1980 and after purchase the defendant No. 1 wanted to deposit the amount of Rs. 8,400.00 to the plaintiff but the same has been refused. The plaintiff has now come up with a simple suit for eviction against the defendant No. 1 on the basis of his Baibulbafa deed on the ground of defaulter and also for arrears of rent together with the mesne profits. There was also plea of personal necessity from the plaintiffs side. The defendant No. 1 had contested the suit by placing his case that there was no relationship of land lord and tenant between the plaintiff and defendant No. 1 and that the plaintiff was never have any interest with the suit property and that the title of the property had already been transferred by defendant No. 5 to defendant No. 1. Both parties adduced both oral and documentary evidence. Defendant No. 4 in whose name the Baibulbafa deed existed and supported the case of the plaintiff to the effect that she was not a person interested in the suit property but the deed was although in her favour but it actually belonged to the plaintiff as Farzider. During the course of trial, the defendant No. 1 had produced a series of rent receipts by which he wanted to show that till the date of his purchase, he remained as a tenant under the defendant No. 5 by paying rent on receipt of valid discharge receipts and that after his purchase in the year 1980 his tenancy had already been merged with his title. It was stoutly denied that there was any relationship of land-lord and tenant between the plaintiff and defendant No. 1 nor there was any atonement of the tenancy to the plain-tiff or defendant No. 4 after the so called Baibulbafa deed was executed by defendant No. 5. Both the Courts below after consideration of the oral and documentary evidence came to the findings that no relationship of landlord and tenant was established between the plaintiff and defendant No. 1 even after Baibulbafa deed was executed in the year 1977. It was further held that the plaintiff had never become owner of the suit property on the basis of the deed of mortgage on conditional sale even after the period mentioned in the deed was over. It was also disbelieved by the Courts below regarding oral evidence being adduced from the side of the plaintiff regarding the establishment of the relationship of land-lord and tenant between the plaintiff and defendant No. 1 after 1977 and that rent was being paid by defendant No. 1 to the plaintiff. On such findings being arrived at both the Courts below held that as there was no relationship of land-lord and tenant between the plaintiff and defendant No. 1, no relief can be granted in the present eviction suit. But, while deciding that factum the appellate Court had gone to the extent that the plaintiff had not acquired any title over the suit property rather the title remains with defendant No. 1.

(3.) While admitting this appeal vide order dated 26-7-1985 a Bench of this Court formulated the following substantial question of law as required under Section 100 of the Code of Civil Procedure. Whether the Courts below acted illegally in holding the appellant not to be the land-lord of the contesting defendant after rejecting Ext. 1, the deed of mortgage by conditional sale.