SARDAR GURUCHARAN SINGH Vs. PRIYA RANJAN BHAGAT

JUDGEMENT

(1.) THIS Second Appeal is by the defendants in a suit for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act). The plaintiff, the landlord, claimed eviction on the ground of sub -letting under Sec.11(1)(a) of the Act, and on the ground that the tenant had committed wilful default in payment of rent under Sec.11 (1)(a) of the Act. The tenant, the first defendant resisted the suit by denying both the claims. The trial Court overruled the contentions of the defendants and decreed the suit. The appeal filed by the tenant was dismissed by the lower appellate Court. This Second Appeal challenges the concurrent decrees for eviction passed by the Courts below.

(2.) THOUGH various questions of law are indicted as substantial questions of law arising for decision in the memorandum of Second Appeal on hearing the parties, I find that the following two substantial questions of law arise for decision. I may indicate here and I have already noticed the same in the order dated 6.8.2004, that when the Second Appeal came up for hearing under Order XLI, Rule 11 of the Code of Civil Procedure the respondent -plaintiff had appeared and at the instance of both counsel the Second Appeal itself was taken up for final hearing and disposal. Having commenced the hearing on 6.8.2004, I called for the records from the Courts below. Arguments were not completed that day. They were subsequently resumed on receipt of the records from the Court below and the Second Appeal as requested by counsel is being heard and finally disposed of. In that context, I find that the following two substantial questions of law arise for decision :

(3.) THE case of the landlord is that the first defendant, the tenant, occupied the building in the month of June, 2000 and thereafter he brought a lady and her son to reside in the building and this amounts to sub -letting of the building. The tenant pleaded that the lady was his widowed sister and the young -man was her son, his nephew and that there was no sub - letting involved. It must be noted that the landlord had no case in the plaint that the first defendant, the tenant had abandoned the possession of the building or had shifted his residence elsewhere, , leaving his widowed sister and nephew to occupy the building. His case was that the lady and her son were living with the tenant in the plaint -schedule building. The tenant gave clear evidence to the effect that the lady was his widowed sister and the young man was his nephew, and since the family house in which the family members were residing had become over crowded, he had taken the plaint schedule building on rent and was living there with his widowed sister and nephew since they had no other place to go to and there was no question of subletting. The landlord, when examined, was confronted with the question whether the lady residing with the tenant was not his widowed sister and the young man residing in the building along with the tenant was not the nephew of the tenant. The landlord could not deny the suggestion. Thus, the sternest sum total of evidence was that the tenant after taking the building on rent had started residing therein and his widowed sister and her son, his nephew were also residing with him. The Trial Court though it posed the question did not actually decide it in the judgment except recording a conclusion that there was sub -letting. The lower appellate Court proceeded to consider the definition of the family in the Act and came to the conclusion that the widowed sister or the nephew, were not members of the family of the tenant as contained in the definition. The appellate Court also noticed that the trial Court did not properly consider the question. Thus, finding that the definition of a family as contained in the Act did not take in a widowed sister and her son, the appellate Court held that the sister and the nephew of the tenant were not members of the family of the tenant and since they were residing with the tenant, it amounted to sub -letting. It proceeded to speculate that since in the reply -notice or in some of the documents produced the address of the tenant was shown as a hotel premises when a hotel was being run by the family of the tenant, it gave room for doubt whether the tenant was really residing in the building. I have to observe that this was a case which even the landlord did not have in his plaint. Thus, the lower appellate Court found that the tenant, defendant No. 1 had not been able to prove that he inducted into the suit premises defendant No. 2 and his mother on permission and therefore the decree for eviction was liable to be confirmed.