Friday, October 4, 2013

In other Courts: Patna High court: Md. Sabbir vs Saukat Ali & Ors.

Patna High Court - Order
Md. Sabbir vs Saukat Ali & Ors. on 6 September, 2012
 IN THE HIGH COURT OF JUDICATURE AT PATNA

Second Appeal No.524 of 2011

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Md. Sabbir .... .... Appellant/s

Versus

Saukat Ali & Ors..... .... Respondent/s

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Appearance :

For the Appellant/s : Mr. Ambuj Nayan Chaubey
For the Respondent/s : Mr.

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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER

06-09-2012

1. Heard the learned senior counsel Mr. Kamal Nayan Chaubey appearing on behalf of the appellant and the learned senior counsel Mr. Raghib Ahasan appearing on behalf of the respondents under Order 41 Rule 11 of the Code of Civil Procedure.

2. The defendant appellant appellant has filed this second appeal against the judgment and decree dated 4.8.2011 passed by 7th Additional District Judge, Muzaffarpur in Title Eviction Appeal No. 87 of 2008 dismissing the appeal and thereby confirming the judgment and decree dated 28.11.2008 passed by the Special Disposal Munsif, Muzaffarpur in Title Eviction Suit No. 7 of 2002.

3. The plaintiff respondent filed the aforesaid eviction suit for eviction of the defendant from the suit premises alleging that the defendant appellant approached to Late Rahmat Ali to give the Patna High Court SA No.524 of 2011 (8) dt.06-09-2012 2 suit land mentioned in schedule 1 of the plaint on lease for 20 years for starting workshop of grilling and welding. Late Rahmat Ali agreed to the proposal and gave vacant land for 20 years lease on 29.1.1982 which expired on 29.1.2002. The monthly rent was Rs.325/-. Payment was made for the month of November 2001 and from the month of January 2002 the rent is due. After expiry of the lease the plaintiff informed the defendant to vacate the suit premises. Although it was not necessary to give notice under Section 106 of the Transfer of Property Act but notice was served on the defendant. In reply to the notice the defendant stated that he has invested 4 - 5 lacs. in constructing the factory and the plaintiff had agreed to sell the suit property for Rs.50,000/- and Rs.30,000/- has already been paid as earnest money. It was agreed that the sale deed will be executed after expiry of the lease period within three month.

4. The defendant's defence is that B.B.C. Act is not applicable and that the plaintiff has already agreed to sell the suit property for Rs.50,000/-. Rs.30,000/- has already been paid and it was agreed that Rs.20,000/- shall be paid at the time of execution and registration of the sale deed within three months from the date of expiry of the lease and a Mahadanama was executed on 3.7.1982 incorporating the terms and conditions. The defendant Patna High Court SA No.524 of 2011 (8) dt.06-09-2012 3 has already filed a Title Suit No. 254 of 2002 for specific performance of contract. The defendants further alleged that the State of Bihar is the owner of the property and in fact the defendant had mortgage the suit property with Bihar State Financial Corporation and Central Bank. He has also spent Rs.4/5 lacs. in constructing the factory.

5. The trial court on the basis of materials available on record came to the conclusion that the lease was for fixed period of 20 years which expired on 29.1.2002. Although no notice was necessary to serve under Section 106 of the Transfer of Property Act but the notice has also been validly served on the defendant and on this ground decreed the plaintiff respondent's suit. On appeal, the appellate court recorded the same finding.

6. The learned senior counsel Mr. Kamal Nayan Chaubey appearing on behalf of the appellant submitted that in the lease deed itself it was mentioned that defendant may mortgage the property with financial institution for obtaining fund and, therefore, the defendants had already mortgaged the property with the Central Bank of India and with the Bihar State Financial Corporation to raise fund and invested huge amount in constructing the factory and is running the same. Moreover the suit property has been recorded in the municipal record of right in Patna High Court SA No.524 of 2011 (8) dt.06-09-2012 4 the name of State of Bihar therefore, also the plaintiff is not the real owner of the property as such decree for eviction suit could not have been passed by both the courts below. The learned counsel in support of his contention relied upon 2011 AIR SCW 990 and submitted that the plaintiff is claiming wrongly to be the owner of the property who in fact is encroacher of the land of the State of Bihar. The learned counsel further submitted that since huge amount has been spent and the property has been attached in the suit filed by the Central Bank of India therefore, considering the above facts and circumstances it is equitable not to grant eviction decree in favour of the plaintiff respondent.

7. On the other hand, the learned senior counsel appearing on behalf of the respondent submitted that none of the grounds raised by the appellant is substantial question of law.

8. Admittedly, the lease was for fixed period of 20 years. The registered deed of lease dated 29.1.1982 expired on 29.1.2002 and the suit has been filed for eviction in the year 2002 after expiry. Both the courts below have also recorded said fact that lease has already been expired, moreover this fact is not disputed before this Court. The ground raised by the appellant that the plaintiff is not the owner of the suit property because it is recorded in the name of State of Bihar in the municipal record of right is Patna High Court SA No.524 of 2011 (8) dt.06-09-2012 5 concerned, it may be mentioned here that admittedly the appellant has filed the suit for specific performance of contract and according to the defence he has already paid Rs.30,000/- in advance. If he is not the owner of the property then there was no question of filing the suit for specific performance of contract arises. Moreover so far this question as to whether the plaintiff is the real owner of the suit property or not is a foreign question to this suit. So far the submission that the equity is in favour of the appellant is concerned, it may be mentioned here that in the case of Hero Vinoth (Minor) vs. Seshammal (2006) 5 SCC 545 the Apex Court has held that it has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before the second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent finding of facts will not be disturbed by the High Court in exercise of power under this Section.

9. In the present case, the question raised by the appellant relates to the title of the plaintiff when he himself admitted that he Patna High Court SA No.524 of 2011 (8) dt.06-09-2012 6 came in possession of the property on the basis of lease executed between the parties and also he admitted that he has already filed the suit for specific performance of contract, in my opinion, the question raised by the appellant is neither a substantial question of law nor it is required to be decided in this second appeal. So far the expiry of fixed period is concerned it is admitted fact. Moreover both the courts below have found concurrently. There is nothing on record to show that decree has been passed in B.B.C. Act.

10. So for the decision relied by the appellant i.e. 2011 AIR SCW 990 Jagpal Singh and others vs. State of Punjab and others is concerned, it appears that the case relates to the removal of the encroachment made on the land of the State. Therefore, again this question whether there is encroachment or not or whether the plaintiff is the real owner or encroacher of the land of State of Bihar does not arise for consideration in this case. Accordingly, in my opinion, no substantial question of law involved in this second appeal. Thus, this second appeal is dismissed at the admission stage itself.

(Mungeshwar Sahoo, J)

S.S./-

http://www.indiankanoon.org/doc/38773405/

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