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Mohanlal Modi and anr. Vs. Jadunath Mohapatra and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 1006 of 1980
Judge
Reported inAIR1985Ori236; 58(1984)CLT189
ActsOrissa House Rent Control Act, 1958 - Sections 2(4) and 7; Constitution of India - Article 226
AppellantMohanlal Modi and anr.
RespondentJadunath Mohapatra and ors.
Respondent AdvocateM. Jain, ;S. Misra-1, ;K. Nayak-2, ;G.P. Mohapatra, ;S.K. Nayak-1 and ;R. Saha, Advs.
DispositionApplication dismissed
Cases ReferredH. Mohammad Sikandar v. Badrunissa Bibi
Excerpt:
.....was done among the co-sharers for better management of the estate. he relies on the documents exhibited on behalf of his clients as well as the admission of p. the averment in para 11 of the written statement does not suggest that there has been a partition by metes and bounds where one jadunath and sitanath or his son had been exclusively allotted the disputed plot the said averment may at best show that sitanath and after him, his son prasanna was dealing with the disputed plot as a matter of convenience in accordance with an arrangement made in the family. badrunissa bibi has laid down that section 7(4) of the act clearly provides that even if the occupation is required for any member of the family of the owner, it will be a requirement of the house in good faith......vacate the house by the chief judicial magistrate, balasore, as the appellate authority under the house rent control act.2. the opposite parties filed h.r.c. case no. 2 of 1977 in the court of the house rent controller, balasore, against the present petitioners praying for their eviction. it was alleged in the petition under section 7 of the act that the disputed house belonged to the father of the present o.p. no. 1 and he inherited the same from his father as his sole heir. it was further alleged that the present o.p. no. 1 inducted the present petitioner no. 1 as a tenant on a monthly rent of rs. 20/- which was subsequently enhanced to rs. 30/- since jan. 1967. the present opposite parties also alleged that the house rent for the period from oct. 1973 till jan. 1974 has been.....
Judgment:

Misra, J.

1. The petitioners are tenants in respect of a shop house situated within the Municipal area of Balasore town who have been directed to vacate the house by the Chief Judicial Magistrate, Balasore, as the appellate authority under the House Rent Control Act.

2. The Opposite Parties filed H.R.C. Case No. 2 of 1977 in the Court of the House Rent Controller, Balasore, against the present petitioners praying for their eviction. It was alleged in the petition under Section 7 of the Act that the disputed house belonged to the father of the present O.P. No. 1 and he inherited the same from his father as his sole heir. It was further alleged that the present O.P. No. 1 inducted the present petitioner No. 1 as a tenant on a monthly rent of Rs. 20/- which was subsequently enhanced to Rs. 30/- since Jan. 1967. The present Opposite Parties also alleged that the house rent for the period from Oct. 1973 till Jan. 1974 has been outstanding as arrears and, therefore, the tenants are wilful defaulters in the matter of payment of monthly rent. Eviction was sought also on the ground of bona fide requirement by the landlord himself alleging that his second son requires the disputed house for running a Manufacturing Unit therein.

The petitioners in their written statement denied their relationship with the present Opposite Parties and alleged that it was one Sitanath Mohapatra who had let out the house to the present petitioner No. 1. It was further stated in the written statement that the present Opposite Party No, 1 is a co-sharer of the said Sitanath Mohapatra and by an amicable arrangement the disputed house was allotted to Sitanath Mohapatra who had inducted the tenants therein. In substance it was alleged that there being no relationship of landlord and tenant between the parties, the proceeding under the House Rent Control Act was not maintainable. According to the present petitioners they have been paying rent to Sitanath Mohapatra and after him to his son Prasanna Kumar Mohapatra and they are not defaulters far less wilful defaulters in the matter of payment of rent. The allegation that the house is necessary for personal requirement of the petitioners before the House Rent Controller was denied as a false pretence.

3. The learned House Rent Controller after receiving all the evidence that was tendered before him held that Sitanath Mohapatra was the person who had inducted the present petitioners as tenants in respect of the disputed house and therefore he is the real landlord thereof. The learned House Rent Controller also found that the present petitioners had been paying rent to Sitanath Mohapatra and after his death, to his son Prasanna Kumar Mohapatra. His further finding was that the petitioners were not defaulters in paying rent of the house and the claim of the house on the ground of personal necessity was not bona fide. He, therefore, dismissed the application for eviction.

4. The present Opposite Parties carried up the matter in H.R.C. Appeal No. 5/79 before the Chief Judicial Magistrate, Balasore who is the appellate authority under the H.R.C. Act. The learned appellate authority after hearing the parties reversed the findings recorded by the House Rent Controller and held that it was the present O.P. No. 1 who was the landlord of the present petitioners in respect of the disputed house and not Sitanath Mohapatra or his son Prasanna Kumar Mohapatra. The learned appellate Court did not believe that the house rent has been paid to Prasanna Kumar Mohapatra and held that the rent receipts proved in the case in support of the plea of the appellants have been fabricated for the purpose of this case.

Having held that Sitanath Mohapatra and his son Prasanna Kumar Mohapatra are not the landlords in respect of the house, the learned appellate Court came to the conclusion that even if the rent had been paid to them that would not be a valid discharge of the liability of the tenants. Accordingly, the present petitioners are held to be the wilful defaulters in the matter of payment of rent. The finding of the House Rent Controller to the effect that the house is not required bona fide for the personal use of the landlord was also reversed by the appellate authority on the basis of the evidence of P.W. 2 and Ex. 1. The appeal was, therefore, allowed and the present petitioners were directed to vacate the premises within one month from the date of the judgment failing which their eviction would be done through the process of law. The present petitioners have filed this writ application praying to quash the appellate judgment annexed to the writ application as Annexure-2.

5. In the application under Section 7 of the House Rent Control Act, the present Opposite Parties claimed to be the owner of the shop house in question and it was further alleged that the present petitioner No. 1 was inducted as a tenant by the applicant. The present petitioners in their written statement alleged that the father of the applicant Manibhadra Mohapatra was the karta of the joint family and he had purchased the disputed house along with various other properties out of the joint family funds though the sale deeds stood in his name individually. It was further alleged that there was a registered deed of partition dated 31-3-73 in which the properties of the family were separately allotted to the different co-sharers, but the suit house was not the subject matter of the partition therein.

In para 11 of the written statement it has been further stated that by an amicable arrangement amongst the co-sharers the suit house was allotted to Sitanath Mohapatra who inducted the present petitioners as monthly tenants therein. The present Opposite Party No. 1 was similarly allotted other houses from which he has been realising rent from the tenants. It has been also stated therein that the above arrangement was done among the co-sharers for better management of the estate. It has been urged by Mr. Misra, the learned counsel appearing for the petitioners, that Sitanath Mohapatra and after him his son are the real landlords who in fact inducted the present petitioners as tenants. According to him the Opposite Party No. 1 is not the landlord in respect of the disputed house within the meaning of the definition of the House Rent Control Act. He relies on the documents exhibited on behalf of his clients as well as the admission of P.W. 2 to the effect that from 1972 Prasanna Kumar Mohaptra has been realising rent from them in respect of the suit premises.

6. The House Rent Controller exercising jurisdiction under Section 7 of the Act could not decide the question of title which can only be done by the civil Court, but it has jurisdiction to find out if the petitioner is a landlord within the definition given in the Act. The expression 'Landlord' as defined under Section 2(4) of the Act runs as follows : --

'2. 'Landlord' includes any person who is receiving or is entitled to receive the rent of a house whether on his own account or on behalf of another or on behalf of himself and others.'

The averment made in para 11 of the written statement shows that the petitioner in the House Rent Control Case had interest in the disputed house. The averment in para 11 of the written statement does not suggest that there has been a partition by metes and bounds where one Jadunath and Sitanath or his son had been exclusively allotted the disputed plot The said averment may at best show that Sitanath and after him, his son Prasanna was dealing with the disputed plot as a matter of convenience in accordance with an arrangement made in the family. We do not however, express any opinion as to whether Sitanath had any interest in the disputed property but our analysis, as aforesaid is on the basis of the averment made in the written statement. In view of the said averment it cannot be held that there was completed partition between the different co-sharers, if any, and that the suit house was allotted to the share of Sitanath exclusively.

7. Thus, according to the case of the present petitioners, the present Opposite Party No. 1 was one of the co-sharers/owners of the disputed plots. The definition of the expression 'Landlord' quoted above is an inclusive definition and brings within this Clause (4) any person who is entitled to receive rent. Assuming for the sake of argument that Sitanath and after him Prasanna had been realising the rent from the tenants in respect of the disputed house, it does not exclude the present Opposite Party No. 1 from being termed as a landlord inasmuch as he is entitled to receive the rent of the house on behalf of himself and others. According to the definition given in the Act there may be several persons who satisfy the requirements thereof to maintain an application under Section 7 of the Act. In the context of the case pleaded by the present petitioners it cannot be held that the Opposite Party No. 1 is not a landlord within the definition of the Act and that there is no relationship of landlord and tenants between the parties.

8. The learned courts below held that the rent receipts Exs. A, B, C & D series were not genuine. Having gone through the evidence of witnesses examined by the present petitioners and also the documents proved in support of the payment of ren t alleged to have been made by the present petitioners, we have no hesitation to hold that the rent receipts are not genuine. On the basis of the said rent receipts it cannot be said that the present petitioners had been paying rent of the house as alleged by them. Consequently the petitioners are bound to be held as wilful defaulters within the meaning of Section 7 of the Act.

9. Even though eviction of the tenants was prayed also on the ground of personal requirement of the landlords, in view of our finding that the tenants were wilful defaulters, they are liable to be evicted even if the question of bona fide requirement is found against the landlords. The petitioners in this writ application have challenged the judgment of the appellate authority (Annexure 2) on the ground that there has been no discussion of the evidence on record on the question of bona fide requirement. This Court in a Full Bench decision reported in 41 Cut LT 460 : (AIR 1975 Ori 130), H. Mohammad Sikandar v. Badrunissa Bibi has laid down that Section 7(4) of the Act clearly provides that even if the occupation is required for any member of the family of the owner, it will be a requirement of the house in good faith.

The learned appellate Court has referred to the evidence of P.W. 2 and Ex. 1 and has recorded a finding that the requirement of the landlord-petitioners in the Court below of the disputed house for running business is bona fide. This finding is essentially one of fact and cannot be assailed by this Court in exercise of its powers under Articles 226 and 227 of the Constitution.

10. In the result, this writ application fails and the same is dismissed. In the peculiar facts and circumstances of the case, there would be no order as to costs.


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