2009 Supreme(SC) 1594

2009(6) Supreme 739
SUPREME COURT OF INDIA
Tarun Chatterjee , G.S. Singhvi and R.M. Lodha, JJ.
Bibi Zafira Khatoon and others — Appellants
versus
Mohammed Hussain and another — Respondents
Civil Appeal No. 2098 of 2000
Decided on : 17-09-2009

IMPORTANT POINT
Section 12 of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 seeks to ensure delivery of vacant possession of the premises to the landlord by evicting not only the tenant but any other person who may be occupying the premises.

Headnote:Bihar Building (Lease, Rent and Eviction) Control Act, 1982 -– Section 12 –- Appeal against order passed by Single Judge of High Court whereby he dismissed the civil revision preferred by the appellants against dismissal of the application filed by them for execution of the decree of eviction –- While deciding the suit for specific performance filed by respondent 1, trial Court recorded an unequivocal finding that landlord had not put respondent No.1 in possession of the suit premises and the said finding had been confirmed by High Court, his continued occupation thereof had to be treated as unauthorized and Section 12 of the Act was clearly attracted in his case –- Respondent No.1 could not take benefit of first part of the proviso to Section 12 because the suit for specific performance of the agreement for sale filed by him was dismissed by the trial Court and challenge to judgment and decree of the trial Court has been negatived by the High Court and this Court –- Respondent No.1 could not take advantage of second part of the proviso to Section 12 because it was neither his pleaded case nor any evidence was produced before the trial Court to show that he was inducted as a tenant in the suit premises with express permission of the landlords, i.e. appellant No.1 and her husband-Executing Court committed an error by refusing to execute the decree of eviction against respondent No.1 -– View taken by High Court on the applicability of Section 12 of the Act qua respondent No.1 held clearly flawed and untenable –- Impugned order of High Court set aside -– Execution application filed by appellants allowed –- Appeal allowed (Paras13 to15)

       Facts of the Case :

        Appellant No.1, and her husband filed suit for eviction of respondent No.2, from a portion of their residential house situated at Motihari on the grounds of personal and bonafide necessity and default in payment of rent. In the written statement filed by him, respondent No.2 denied the very existence of the landlord-tenant relationship between the parties. He claimed that he never occupied the house belonging to appellant No.1 and her husband or any portion thereof as a tenant. While admitting that he possessed spiritual power, respondent No.2 pleaded that appellant No.1 and her husband sought his blessings and they were immensely benefited by his association. According to respondent No.2, appellant No.1 and her husband felt that their house was haunted by evil spirits who killed their two sons and requested him with folded hands to use his spiritual power to drive away the evil spirits and, therefore, he agreed to occupy one room in the year 1978. Respondent No.2 further pleaded that requested him to find out some purchaser and after some talks, the sale of house was finalized with respondent No.1, Thereafter, agreement (mahadanama) dated 9.1.1982 was executed between appellant No.1, her husband and respondent No.1 and the latter was given possession of the house.

        2. After detailed analysis of the pleadings of the parties and the evidence produced by them, the trial Court dismissed the suit for specific performance of the agreement for sale and decreed the one filed for eviction of respondent No.2. Appeal preferred by respondent No.2 against the decree of eviction was dismissed by the 4th Additional District Judge, Motihari, who confirmed the finding recorded by the trial Court that need of the landlords was bonafide.

        3. After dismissal of the appeal filed by respondent No.2 against the decree of eviction, the appellants filed an application for execution thereof impleading the respondents herein as parties. On notice, respondent No.1 filed objection petition under Section 47 read with Section 151 of the Civil Procedure Code. He pleaded that decree cannot be executed against him because the trial Court had ordered eviction of respondent No.2 only

        4. Executing Court allowed the objection petition and dismissed the execution Application by observing that the decree of eviction was passed only against respondent No.2 and not against the objector.

        5. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        While deciding the suit for specific performance filed by respondent 1, trial Court recorded an unequivocal finding that landlord had not put respondent No.1 in possession of the suit premises and the said finding had been confirmed by High Court, his continued occupation thereof had to be treated as unauthorized and Section 12 of the Act was clearly attracted in his case. Respondent No.1 could not take benefit of first part of the proviso to Section 12 because the suit for specific performance of the agreement for sale filed by him was dismissed by the trial Court and challenge to judgment and decree of the trial Court has been negatived by the High Court and this Court. Respondent No.1 could not take advantage of second part of the proviso to Section 12 because it was neither his pleaded case nor any evidence was produced before the trial Court to show that he was inducted as a tenant in the suit premises with express permission of the landlords, i.e., appellant No.1 and her husband. Executing Court committed an error by refusing to execute the decree of eviction against respondent No.1 – View taken by High Court on the applicability of Section 12 of the Act qua respondent No.1 held clearly flawed and untenable. Impugned order of High Court was set aside. Execution application filed by appellants was allowed

       Result : Appeal allowed