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PATNA HIGH COURT
B.P.Sinha and C.P.Sinha JJ.
Baijnath Sao
Versus
Ram Prasad
Appeal From Appellate Decree No. 569 of 1948 ;
Decided On : FEBRUARY 19, 1951
BIHAR BUILDINGS CONTROL ACT, 1947 - JURISDICTION OF CIVIL COURTS - EVICTION OF TENANT - CONDITIONS - INTERPRETATION OF SECTIONS 11, 18(3) - FINALITY OF COMMISSIONER'S DECISION - JOINT LANDLORDS - APPLICABILITY OF SECTION 111, TRANSFER OF PROPERTY ACT.
Fact of the Case:
Plaintiff filed a suit for a declaration that the eviction order passed by the Commissioner under the Bihar Buildings Control Act, 1947, was ultra vires, null and void, and not binding on him. He also sought a permanent injunction restraining the defendant from ousting him from any portion of the holding in dispute.
Finding of the Court:
The lower appellate court decreed the suit, holding that the Commissioner's order was without jurisdiction as the defendant had no interest in a portion of the disputed katra and the Palit brothers, the proprietors, did not join in the application for eviction.
Issues: 1. Whether the civil court has jurisdiction to set aside the order of the Commissioner under the Bihar Buildings Control Act, 1947? 2. Whether the Commissioner had jurisdiction to decide the question of landlord and tenant relationship between the parties? 3. Whether the decision of the Commissioner is final and binding on the civil court? 4. Whether the provisions of Section 111, Transfer of Property Act, are applicable to the proceedings for eviction under the Bihar Buildings Control Act?
Ratio Decidendi: 1. The civil court has no jurisdiction to set aside the order of the Commissioner under the Bihar Buildings Control Act, 1947, as the Act has barred the jurisdiction of the civil courts under Section 18(3). 2. The Commissioner has jurisdiction to decide the question of landlord and tenant relationship between the parties as it is a preliminary finding of fact necessary to determine the applicability of the Act. 3. The decision of the Commissioner is final and binding on the civil court, as Section 18(3) of the Act provides that the decision of the Commissioner shall not be liable to be questioned in any court of law. 4. The provisions of Section 111, Transfer of Property Act, are not applicable to the proceedings for eviction under the Bihar Buildings Control Act, as the Act has provided its own conditions for eviction.
Final Decision: The judgment of the lower appellate court is set aside, and the suit is dismissed in respect of the defendant's portion in holding No. 23, except for an area of 5 1/2 feet in length towards the southern portion of holding No. 23. The defendant is entitled to three-fourths of the costs.
C.P.Sinha, J.
1. This is a defts. appeal which arises out of a suit filed by the pltf. for a declaration that the order of eviction by the Comr. Of the Patna Division, dated 29-8-1947, passed under the Bihar Buildings Control Act, 1947, is ultra-vires, null & void, without jurisdiction & not; binding on the pltf.; the pltf has also prayed for the issue of a permanent injunction restraining the deft. from ousting the pltf. from any portion of holding No. 23, circle No. 16 ward No. 8, situate in mahalla Sabzibagh of Bankipur.
2. The first Ct. dismissed the suit, but it has been decreed on appeal by Mr. K. K. Dutta, Addl. Subordinate Judge, 2nd Ct. Patna, by his judgement dated 23-2-1948.
3. The pltf.s case is that the entire holding No. 23 as well as holding No. 22, which is adjacent north of it, belonged to Messrs. T. C. Palit & S. C. Palit, that out of these two holdings, holding No. 22 was the tenancy of the deft. applt. & the northern portion of holding No. 23 was in the tenancy of one Lachhmi Mistry & the southern portion of holding No. 23, which is the portion in. dispute, has been in the tenancy of the pltf.s family since several generations & the pltf. holds-a shop & also lives in it with his family. It is alleged by the pltf. that the deft. took a permanent settlement of holding No. 22 as well as the northern portion of holding No. 23 from the proprietors by a deed dated 6-8-1946, & thereafter the deft. applied to the House Controller, Patna for evicting the pltf. on the allegation that he had purchased both the holdings Nos. 22 & 23. The House Controller had rejected the appln. of the deft. but on appeal, the Comr. has ordered the eviction of the pltf. The pltf. alleges that he is a. permanent tenant of the holding & that there is no relationship of landlord & tenant between the deft. & the pltf. & therefore, according to him, the. Bihar Buildings Control Act, 1947, had no application & consequently, the order of the Comr.. under that Act is without jurisdiction.
4. The deft. denied that the pltf. had a permanent tenancy in the disputed katra & also alleged that by the aforesaid deed the deft. has acquired interest in the entire holding No. 23 including the katra in the possession of the pltf. except to the extent of 3 feet out of that katra which is in the pltf.s occupation. The deft. pleaded further that the order passed by the Comr. was a valid order within his jurisdiction &, as such, the suit was barred under the provisions of the Act.
5. The learned lower appellate Ct. has com to the following findings : that the civil Ct. in spite of the provisions contained in Sec.18, Claulse (3), Bihar Buildings Control Act, has the jurisdiction to go into the question whether the Comr.s order has been passed against the provisions of this Act, or in violation of the fundamental principles of judicial procedure & the civil Ct. has jurisdiction to consider whether the order of the Comr. under that Act is ultra vires upon any of those grounds. It has been found further that the pltf. has failed to prove that he had a permanent tenancy in the disputed katra. The Ct. below has also found that the disputed katra comprises the southern portion of municipal holding No. 28. The deft. had admit lied that the proprietors, namely, the Palit brothers, had made a permanent settlement in favour of the deft. by virtue of the deed, Ex. A, dated 6 8-46. The Ct. below, upon a comparison of the boundaries & upon the construction of the deed (EX. A) has found that the permanent settlement with the deft. includes the whole of the disputed katra excepting an area of 6 1/2 feet towards the south He has found further that there is no relationship of landlord & tenant between the deft. & the pltf. with respect to that part of the disputed katra, namely, the southern portion up to a length of 5 1/2 feet, & upon that finding, he has held the order of the Comr. evicting the pltf. is evidently without jurisdiction on that ground alone so far at le
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