Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(Raj) 1826

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Prakash Gupta, J.
Ragiq Khan - Appellant
Versus
Khairunnisha and others - Respondent
S.B. Civil First Appeal No. 334 of 1999.
Decided On : 23-09-2015

Advocates:
For the Appellants:Shri Bihari Lal Agarwal along with Mr. Akash Gupta, Advocate.
For the Respondents:Mr. Ajeet Bhandari along with Mr. Jitendra Mishra, Advocate.

In a suit for eviction, the burden of proof lies upon the plaintiff to prove the relationship of landlord and tenant between the parties. In the absence of such proof, the plaintiff may still be entitled to a decree for possession on the basis of ownership.

Headnote:
LANDLORD AND TENANT - EVICTION - POSSESSION - OWNERSHIP - BURDEN OF PROOF - In a suit for eviction, the burden of proof lies upon the plaintiff to prove the relationship of landlord and tenant between the parties. In the absence of such proof, the plaintiff may still be entitled to a decree for possession on the basis of ownership.
Fact of the Case:

Plaintiff-respondent No. 1 filed a civil suit against the appellant defendant No.1 and defendant-respondent No. 2 for eviction, mesne profits, possession and injunction relating to the suit property. It was averred that she had purchased the suit property from defendant No. 2 through registered sale-deed dated 4.10.1993. Defendant No.2 has purchased the said property from Rafiq Khan @ Mohammad Rafiq son of Bundu Khan through registered sale-deed dated 11.11.1967. At the time of the said transaction, defendant No. 2 disclosed that defendant No. 1 had been residing in the disputed property since May, 1987 on monthly rent of Rs. 550/- and had made payment of the rent till September, 1991. It was further alleged that till the date of filing of the suit, defendant No. 1 had made payment of rent for total 26 months but thereafter he did not make payment of rent and had committed default. It was further pleaded that the defendant made material alterations in the disputed premises and also created nuisance regarding which details were given in paragraph No. 16 of the suit. The premises is required by her for her own personal bona fide need. It was then mentioned that the defendant had denied the factum of her being owner of the property. Hence, on the basis of the above mentioned grounds, she is entitled to a decree for eviction against defendant No. 1. In the alternative, the plaintiff also claimed relief that in case the relationship of 'landlord and tenant' is not found to be proved then on the basis of ownership, decree of possession be passed in her favour.
Finding of the Court:

The finding of the learned trial court that the relationship of landlord and tenant between the plaintiff respondent and the defendant appellant has been established, is not based on the evidence and documents available on record. The plaintiff-respondent No.1 in her plaint averred that defendant No.2-respondent had disclosed her that defendant-appellant is a tenant in the premises since May, 1987. This fact was specifically in the knowledge of defendant-respondent No.2 but he was not examined as a witness. On the basis of the discussions made herein above, question No. (i) Is decided in the manner that the finding of the learned trial court on the issue that there is relationship of landlord and tenant between the parties is not based on evidence.
Issues: 1. Whether the finding of the learned trial court that the relationship of landlord and tenant between the plaintiff respondent and the defendant appellant has been established, is based on the evidence and documents available on record? 2. Whether, in the facts and circumstances of the instant case if it is not found proved that there is relationship of landlord and tenant between the parties then on the basis of ownership of plaintiff-respondent, a decree of possession can be passed or the case is to be remanded back to the trial court?
Ratio Decidendi: In a suit for eviction, the burden of proof lies upon the plaintiff to prove the relationship of landlord and tenant between the parties. In the absence of such proof, the plaintiff may still be entitled to a decree for possession on the basis of ownership.
Final Decision: Appeal dismissed.

JUDGMENT :

1. The instant Civil First Appeal under Section 96 of the Code of Civil Procedure has been filed by the appellant, defendant No. 1, being aggrieved by the impugned judgment and decree dated 21.9.1999 passed by the learned Additional District Judge No. 4, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 32/1994 whereby the trial court has decreed the suit filed by plaintiff respondent No. 1 for mesne profits, eviction, possession and permanent injunction.

2. Briefly stated the facts giving rise to the present appeal are that plaintiff-respondent No.1 had filed a civil suit against the appellant defendant No.1 and defendant-respondent No. 2 for eviction, mesne profits, possession and injunction relating to the suit property, the description of which has been given in paragraph No.2 of the plaint. I was averred that she had purchased the suit property from defendant No. 2 through registered sale-deed dated 4.10.1993. Defendant No.2 has purchased the said property from Rafiq Khan @ Mohammad Rafiq son of Bundu Khan through registered sale-deed dated 11.11.1967. At the time of the said transaction, defendant No. 2 disclosed that defendant No.1 had been residing in the disputed property since May, 1987 on monthly rent of Rs. 550/- and had made payment of the rent till September, 1991. It was further alleged that till the date of filing of the suit, defendant No.1 had made payment of rent for total 26 months but thereafter he did not make payment of rent and had committed default. It was further pleaded that the defendant made material alterations in the disputed premises and also created nuisance regarding which details were given in paragraph No. 16 of the suit. The premises is required by her for her own personal bona fide need. It was then mentioned that the defendant had denied the factum of her being owner of the property. Hence, on the basis of the above mentioned grounds, she is entitled to a decree for eviction against defendant No. 1. In the alternative, the plaintiff also claimed relief that in case the relationship of 'landlord and tenant' is not found to be proved then on the basis of ownership, decree of possession be passed in her favour.

3. Appellant defendant No. 1 filed his written statement to the suit and denied the facts mentioned in the same. It was his case that since defendant No. 2 was not the owner of the disputed property he had no legal right to sell the disputed property to the plaintiff. In fact, Smt. Hafizan, mother of defendant No. 1 appellant and real elder sister of defendant No. 2 was the owner of the disputed property and she had purchased the same through defendant No.2 from Rafiq Khan @ Mohammad Rafiq Khan son of Bundu Khan. Defendant No. 2 kept the sale deed with him and after the death of Hafizan, defendant No. 1 is the owner of the property. He has also disputed the fact that he is the tenant in the disputed property. The grounds of ejectment mentioned in the suit are also denied.

4. Rahmatullah, defendant respondent No. 2 filed separate written statement and admitted the averments made in the plaint and submitted that since he was the maternal uncle of defendant No.1 neither any rent deed was executed nor any receipt of rent was given. It was also mentioned that defendant No. 1 is tenant in the disputed property from May, 1986 and not from 1987.

5. On the basis of the pleadings of the parties, the trial court framed the i following issues:-

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2015 Supreme(Raj) 1826

RAJASTHAN HIGH COURT AT JAIPUR BENCHPrakash Gupta, J.Ragiq Khan - AppellantVersusKhairunnisha and others - RespondentS.B. Civil First Appeal No. 334 of 1999.Decided On : 23-09-2015

In a suit for eviction, the burden of proof lies upon the plaintiff to prove the relationship of landlord and tenant between the parties. In the absence of such proof, the plaintiff may still be entitled to a decree for possession on the basis of ownership.

Cases Referred (4)

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Prakash Gupta, J.
Ragiq Khan - Appellant
Versus
Khairunnisha and others - Respondent
S.B. Civil First Appeal No. 334 of 1999.
Decided On : 23-09-2015