9911796707
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Issues Involved:
1. Maintainability of the suit and cause of action. 2. Plaintiff's title to the property. 3. Validity of the two registered deeds from 1946 and 1948. 4. Whether the lease deed of 1953 was nominal and not intended to be operative. 5. Applicability of Section 6 of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947. 6. Determination of tenancy and requirement of notice under Section 111(g) of the Transfer of Property Act. 7. Plea of absence of notice raised for the first time in appeal. Detailed Analysis: 1. Maintainability of the Suit and Cause of Action: The defendant contested the suit's maintainability and claimed there was no cause of action. The trial court found the suit maintainable and held that there was a valid cause of action for the plaintiff to seek eviction and arrears of rent. The appellate court upheld this finding, emphasizing that the plaintiff's right to re-enter the premises was triggered by the defendant's breach of lease conditions. 2. Plaintiff's Title to the Property: The defendant argued that the plaintiff was not the owner of the premises, claiming that he had taken a permanent settlement of the land under the names of the plaintiff due to familial concerns. The trial court found in favor of the plaintiff, confirming his ownership and the validity of the lease agreement dated 2nd December 1953. The appellate court did not challenge this finding, as it was a question of fact. 3. Validity of the Two Registered Deeds from 1946 and 1948: The defendant asserted that the two registered deeds were taken in the plaintiff's name as a "benami" transaction. The trial court rejected this claim, holding that the deeds were valid and the plaintiff was the rightful owner. This finding was upheld on appeal, with no challenge to the factual determination. 4. Whether the Lease Deed of 1953 Was Nominal and Not Intended to Be Operative: The defendant claimed that the lease deed executed on 2nd December 1953 was a sham and never intended to be operative. The trial court found the lease to be genuine and operative, a finding that was not contested on appeal. 5. Applicability of Section 6 of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947: The trial court held that Section 6 of the Bihar Buildings Control Act had been repealed and thus did not bar the suit. This finding was not contested in the appeal. 6. Determination of Tenancy and Requirement of Notice under Section 111(g) of the Transfer of Property Act: The defendant argued that the plaintiff had not determined the lease by giving a notice in writing as required under Section 111(g) of the Transfer of Property Act. The court noted that the suit was instituted the day after the default in rent payment, leaving no time for notice. The court held that the right to possession accrued on forfeiture, but the right to recover possession required a decree for eviction. The court concluded that the cause of action was the accrual of the right to possess the premises on forfeiture. 7. Plea of Absence of Notice Raised for the First Time in Appeal: The plea of absence of notice was raised for the first time in the second appeal. The court emphasized that under Order 8, Rule 2 of the Civil Procedure Code, the defendant must raise all matters showing the suit's non-maintainability in the written statement. The court held that the defendant's failure to raise the issue of notice during the trial or in the first appellate court precluded him from raising it in the second appeal. The court cited precedents to support the principle that inconsistent defenses based on contradictory facts are generally not permitted. Conclusion: The court dismissed the appeal, affirming the trial court's judgment and decree. The court held that the defendant's plea of absence of notice was not maintainable as it was raised for the first time in the second appeal. The plaintiff was entitled to evict the defendant and recover arrears of rent due to the breach of lease conditions. The judgment was concurred by both judges.
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