Manoj Kumar Saraika Vs. Ramesh Sahu and ors. - Court Judgment

Excerpt:
deeds and documents - determination of nature of document--'bihar buildings (lease, rent and eviction) control act, 1982, sections 3, 11(1)(a) and 14--landlord taking advance of rs. 20,000/- from tenant--executing a document having nomeniculture of usufactory mortgage but containing terms of tenancy also--filed that document in suit for eviction of tenant, describing it as lease deed--court below without understanding its real nature, decreed suit--high court found that approach of court below was erroneous, remanded case to it for decision afresh--some factors necessary for decision--mentioned. - - 20,000/- has been advanced and it has been specifically mentioned that for security of the amount, the defendant had been put to possession and allowed to enjoy and for sake of such enjoyment, the amount of advance is to be adjusted on a rate quarterly fixed as per the contents of the document itself. the other vital point as raised from the side of the defendant-petitioner in the written statement has not at all been considered by the learned court below regarding section 3 of the act which debars the landlord to take any payment from the tenant towards premium, salami, fine or any other like sum or advance of rent exceeding one month's rent. prasun kumar deb, j.1. this civil revision application has been directed against the judgment and decree dated 4.6.1996 passed by shri s.k. srivastava, munsif, ranchi, in eviction (title) suit no. 14 of 1995 under section 14 of the bihar buildings (lease, rent and eviction) control act, 1982 (hereinafter to be referred to as 'the act').2. the suit premises consists of a shop situated in the building comprised in m.s. holding nos. 1027 and 1097 within ward no. ii (old), present ward no. viii of ranchi municipal corporation at buchar gali, ranchi. the suit is based on a deed of settlement of the suit premises between the parties. according to the plaintiffs, although the deed dated 14.2.1990 has the nomenclature of usufructuary mortgage. it is a lease deed for all practical purposes and on the basis of the same, the defendant has been inducted as a tenant in the shop house on a monthly rental of rs. 1000/- per quarter. by the deed, advance of rs. 20,000/- has been taken from the defendant by the landlord-plaintiffs and the said amount is to be adjusted towards the rental as mentioned above within five years. according to the plaintiffs, after the five years was completed, the defendant-petitioner did not vacate the suit premises and hence eviction has been sought for on the ground of expiry of the term of tenancy as contemplated under the act. the suit was proceeded under the summary procedure under section 14 of the act.3. the main contest in the suit is with respect to the interpretation of the deed as to whether it is a mortgage deed. the learned court below decreed the suit after consideration of legality and other oral evidence to the effect that the deed although it was mentioned as a mortgage deed but it was practically a lease deed and hence after the period of lease, the defendant is liable for eviction.4. to appreciate the submissions made on behalf of the parties, the original case record was brought.5. mr. ughal, learned counsel appearing on behalf of the defendant-petitioner submitted that for all purposes, the deed was not by nomenclature alone a deed of mortgage and it was never a lease deed. according to mr. n.k. prasad, learned counsel appearing on behalf of the plaintiffs-opposite parties, from the terms and conditions of the deed and its averments and contents, it is clear that the suit premises was given to the defendant-petitioner by the plaintiffs for enjoyment as a tenant and usual terms and conditions of tenancy were being incorporated in the document itself and as such by nomenclature of usufructuary mortgage, the deed cannot be construed as mortgage but should be legally construed as a lease deed he has referred to the written statement of the defendant at paragraph 11 and other paragraphs wherefrom it could be found that the defendant was already a tenant in the suit premises and then the deed was executed. so according to the plaintiffs, it was an admitted fact that the defendant was a tenant under the plaintiffs on month to month basis.6. it might be that the defendant was a tenant on month to month basis under the plaintiffs and a tenant is not debarred in taking mortgage of the tenanted premises from the landlord and then generally tenancy is merged with the right of mortgagee if no distinction is vested by averments of the deed or by intention os that averment alone that the defendant was a tenant previous to the execution of the deed may not infer that the mortgage deed was only a deed of lease for the purpose of continuance of the tenancy rather it goes against the plaintiffs with regard to month to month tenancy even if the deed is construed as a lease deed. the same tenancy has been transformed to a tenancy with condition of payment of quarterly rent year wise. if month to month tenancy is transformed to a quarterly tenancy as per the deed then there remains big interrogation sign as to whether the act would be applicable for the purpose of eviction or not. moreover, although it is a fact that a deed is required to be construed from its contents regarding its nature and it should not be construed by its nomenclature alone but in construing so, it must be seen what was the purpose behind it and the intention between the parties. the averments made before the lower court that usufructuary mortgage cannot be made in respect of a house and it is applicable only in respect of agricultural land and accepted by the learned court below is not at all proper and legal. generally usufructuary mortgages are created in respect of agricultural land for the purpose of enjoyment of usufruct but a building in the urban area may also be included within the definition of usufructuary mortgage as enjoyment and taking usufructs of the premises remains purposely the object of the mortgage. if it is construed for arguments sake that the deed is not a usufructuary mortgage deed as it relates to a shop house then also it does not loose the character of a mortgage. in case of such nature, it might be construed as an anomalous mortgage. by nomenclature of usufructuary mortgage, if by contents do not come within the definition of usufructuary mortgage, it does not loose the character of mortgage deed itself, it may be construed as the anomalous mortgage.7. in the present case, rs. 20,000/- has been advanced and it has been specifically mentioned that for security of the amount, the defendant had been put to possession and allowed to enjoy and for sake of such enjoyment, the amount of advance is to be adjusted on a rate quarterly fixed as per the contents of the document itself. the enjoyment has been restricted by making some terms and conditions and hence by such restrictions alone, the deed may not be construed as a lease deed alone. all matters had not been considered by the learned court below in proper perspective as is revealed from the cryptic judgment itself. clause no. 12 of the mortgage deed has not been considered at all. the other vital point as raised from the side of the defendant-petitioner in the written statement has not at all been considered by the learned court below regarding section 3 of the act which debars the landlord to take any payment from the tenant towards premium, salami, fine or any other like sum or advance of rent exceeding one month's rent. this is vital matter to be considered while construction of a document on the basis of which the present suit has been filed. besides the document, it is also necessary to discuss oral evidence as to the nature of enjoyment of the property whether as a tenant or not or as a mortgagee. it may be that for the purpose of easy way of getting the suit premises vacated, aid of the act has been taken by the plaintiffs which they might not get so easily in a redemption suit for mortgage. all those matter is required to be considered in their proper perspective but when the decision is cryptic by the learned court below, i feel that the matter should go back to the court of learned munsif, ranchi, again on remand to consider the cases of the parties in their proper perspective both legally and on factual aspect as per discussions made above.8. for the reasons aforesaid, this revision petition is allowed, the judgment and decree of eviction is hereby set aside and the matter is sent back to the learned court below on remand for proceeding according to law in the light of the observations made above. if necessary, the parties may be allowed to adduce further evidence also.

Judgment:

Prasun Kumar Deb, J.

1. This Civil Revision application has been directed against the judgment and decree dated 4.6.1996 passed by Shri S.K. Srivastava, Munsif, Ranchi, in Eviction (Title) Suit No. 14 of 1995 under Section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter to be referred to as 'the Act').

2. The suit premises consists of a shop situated in the building comprised in M.S. Holding Nos. 1027 and 1097 within Ward No. II (old), present Ward No. VIII of Ranchi Municipal Corporation at Buchar Gali, Ranchi. The suit is based on a deed of settlement of the suit premises between the parties. According to the plaintiffs, although the deed dated 14.2.1990 has the nomenclature of usufructuary mortgage. It is a lease deed for all practical purposes and on the basis of the same, the defendant has been inducted as a tenant in the shop house on a monthly rental of Rs. 1000/- per quarter. By the deed, advance of Rs. 20,000/- has been taken from the defendant by the landlord-plaintiffs and the said amount is to be adjusted towards the rental as mentioned above within five years. According to the plaintiffs, after the five years was completed, the defendant-petitioner did not vacate the suit premises and hence eviction has been sought for on the ground of expiry of the term of tenancy as contemplated under the Act. The suit was proceeded under the summary procedure under Section 14 of the Act.

3. The main contest in the suit is with respect to the interpretation of the deed as to whether it is a mortgage deed. The learned court below decreed the suit after consideration of legality and other oral evidence to the effect that the deed although it was mentioned as a mortgage deed but it was practically a lease deed and hence after the period of lease, the defendant is liable for eviction.

4. To appreciate the submissions made on behalf of the parties, the original case record was brought.

5. Mr. Ughal, learned Counsel appearing on behalf of the defendant-petitioner submitted that for all purposes, the deed was not by nomenclature alone a deed of mortgage and it was never a lease deed. According to Mr. N.K. Prasad, learned Counsel appearing on behalf of the plaintiffs-opposite parties, from the terms and conditions of the deed and its averments and contents, it is clear that the suit premises was given to the defendant-petitioner by the plaintiffs for enjoyment as a tenant and usual terms and conditions of tenancy were being incorporated in the document itself and as such by nomenclature of usufructuary mortgage, the deed cannot be construed as mortgage but should be legally construed as a lease deed he has referred to the written statement of the defendant at paragraph 11 and other paragraphs wherefrom it could be found that the defendant was already a tenant in the suit premises and then the deed was executed. So according to the plaintiffs, it was an admitted fact that the defendant was a tenant under the plaintiffs on month to month basis.

6. It might be that the defendant was a tenant on month to month basis under the plaintiffs and a tenant is not debarred in taking mortgage of the tenanted premises from the landlord and then generally tenancy is merged with the right of mortgagee if no distinction is vested by averments of the deed or by intention os that averment alone that the defendant was a tenant previous to the execution of the deed may not infer that the mortgage deed was only a deed of lease for the purpose of continuance of the tenancy rather it goes against the plaintiffs with regard to month to month tenancy even if the deed is construed as a lease deed. The same tenancy has been transformed to a tenancy with condition of payment of quarterly rent year wise. If month to month tenancy is transformed to a quarterly tenancy as per the deed then there remains big interrogation sign as to whether the Act would be applicable for the purpose of eviction or not. Moreover, although it is a fact that a deed is required to be construed from its contents regarding its nature and it should not be construed by its nomenclature alone but in construing so, it must be seen what was the purpose behind it and the intention between the parties. The averments made before the lower court that usufructuary mortgage cannot be made in respect of a house and it is applicable only in respect of agricultural land and accepted by the learned court below is not at all proper and legal. Generally usufructuary mortgages are created in respect of agricultural land for the purpose of enjoyment of usufruct but a building in the Urban area may also be included within the definition of usufructuary mortgage as enjoyment and taking usufructs of the premises remains purposely the object of the mortgage. If it is construed for arguments sake that the deed is not a usufructuary mortgage deed as it relates to a shop house then also it does not loose the character of a mortgage. In case of such nature, it might be construed as an anomalous mortgage. By nomenclature of usufructuary mortgage, if by contents do not come within the definition of usufructuary mortgage, it does not loose the character of mortgage deed itself, it may be construed as the anomalous mortgage.

7. In the present case, Rs. 20,000/- has been advanced and it has been specifically mentioned that for security of the amount, the defendant had been put to possession and allowed to enjoy and for sake of such enjoyment, the amount of advance is to be adjusted on a rate quarterly fixed as per the contents of the document itself. The enjoyment has been restricted by making some terms and conditions and hence by such restrictions alone, the deed may not be construed as a lease deed alone. All matters had not been considered by the learned court below in proper perspective as is revealed from the cryptic judgment itself. Clause No. 12 of the mortgage deed has not been considered at all. The other vital point as raised from the side of the defendant-petitioner in the written statement has not at all been considered by the learned court below regarding Section 3 of the Act which debars the landlord to take any payment from the tenant towards premium, salami, fine or any other like sum or advance of rent exceeding one month's rent. This is vital matter to be considered while construction of a document on the basis of which the present suit has been filed. Besides the document, it is also necessary to discuss oral evidence as to the nature of enjoyment of the property whether as a tenant or not or as a mortgagee. It may be that for the purpose of easy way of getting the suit premises vacated, aid of the Act has been taken by the plaintiffs which they might not get so easily in a redemption suit for mortgage. All those matter is required to be considered in their proper perspective but when the decision is cryptic by the learned court below, I feel that the matter should go back to the court of learned Munsif, Ranchi, again on remand to consider the cases of the parties in their proper perspective both legally and on factual aspect as per discussions made above.

8. For the reasons aforesaid, this revision petition is allowed, the judgment and decree of eviction is hereby set aside and the matter is sent back to the learned court below on remand for proceeding according to law in the light of the observations made above. If necessary, the parties may be allowed to adduce further evidence also.