Mohammad Anzar Ahmad Vs. Masood Alam and Anr - Court Judgment

SooperKanoon Citationsooperkanoon.com/76866
CourtJharkhand High Court
Decided OnAug-26-2016
AppellantMohammad Anzar Ahmad
RespondentMasood Alam and Anr
Excerpt:
1 in the high court of jharkhand at ranchi ---- second appeal no. 13 of 2012 ----- against the judgment and decree dated 21.01.2012 and 31.01.2012 respectively passed in eviction appeal no.05/2009 by the learned district judge-iii,singhbhum east at jamshedpur dismissing the judgment and decree dated 25.07.2008 and 08.08.2008 respectively passed in eviction suit no.47 of 1997 by the learned subordinate judge-vi, singhbhum east at jamshedpur. ------ mohammad anzar ahmad, son of late menazerul haque, r/o 517, a, kasidih shop area, straight mile road, p.o.p.s. sakchi, town jamshedpur, district-singhbhum east. .... appellant. -versus- 1. masood alam, son of late abdul rauf, r/o 'gulistan', 981, kanke road, p.o. kanke, p.s. gonda, district-ranchi.2. state of jharkhand. ….... respondents. ------ for the appellant : m/s. rajiv ranjan tiwari, advocate. for the respondents : m/s.krishna murari,k.k.ambastha, advocates. ----- present coram: hon'ble mr. justice amitav k. gupta ----- amitav k. gupta,j: this second appeal has been preferred against the judgment and decree dated 21.01.2012 and 31.01.2012 respectively whereby the learned district judge-iii, singhbhum east at jamshedpur, in eviction appeal no.5 of 2009 affirmed the judgment dated 25.07.2008 passed by the learned subordinate judge-vi of singhbhum east, jamshedpur in eviction suit no.47 of 1997 decreeing the suit in favour of the plaintiff/respondent.2. the second appeal was admitted for hearing on formulation of the following substantial question of law:- “ whether the learned courts below have committed serious error in framing the issue and deciding the question of title over the suit property in a suit for eviction?”3. the plaintiff, i.e. the respondent in this appeal, had instituted the suit for eviction of the defendant/tenant, the appellant herein, on the ground of default in payment of rent from february, 1994 to march, 1997. the plaintiff's case is that he is the owner of the suit premises comprising of a single storied building situated on 2 holding no.517-a, kasidih at jamshedpur. the suit property was allotted to abdul rauf, the plaintiff's father who died in the year 1971 and the other legal heirs of abdul rauf, by a registered deed, relinquished their rights in the suit property in favour of the plaintiff. the defendant was inducted as a tenant with respect to one shop room in the said building by the plaintiff's father on monthly rent as per english calendar. the rent was to be paid at the end of the month and the plaintiff used to grant rent receipts against the monthly rent paid by the defendant, but, after february 1994 in violation of the terms of the tenancy, the defendant stopped paying rent and defaulted in payment of rent from february, 1994 to march 1997. on the above grounds the suit was filed for eviction of the defendant/appellant as he defaulted in payment of the rent for two months. the plaintiff also claimed arrears of rent from april, 1994 till the date of the filing of the suit.4. the defendant contested the suit and in his written statement he asserted that the suit property was a wakf property, thus the plaintiff did not have any title over the suit property nor was he the owner of the suit property. the defendant's case is that a vacant piece of land was given on rent initially by the mutwali of safdar ali wakf estate, on a monthly rent of rs.100/- which was subsequently enhanced to rs.500/- per month in 1993. that the defendant had constructed a room at his own cost over the vacant land. the defendant stated that the plaintiff used to realise the rent from the defendant through the agent who used to grant him kachcha receipts on the assurance that pacca receipts would be made available later. the defendant used to pay the rent as and when demanded and denied that he had defaulted in payment of rent and in fact he has been paying the rent regularly to the plaintiff's agent from february, 1994 to march, 1997 and they granted the rent receipts, hence he is not liable to pay the arrears of rent from april, 1994 to march,1997.5. on the pleadings of the parties, the trial court framed 5 issues which are as follows:- “i. is the suit framed maintainable and has the plaintiff a valid cause of action? ii. is there a relationship of landlord and tenant between the plaintiff and defendant? iii. whether the defendant is a defaulter in payment of rent and liable to be evicted from the suit premises and also liable for payment of arrears of rent? 3 iv. whether the suit land is a wakf property and the suit is hit by the provision of section 32 of the bihar buildings(lease,rent and eviction)control act? v. to what other relief/reliefs plaintiff is entitled to?”6. during the trial the plaintiff/respondent filed an application under section 15 of the bihar buildings(lease, rent and eviction) control act(hereinafter to be referred as the act.) for directing the defendant to deposit the arrears of rent and to pay the current rent which was allowed by the trial court. despite the opportunity given to the defendant, the arrears of rent and the current rent was not deposited or paid by the defendant/appellant whereupon by order dated 19.04.2002, the trial court struck off the defence of the defendant. the plaintiff led his evidence and the trial court decreed the suit in favour of the respondent/plaintiff.7. being aggrieved by the judgment of the trial court, the defendant preferred eviction appeal no.5 of 2009 before the district judge-iii. the lower appellate court on the arguments advanced by the parties framed the following points for determination:- 1. whether the respondent has got title over the suit property and thus is the owner of the suit premises.2. whether the appellant has defaulted in payment of rent from february, 1994 to march, 1997.8. the lower appellate court, after thorough discussion of the facts and on scrutiny and analysis of the evidence on record, held that there was a relationship of landlord and tenant and the respondent/plaintiff was the owner of the suit property. it held that the appellant/defendant has defaulted payment of the rent and is liable to be evicted from the suit premises, thereby affirming the judgment and decree of the trial court. in view of the concurrent findings of the trial and the lower appellate court, the second appeal has been preferred and admitted for hearing on the substantial question of law as mentioned in para 2 here-in-above. 4 9. learned counsel for the appellant, while assailing the concurrent findings of the court below, has contended that the court below has committed an error in law by precluding or denying the appellant/defendant the right to cross-examine the plaintiff and his witnesses, regarding the title of the plaintiff/respondent over the suit property because the appellant/defendant had denied the title of the plaintiff/respondent over the suit property and pleaded that a vacant piece was given on rent to the defendant/appellant. it is argued that under section 15 of the act only defence as against the ejectment from the suit property is struck off and since the suit was filed with respect to recovery of arrears hence the defendant was entitled to cross-examine the witnesses as he had asserted in the written statement that he had paid the rent and was not a defaulter. it is contended that even when the defence was struck off then the plaintiff had to establish his case on the basis of the evidence adduced by him and the courts below have committed an error in law by looking into and considering the averments made in the written statement of the defendant/appellant. it is argued that the plaintiff has not led any evidence to establish the fact that he had the title or was the owner of the property or the defendant/appellant was a defaulter for non-payment of the rent from february 1994 onwards till the filing of the suit.10. in support of his contention learned counsel for the appellant/defendant has relied on the following decisions:- i. mahabir ram vs. shiv shankar prasad, 1968 pljr76 ii. modula india vs. kamakhya singh dev, 1989 air (sc) 162. iii. gopal krishna g. ketkar vs. mohd. haji latif and ors., 1968 air (sc) 1413. iv. bogidhola tea and trading company ltd. vs. hiralal somani, 2008 air911 1992(2) pljr195 11. per contra, learned counsel for the respondent has supported the impugned judgments of the lower courts and contended that similar arguments were advanced by the 5 appellant/defendant before the lower appellate court, which has considered the same and on appreciation of the evidence and the provisions of law, has passed a reasoned order affirming the decree and judgment of the trial court. it is argued that when the trial court had struck off the defence of the defendant/appellant by order dated 19.04.2002, at that point of time, the appellant/defendant had filed petitions and sought adjournment on several dates, for more than a year, on the ground that he intended to challenge the order dated 19.04.2002 by invoking the revisional jurisdiction of the higher court. it is urged that on the prayer of the defendant/appellant the trial court had adjourned the case on several dates granting time to the defendant/appellant to bring appropriate order from the high court. despite the latitude shown by the trial court the defendant/appellant failed to challenge the order for one and a half years whereupon, the trial court proceeded with the trial. the plaintiff as well as his witnesses were examined and on appreciation of the evidence the suit was decreed in favour of the plaintiff. in course of hearing of this appeal learned counsel for the appellant has brought on record the photocopy of the petition filed under section 17 of the jharkhand buildings(lease,rent & eviction) control act,2011 in h.r.c. case no.13 of 2013, by the defendant/appellant against the respondent/plaintiff wherein the defendant/appellant was the petitioner and the respondent/plaintiff was arrayed as o.p. and the appellant/defendant has admitted that he is a monthly tenant of the plaintiff/respondent and had prayed that the controller be pleased to direct the plaintiff/respondent to restore the electric connection of the suit premises.12. learned counsel has referred to various decisions rendered in second appeal of this court which were preferred by this appellant and other tenants against the judgment and decree of the lower courts in the suit filed by the plaintiff/respondent against other tenants of the same suit property. that the second appeal nos.54 of 2012 and 96 of 2012 preferred by this appellant along with other tenants were dismissed by the learned single judge whereafter the defendant/appellant along with the others had filed special 6 leave to appeal(civil) no.466/2016 which was dismissed by the supreme court with observation that there was no merit in the appeal.13. heard. at this juncture the learned counsel for the plaintiff/respondent has not controverted or denied either the submission or the copy of the judgment in s.l.p.no.466/2016 neither the photocopy of the petition filed by the defendant/appellant under section 17 before the house rent controller. it is not denied that he was one of the appellants in s.a.54/2012 which was preferred by him along with other appellants, who were tenants of the shops situated in the same suit premises, against the decree granted in favour of the respondent/plaintiff in the said eviction suit.14. the arguments and the decisions relied upon by the learned counsel for the appellant that even in case where the defence has been struck off as against ejectment, the defendant has the right to cross-examine the plaintiff when the defendant has challenged the title, is no more res integra, in view of the settled proposition of law and the decisions cited by the learned counsel for the appellant. however, the contention of the counsel for the appellant that the court below should not have looked into or considered the averments made in the written statement of the appellant/defendant since the defence was struck off in terms of section 15 and the trial court should have passed the judgment and order on the basis of the evidence led by the plaintiff though not disputed but, in my considered opinion only the defence against ejectment is struck off and not the admissions made in the written statement. section 17 of evidence act,1872, defines admission which may be oral or written or by signs or silence or conduct, etc and section 18 enumerates the circumstances in which such admission can be considered. it is well settled that admission in pleadings or judicial admission stands on a higher footing and is binding on the maker. section 56 of the evidence act stipulates that no fact of which the court will take judicial notice needs to be proved. the courts below have considered the pleadings in the written statement because the defendant/appellant, while denying the title and ownership of the respondent/plaintiff over 7 the property, has at the same time, pleaded and admitted that he was paying rent regularly to the plaintiff's agent who used to grant him kachcha rent receipts and assured him that pacca(original) receipts would be provided later on. as noticed above, the defendant/appellant has not denied that he was one of the appellants in s.a.no.54/2012 which was preferred against the judgment and decree passed in favour of the plaintiff/respondent in eviction suit no.5 of 1997 by the court of sub-judge-vi, jamshedpur against the defendant/appellant and other tenants of the shops in the same suit premises. it is not denied by the appellant/defendant that during the pendency of this second appeal he had filed a petition under section 17 of the j.b.c. act, 2011 in h.r.c. case no.33 of 2013 in the court of house rent controller, dalbhum at jamshedpur. thus in terms of section 18 read with section 56 of the indian evidence act, the admissions can be looked into to determine whether the defendant/appellant was genuinely challenging the ownership and title of the plaintiff or it was merely a pretence to linger the litigation and trial.15. the appellant/defendant has not denied the fact that the he had sought adjournments on the ground that he intended to challenge the order passed under section 15(1) of the b.b.c act, 1982 and the trial court had shown indulgence and leniency in adjourning the proceeding by granting liberty to the appellant/defendant to bring appropriate order of the higher court but the appellant/defendant, for reasons best known to him, did not take steps to challenge the said order. the trial lingered and was delayed due to the lackadaisical approach of the appellant. it is settled principle that delay defeats equity and in the light of the discussions made here-in-above it is evident that the appellant/defendant has not come with clean hands and his conduct is not above board.16. it is settled proposition of law that under section 96, the first appellate court is the last court of facts and under section 100 of the code of civil procedure, the high court cannot interfere with the findings of facts unless and until it is found to be perverse. section 100 is hedged in with restrictions and even if the finding of facts is erroneous, it should not be disturbed until or unless it is vitiated or based on assumptions 8 and conjectures or have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant or inadmissible material. these are the enunciated principles settled in plethora of decisions by the supreme court. in the instant case, the concurrent findings arrived at by the courts below are based on thorough discussion of the provisions of law and the evidence on record and is not vitiated by any capriciousness to come under the shadow of perversity. consequently, the argument of the learned counsel for the appellant is unacceptable and responded to accordingly. at this juncture it is to be observed that the learned counsel has not addressed this court or argued on the substantial question of law formulated for hearing of the second appeal.17. the substantial question of law so framed does not arise in the present case as it is settled legal position that when the title of the landlord is challenged by the person in an eviction suit on the ground that he was not a tenant and the landlord does not have the title or is the owner of the building, then the court can look into the question of title incidentally to arrive at the finding that there exists a relationship of landlord and tenant between the plaintiff and defendant and the suit was maintainable under the act and the plaintiff was entitled to the reliefs as prayed for. the law is also settled in terms of section 116 of the indian evidence act that a tenant is estopped from challenging the title of the landlord. in the facts of the present case, the appellant/defendant has admitted the fact that he is a tenant and that he used to remit rent to the agent of the plaintiff/respondent, hence he is estopped from challenging the title of the landlord/respondent. therefore, in view of the settled legal position and on perusal of the judgment of the lower appellate court it ex facie discloses that the lower appellate court has appreciated the enunciated principles and considered the evidence adduced by the plaintiff by appreciating the documentary evidence, i.e., exhibit 1, the mutation order whereby the possession of the plaintiff/respondent over the suit property was found and it has rightly held that the respondent/plaintiff was the owner of the 9 suit premises and there was relationship of landlord and tenant between the respondent/plaintiff and the defendant/appellant. it is well settled that mutation order is not a document or instrument to determine the title of a party rather it is a document showing the possession of the respondent/plaintiff. this finding is based as per the evidence adduced and the lower appellate court has recorded its satisfaction by assigning cogent reason.18. in the backdrop of the broad features of this case and the discussions made above it is held that no substantial question of law is involved in this appeal warranting any interference by this court consequently, the judgment and decree of the lower appellate court is hereby affirmed.19. in the result the appeal stands dismissed. (amitav k. gupta, j) jhrkhand high court,ranchi dated:the 26th august, 2016, biswas.
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI ---- Second Appeal No. 13 of 2012 ----- Against the judgment and decree dated 21.01.2012 and 31.01.2012 respectively passed in Eviction Appeal no.05/2009 by the learned District Judge-III,Singhbhum East at Jamshedpur dismissing the judgment and decree dated 25.07.2008 and 08.08.2008 respectively passed in Eviction Suit no.47 of 1997 by the learned Subordinate Judge-VI, Singhbhum East at Jamshedpur. ------ Mohammad Anzar Ahmad, son of late Menazerul Haque, r/o 517, A, Kasidih Shop Area, Straight Mile Road, P.O.P.S. Sakchi, Town Jamshedpur, District-Singhbhum East. .... Appellant. -Versus- 1. Masood Alam, son of late Abdul Rauf, r/o 'Gulistan', 981, Kanke Road, P.O. Kanke, P.S. Gonda, District-Ranchi.

2. State of Jharkhand. ….... Respondents. ------ For the Appellant : M/s. Rajiv Ranjan Tiwari, Advocate. For the Respondents : M/s.Krishna Murari,K.K.Ambastha, Advocates. ----- PRESENT CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA ----- Amitav K. Gupta,J: This second appeal has been preferred against the judgment and decree dated 21.01.2012 and 31.01.2012 respectively whereby the learned District Judge-III, Singhbhum East at Jamshedpur, in Eviction Appeal no.5 of 2009 affirmed the judgment dated 25.07.2008 passed by the learned Subordinate Judge-VI of Singhbhum East, Jamshedpur in Eviction Suit no.47 of 1997 decreeing the suit in favour of the plaintiff/respondent.

2. The second appeal was admitted for hearing on formulation of the following substantial question of law:- “ Whether the learned courts below have committed serious error in framing the issue and deciding the question of title over the suit property in a suit for eviction?”

3. The plaintiff, i.e. the respondent in this appeal, had instituted the suit for eviction of the defendant/tenant, the appellant herein, on the ground of default in payment of rent from February, 1994 to March, 1997. The plaintiff's case is that he is the owner of the suit premises comprising of a single storied building situated on 2 holding no.517-A, Kasidih at Jamshedpur. The suit property was allotted to Abdul Rauf, the plaintiff's father who died in the year 1971 and the other legal heirs of Abdul Rauf, by a registered deed, relinquished their rights in the suit property in favour of the plaintiff. The defendant was inducted as a tenant with respect to one shop room in the said building by the plaintiff's father on monthly rent as per English calendar. The rent was to be paid at the end of the month and the plaintiff used to grant rent receipts against the monthly rent paid by the defendant, but, after February 1994 in violation of the terms of the tenancy, the defendant stopped paying rent and defaulted in payment of rent from February, 1994 to March 1997. On the above grounds the suit was filed for eviction of the defendant/appellant as he defaulted in payment of the rent for two months. The plaintiff also claimed arrears of rent from April, 1994 till the date of the filing of the suit.

4. The defendant contested the suit and in his written statement he asserted that the suit property was a Wakf property, thus the plaintiff did not have any title over the suit property nor was he the owner of the suit property. The defendant's case is that a vacant piece of land was given on rent initially by the Mutwali of Safdar Ali Wakf Estate, on a monthly rent of Rs.100/- which was subsequently enhanced to Rs.500/- per month in 1993. That the defendant had constructed a room at his own cost over the vacant land. The defendant stated that the plaintiff used to realise the rent from the defendant through the agent who used to grant him kachcha receipts on the assurance that pacca receipts would be made available later. The defendant used to pay the rent as and when demanded and denied that he had defaulted in payment of rent and in fact he has been paying the rent regularly to the plaintiff's agent from February, 1994 to March, 1997 and they granted the rent receipts, hence he is not liable to pay the arrears of rent from April, 1994 to March,1997.

5. On the pleadings of the parties, the trial court framed 5 issues which are as follows:- “I. Is the suit framed maintainable and has the plaintiff a valid cause of action? II. Is there a relationship of landlord and tenant between the plaintiff and defendant? III. Whether the defendant is a defaulter in payment of rent and liable to be evicted from the suit premises and also liable for payment of arrears of rent? 3 IV. Whether the suit land is a Wakf property and the suit is hit by the provision of Section 32 of the Bihar Buildings(Lease,Rent and Eviction)Control Act? V. To what other relief/reliefs plaintiff is entitled to?”

6. During the trial the plaintiff/respondent filed an application under Section 15 of the Bihar Buildings(Lease, Rent and Eviction) Control Act(hereinafter to be referred as the Act.) for directing the defendant to deposit the arrears of rent and to pay the current rent which was allowed by the trial court. Despite the opportunity given to the defendant, the arrears of rent and the current rent was not deposited or paid by the defendant/appellant whereupon by order dated 19.04.2002, the trial court struck off the defence of the defendant. The plaintiff led his evidence and the trial court decreed the suit in favour of the respondent/plaintiff.

7. Being aggrieved by the judgment of the trial court, the defendant preferred Eviction Appeal no.5 of 2009 before the District Judge-III. The lower appellate court on the arguments advanced by the parties framed the following points for determination:- 1. Whether the respondent has got title over the suit property and thus is the owner of the suit premises.

2. Whether the appellant has defaulted in payment of rent from February, 1994 to March, 1997.

8. The lower appellate court, after thorough discussion of the facts and on scrutiny and analysis of the evidence on record, held that there was a relationship of landlord and tenant and the respondent/plaintiff was the owner of the suit property. It held that the appellant/defendant has defaulted payment of the rent and is liable to be evicted from the suit premises, thereby affirming the judgment and decree of the trial court. In view of the concurrent findings of the trial and the lower appellate court, the second appeal has been preferred and admitted for hearing on the substantial question of law as mentioned in para 2 here-in-above. 4 9. Learned counsel for the appellant, while assailing the concurrent findings of the court below, has contended that the court below has committed an error in law by precluding or denying the appellant/defendant the right to cross-examine the plaintiff and his witnesses, regarding the title of the plaintiff/respondent over the suit property because the appellant/defendant had denied the title of the plaintiff/respondent over the suit property and pleaded that a vacant piece was given on rent to the defendant/appellant. It is argued that under Section 15 of the Act only defence as against the ejectment from the suit property is struck off and since the suit was filed with respect to recovery of arrears hence the defendant was entitled to cross-examine the witnesses as he had asserted in the written statement that he had paid the rent and was not a defaulter. It is contended that even when the defence was struck off then the plaintiff had to establish his case on the basis of the evidence adduced by him and the courts below have committed an error in law by looking into and considering the averments made in the written statement of the defendant/appellant. It is argued that the plaintiff has not led any evidence to establish the fact that he had the title or was the owner of the property or the defendant/appellant was a defaulter for non-payment of the rent from February 1994 onwards till the filing of the suit.

10. In support of his contention learned counsel for the appellant/defendant has relied on the following decisions:- I. Mahabir Ram vs. Shiv Shankar Prasad, 1968 PLJR76 II. Modula India vs. Kamakhya Singh Dev, 1989 AIR (SC) 162. III. Gopal Krishna G. Ketkar vs. Mohd. Haji Latif and ors., 1968 AIR (SC) 1413. IV. Bogidhola Tea and Trading Company Ltd. vs. Hiralal Somani, 2008 AIR911 1992(2) PLJR195 11. Per contra, learned counsel for the respondent has supported the impugned judgments of the lower courts and contended that similar arguments were advanced by the 5 appellant/defendant before the lower appellate court, which has considered the same and on appreciation of the evidence and the provisions of law, has passed a reasoned order affirming the decree and judgment of the trial court. It is argued that when the trial court had struck off the defence of the defendant/appellant by order dated 19.04.2002, at that point of time, the appellant/defendant had filed petitions and sought adjournment on several dates, for more than a year, on the ground that he intended to challenge the order dated 19.04.2002 by invoking the revisional jurisdiction of the higher court. It is urged that on the prayer of the defendant/appellant the trial court had adjourned the case on several dates granting time to the defendant/appellant to bring appropriate order from the High Court. Despite the latitude shown by the trial court the defendant/appellant failed to challenge the order for one and a half years whereupon, the trial court proceeded with the trial. The plaintiff as well as his witnesses were examined and on appreciation of the evidence the suit was decreed in favour of the plaintiff. In course of hearing of this appeal learned counsel for the appellant has brought on record the photocopy of the petition filed under Section 17 of the Jharkhand Buildings(Lease,Rent & Eviction) Control Act,2011 in H.R.C. Case no.13 of 2013, by the defendant/appellant against the respondent/plaintiff wherein the defendant/appellant was the petitioner and the respondent/plaintiff was arrayed as O.P. and the appellant/defendant has admitted that he is a monthly tenant of the plaintiff/respondent and had prayed that the Controller be pleased to direct the plaintiff/respondent to restore the electric connection of the suit premises.

12. Learned counsel has referred to various decisions rendered in second appeal of this court which were preferred by this appellant and other tenants against the judgment and decree of the lower courts in the suit filed by the plaintiff/respondent against other tenants of the same suit property. That the Second Appeal Nos.54 of 2012 and 96 of 2012 preferred by this appellant along with other tenants were dismissed by the learned Single Judge whereafter the defendant/appellant along with the others had filed Special 6 Leave to Appeal(Civil) NO.466/2016 which was dismissed by the Supreme Court with observation that there was no merit in the appeal.

13. Heard. At this juncture the learned counsel for the plaintiff/respondent has not controverted or denied either the submission or the copy of the judgment in S.L.P.NO.466/2016 neither the photocopy of the petition filed by the defendant/appellant under Section 17 before the House Rent Controller. It is not denied that he was one of the appellants in S.A.54/2012 which was preferred by him along with other appellants, who were tenants of the shops situated in the same suit premises, against the decree granted in favour of the respondent/plaintiff in the said eviction suit.

14. The arguments and the decisions relied upon by the learned counsel for the appellant that even in case where the defence has been struck off as against ejectment, the defendant has the right to cross-examine the plaintiff when the defendant has challenged the title, is no more res integra, in view of the settled proposition of law and the decisions cited by the learned counsel for the appellant. However, the contention of the counsel for the appellant that the court below should not have looked into or considered the averments made in the written statement of the appellant/defendant since the defence was struck off in terms of Section 15 and the trial court should have passed the judgment and order on the basis of the evidence led by the plaintiff though not disputed but, in my considered opinion only the defence against ejectment is struck off and not the admissions made in the written statement. Section 17 of Evidence Act,1872, defines admission which may be oral or written or by signs or silence or conduct, etc and Section 18 enumerates the circumstances in which such admission can be considered. It is well settled that admission in pleadings or judicial admission stands on a higher footing and is binding on the maker. Section 56 of the Evidence Act stipulates that no fact of which the court will take judicial notice needs to be proved. The courts below have considered the pleadings in the written statement because the defendant/appellant, while denying the title and ownership of the respondent/plaintiff over 7 the property, has at the same time, pleaded and admitted that he was paying rent regularly to the plaintiff's agent who used to grant him kachcha rent receipts and assured him that pacca(original) receipts would be provided later on. As noticed above, the defendant/appellant has not denied that he was one of the appellants in S.A.NO.54/2012 which was preferred against the judgment and decree passed in favour of the plaintiff/respondent in Eviction Suit no.5 of 1997 by the court of Sub-Judge-VI, Jamshedpur against the defendant/appellant and other tenants of the shops in the same suit premises. It is not denied by the appellant/defendant that during the pendency of this Second Appeal he had filed a petition under Section 17 of the J.B.C. Act, 2011 in H.R.C. Case No.33 of 2013 in the court of House Rent Controller, Dalbhum at Jamshedpur. Thus in terms of Section 18 read with Section 56 of the Indian Evidence Act, the admissions can be looked into to determine whether the defendant/appellant was genuinely challenging the ownership and title of the plaintiff or it was merely a pretence to linger the litigation and trial.

15. The appellant/defendant has not denied the fact that the he had sought adjournments on the ground that he intended to challenge the order passed under Section 15(1) of the B.B.C Act, 1982 and the trial court had shown indulgence and leniency in adjourning the proceeding by granting liberty to the appellant/defendant to bring appropriate order of the higher court but the appellant/defendant, for reasons best known to him, did not take steps to challenge the said order. The trial lingered and was delayed due to the lackadaisical approach of the appellant. It is settled principle that delay defeats equity and in the light of the discussions made here-in-above it is evident that the appellant/defendant has not come with clean hands and his conduct is not above board.

16. It is settled proposition of law that under Section 96, the first appellate court is the last court of facts and under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the findings of facts unless and until it is found to be perverse. Section 100 is hedged in with restrictions and even if the finding of facts is erroneous, it should not be disturbed until or unless it is vitiated or based on assumptions 8 and conjectures or have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant or inadmissible material. These are the enunciated principles settled in plethora of decisions by the Supreme Court. In the instant case, the concurrent findings arrived at by the courts below are based on thorough discussion of the provisions of law and the evidence on record and is not vitiated by any capriciousness to come under the shadow of perversity. Consequently, the argument of the learned counsel for the appellant is unacceptable and responded to accordingly. At this juncture it is to be observed that the learned counsel has not addressed this court or argued on the substantial question of law formulated for hearing of the Second Appeal.

17. The substantial question of law so framed does not arise in the present case as it is settled legal position that when the title of the landlord is challenged by the person in an eviction suit on the ground that he was not a tenant and the landlord does not have the title or is the owner of the building, then the court can look into the question of title incidentally to arrive at the finding that there exists a relationship of landlord and tenant between the plaintiff and defendant and the suit was maintainable under the Act and the plaintiff was entitled to the reliefs as prayed for. The law is also settled in terms of Section 116 of the Indian Evidence Act that a tenant is estopped from challenging the title of the landlord. In the facts of the present case, the appellant/defendant has admitted the fact that he is a tenant and that he used to remit rent to the agent of the plaintiff/respondent, hence he is estopped from challenging the title of the landlord/respondent. Therefore, in view of the settled legal position and on perusal of the judgment of the lower appellate court it ex facie discloses that the lower appellate court has appreciated the enunciated principles and considered the evidence adduced by the plaintiff by appreciating the documentary evidence, i.e., Exhibit 1, the mutation order whereby the possession of the plaintiff/respondent over the suit property was found and it has rightly held that the respondent/plaintiff was the owner of the 9 suit premises and there was relationship of landlord and tenant between the respondent/plaintiff and the defendant/appellant. It is well settled that mutation order is not a document or instrument to determine the title of a party rather it is a document showing the possession of the respondent/plaintiff. This finding is based as per the evidence adduced and the lower appellate court has recorded its satisfaction by assigning cogent reason.

18. In the backdrop of the broad features of this case and the discussions made above it is held that no substantial question of law is involved in this appeal warranting any interference by this Court consequently, the judgment and decree of the lower appellate court is hereby affirmed.

19. In the result the appeal stands dismissed. (Amitav K. Gupta, J) Jhrkhand High Court,Ranchi Dated:the 26th August, 2016, Biswas.