D.G.R.PATNAIK, J. - (1.) APPELLANT has preferred this appeal against the judgment of the lower appellate Court, whereby the judgment and decree passed by the trial Court in eviction suit No. 61 of 2004 has been confirmed in favour of the respondent/plaintiff and against the appellant/defendant. I.A. No. 464 of 2008 has been filed by the appellant praying for stay of the execution case vide Execution Case No. 11 of 2007 pending in the Court of Munsif Magistrate, Jamshedpur.
(2.) COUNSEL for the appellant explains that the suit was filed by the respondent/plaintiff for eviction of the appellant/defendant from the residential quarter on the ground that the quarter was let out to the defendant on the monthly rent and that the defendant had defaulted in payment of the monthly rent. The trial Court recorded its findings in favour of the plaintiff by observing that relationship of landlord and tenant between the plaintiff and the defendant was established and that, the defendant had defaulted in payment of the monthly rent for more than two months. The lower appellate Court while passing its impugned judgment has confirmed the findings of the trial Court on the above issue and has confirmed the judgment and decree, as passed by the trial Court against the appellant/defendant. Raising questions of law, learned Counsel would argue that according to the admitted facts, the suit premises being a residential quarter, belongs to M/s. Tinplate Company Ltd., which was originally allotted to the appellant/defendant by virtue of his being employed under the company. Later, the appellant took voluntary retirement from the company and he surrendered the quarter to the company on his retirement. Thereafter, the said quarter was allotted to the plaintiff by the company on the basis of certain points, which the plaintiff had earned by virtue of his length of service together with the points, which the plaintiff had earned during the tenure of his employment. It is also admitted that the plaintiff and the defendant were known acquaintances belonging to the same community and on the request of the defendant, the plaintiff had allowed the defendant to occupy and use the suit premises and for such use, the defendant had agreed to pay a sum of Rs. 500/ - per month towards electricity and other charges. The plaintiff later on refused to accept the monthly payments. Thereafter, sensing dubious intention of the plaintiff, the defendant had filed the suit for injunction against the plaintiff seeking an order against the plaintiff restraining him from forcibly evicting the defendant from the suit premises. Notwithstanding the dismissal of the said suit, defendant continued to remain in occupation and possession of the suit premises. Later on, the plaintiff filed the suit for eviction. Learned counsel argues that both the trial Court as well as the lower appellate Court have committed serious error in recording their findings that the relationship of landlord and tenant does exist between the parties and that, provisions of Bihar Building Control Act, under which suit for eviction was filed, was applicable. Learned counsel would explain that the relevant document constituting agreement between the plaintiff and the defendant amply indicates that no relation of landlord and defendant was at all created between the parties. Rather, the plaintiff had merely given licence to the defendant to occupy and use the premises against the payment of monthly amount of Rs. 500/ - towards electricity and other charges and not towards rent since the term did not stipulate the payment of any rent whatsoever. Learned counsel argues further that though, on proper interpretation of the terms of agreement, which the trial Court and the lower Appellate Court have apparently failed to make, there appears no relationship of landlord and tenant between the parties and therefore, the provisions of Bihar Building Control Act did not call for application at all. According to the learned Counsel, findings of the both the Courts below on this issue is totally perverse and against the weight of evidences on record and this being the substantial question of law, this appeal should be admitted and prayer for stay of the execution proceeding should be allowed. Learned counsel in support of her argument, refers to judgment of the Supreme Court in the case of Konchanda Ramamurty Subundhi (dead) by his legal representatives v. Gopinath Naik and Ors. reported in : [1967]2SCR559 . Learned counsel argues further that both the trial Court as well as the lower appellate Court have committed serious error in embarking upon the deciding the issue of title of the plaintiff, which is also certainly beyond the scope of the Courts exercising jurisdiction under the Buildings Act and this, therefore, would also constitute a substantial question of law for admitting this appeal.
(3.) RESPONDENT has appeared in this case and has filed his counter -affidavit. It is contended by the learned Counsel for the respondent that the grounds advanced by the appellant are totally misconceived and as a matter of fact, the findings of the trial Court as well as the lower appellate Court are based entirely on the evidences adduced by the plaintiff. The defendant has failed to controvert the oral evidence which remained intact and constituted the basis for findings recorded by the trial Court on each of the issues. Learned counsel explains further that admittedly, the suit premises is a quarter of which M/s. Tinplate Company Ltd. is the superior landlord, but admittedly, the quarter was allotted to the plaintiff by the company, who in turn, sublet the premises to the defendant on the understanding that the defendant would occupy the premises for the period of five years and on the condition that he would pay a sum of Rs. 500/ - per month towards electricity and other charges. Learned counsel explains further that as per the terms of the agreement, which was reduced to writing, the occupation of the suit premises of the defendant was by way of special understanding with the plaintiff and against the payment of Rs. 500/ - per month which was essentially the rent for the premises, though denoted as payment towards electricity and other charges. Nevertheless, the fact that amount was by way of monthly rent has been admitted by the defendant himself in the earlier suit filed by him wherein he had admitted categorically that the defendant in title suit, who happens to be the plaintiff/respondent in this case, is the landlord and that the sum of Rs. 500/ - per month used to be paid by the defendant to the plaintiff by way of monthly rent and that, since the date of occupation, defendant used to pay the monthly rent regularly to the plaintiff till June 2001, whereafter, the plaintiff refused to accept the monthly rent from the month of July 2001 and had even refused to accept the payment which was remitted by the defendant by postal money order. By referring to the relevant portions of the impugned order of the lower appellate Court, as also that of the trial Court, learned Counsel argues that the findings arrived at by both the Courts below do declare there exists a relationship of the landlord and tenant between the plaintiff and the defendant and that, default in payment of monthly rent is based upon the evidences on record and thus, the findings which have been recorded by the trial Court and confirmed by the lower appellate Court, do not indicate that there is any' substantial question of law involved in this appeal.;