IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2098 OF 2000

Bibi Zafira Khatoon and others … Appellants

Versus

Mohammed Hussain  and another … Respondents

J  U  D  G  M  E  N  T

G.S. Singhvi,  J.

1. This is an appeal for setting aside order dated 31.7.1998 passed by the  

learned Single Judge of Patna High Court whereby he dismissed the civil  

revision preferred by the appellants against dismissal of the application filed  

by them for execution of the decree of eviction.

2. Appellant  No.1,  Bibi  Zafira  Khatoon  and  her  husband  Syed  

Mohammed Jalaluddin (since deceased) filed suit for eviction of respondent  

No.2,  Mohammed  Manzurool  Haque  from  a  portion  of  their  residential

house situated at Motihari on the grounds of personal and bonafide necessity  

and default in payment of rent.  In the plaint, it was averred that appellant  

No.1 and her husband were influenced by the claim of respondent No.2 that  

he  possessed  spiritual  powers  and  will  bring  peace  in  their  family  and,  

therefore, allowed him to occupy a portion of the house at a monthly rent of  

Rs.190/-.  It was further averred that Syed Mohammed Jalaluddin was going  

to retire from service very soon and he was desirous of living in his own  

house.  The ground of default was elaborated by stating that respondent No.2  

did not pay rent for the period from January, 1981 to December, 1983.  In  

the  written  statement  filed  by  him,  respondent  No.2  denied  the  very  

existence  of  the  landlord-tenant  relationship  between  the  parties.   He  

claimed that he never occupied the house belonging to appellant No.1 and  

her husband or any portion thereof as a tenant.   While admitting that he  

possessed spiritual power, respondent No.2 pleaded that appellant No.1 and  

her husband sought his blessings and they were immensely benefited by his  

association.  According to respondent No.2, appellant No.1 and her husband  

felt that their house was haunted by evil spirits who killed their two sons and  

requested him with folded hands to use his spiritual power to drive away the  

evil spirits and, therefore, he agreed to occupy one room in the year 1978.  

Respondent No.2 further pleaded that Syed Mohammed Jalaluddin requested  

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him to find out some purchaser and after some talks, the sale of house was  

finalized with respondent No.1, Mohammed Hussain.  Thereafter, agreement  

(mahadanama)  dated 9.1.1982 was executed  between appellant  No.1,  her  

husband and respondent  No.1 and the latter  was  given possession of  the  

house. Respondent No.2 also made a mention of the suit filed by respondent  

No.1 for specific performance of the agreement for sale.  Respondent No.1,  

who had already filed Title Suit No.76/1983 (renumbered as 196/1987) for  

specific performance of the agreement, got himself impleaded as intervenor  

defendant in the eviction suit and filed written statement supporting the case  

set up by respondent No.2.   

3. The title suit filed by respondent No.1 and the eviction suit filed by  

appellant No.1 and her husband were clubbed because the subject matter of  

both the suits was common.  On the pleadings of the parties, the trial Court  

framed 12 issues, including the following:

3. Whether the alleged Mahadanama dated 9.1.1982 valid, legal  

and admissible document and can be basis of any suit?

5. Whether plaintiff of T.S. No.76/1983 was put in possession of  

the suit house by defendant Syed Md. Jalaluddin?

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6. Whether the alleged Mahadanama is enforceable in law and the  

plaintiff  is  entitled  to  a  decree  for  specific  performance  of  

contract?

4. After detailed analysis of the pleadings of the parties and the evidence  

produced by them, the trial Court dismissed the suit for specific performance  

of the agreement for sale and decreed the one filed for eviction of respondent  

No.2.  The trial Court held that the so-called agreement (mahadanama) dated  

9.1.1982 is not a legally admissible document and the same cannot be made  

basis for passing a decree for specific performance.  The trial Court further  

held that the plaintiff of Title Suit No.76/1983 was not put in possession of  

the suit house by Syed Mohammed Jalaluddin.  In the eviction suit, the trial  

Court  returned  the  finding  that  respondent  No.2  was  tenant  in  the  suit  

premises and the same was required by the landlords for their personal and  

bonafide need.  Appeal preferred by respondent No.2 against the decree of  

eviction was dismissed by the 4th Additional District Judge, Motihari, who  

confirmed the finding recorded by the trial Court that need of the landlords  

was  bonafide.   The  appellate  judgment  became final  because  respondent  

No.2 did not challenge the same by filing second appeal.

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5. After  dismissal  of  the  appeal  filed by  respondent  No.2 against  the  

decree of eviction, the appellants filed an application for execution thereof  

impleading the respondents herein as parties.  On notice, respondent No.1  

filed objection petition under Section 47 read with Section 151 of the Civil  

Procedure Code.  He pleaded that decree cannot be executed against him  

because the trial Court had ordered eviction of respondent No.2 only and  

also because First Appeal No.33/1989 filed by him against the judgment and  

decree of the trial Court in the suit for specific performance was pending  

before the High Court.

6. By an order dated 28th November, 1997, the Executing Court allowed  

the objection petition and dismissed the execution application by observing  

that the decree of eviction was passed only against respondent No.2 and not  

against the objector.  The Executing Court referred to the evidence produced  

by  the  parties  and  held  that  the  judgment-debtor  left  the  room and  the  

applicant is residing in the suit house along with his family.  Civil Revision  

No.395/1998 filed by the appellants was dismissed by the High Court by  

observing that even though Section 12 of the Bihar Building (Lease, Rent  

and Eviction) Control Act, 1982 [for short, “the Act”] has overriding effect  

qua the provisions of other enactments, the same cannot be invoked against  

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a person who is not a tenant within the meaning of Section 2(h) of the Act.  

The High Court  noted that  as  per  respondent No.1,  he was living in the  

house in his own right, i.e., on the basis of the agreement for sale and that  

the appeal filed by him against dismissal of the title suit was pending and  

held that during pendency of the appeal filed against dismissal of the suit for  

specific performance of the agreement for sale, respondent No.1 cannot be  

treated as a tenant of the suit premises.   

7. Shri Ranjan Mukherjee, learned counsel for the appellants pointed out  

that First Appeal No. 33/1989 filed by respondent No.1 against the decree  

passed by the trial Court in the title suit was dismissed by the High Court  

vide  its  judgment  dated  18.5.2007  and  Special  Leave  Petition  (C)  No.  

6471/2008 filed by him was dismissed by this Court on 12th August, 2009.  

He then argued that in view of the non obstante clause contained in Section  

12 of  the Act,  the  Executing Court  was duty bound to  order  eviction of  

respondent No.1 because the title suit filed by him was dismissed and he was  

never  inducted  as  a  tenant  in  the  suit  premises  with  the  express  written  

permission of the landlords.   

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8. Shri H.L. Agarwal, learned senior counsel appearing for respondent  

No.1 submitted that the trial Court and High Court rightly refused to order  

eviction of his client because the decree was passed only against respondent  

No.2.  Learned counsel further submitted that even though in the suit for  

specific  performance of agreement for sale filed by respondent No.1, the  

trial  Court recorded a finding that he was not put in possession by Syed  

Mohammed Jalaluddin (husband of appellant No.1) and the said finding was  

confirmed by the High Court, he cannot be evicted from the suit premises by  

invoking Section 12 of the Act because he does not fall within the definition  

of the term “tenant”.

9. We  have  thoughtfully  considered  the  respective  submissions  and  

carefully scrutinized the records.  Undisputedly,  the judgment and decree  

passed  by  the  trial  Court  in  Title  Suit  No.  76/1983  have  become  final  

because the first appeal and special leave petition filed by respondent No.1  

have been dismissed by the High Court and this Court, respectively.  While  

dealing with issue No.5, which has been reproduced in the earlier part of this  

order,  the  trial  Court  took  cognizance  of  the  pleadings  and  evidence  

produced by the parties and held:   

“Mere execution of an agreement for sale does not confer title  and  possession  without  title  cannot  be  treated  as  legal  

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possession in the eye of law.  The plaintiff has not established  the permission of defendant no.1 to possess the suit land and,  therefore,  possession of the plaintiff  cannot be maintained as  permissive possession.”    

10. In the appeal preferred by respondent No.1, the High Court framed as  

many as seven questions including the following:  

“Whether the defendants had ever handed over possession of  the  suit  premises  to  the  plaintiff  as  part  performance  of  the  contract.”   

11. The High Court answered the aforementioned question in negative by  

recording the following observations:

“26. The claim of the plaintiff is that he was put in possession  of the suit premises by defendant No.1 in part performance of  the  agreement  for  sale.   Although  some  witnesses  of  the  plaintiff stated that they had seen him in possession of the suit  premises.  But only P.W. 3 and P.W. 5 apart from P.W. 7 the  plaintiff  himself,  stated  that  defendant  No.1  handed  over  possession  of  the  suit  premises  to  the  plaintiff  as  part  performance of the agreement for sale.  Whereas on the other  hand  several  witnesses  of  the  defendants  stated  that  the  defendants  had  throughout  been  in  possession  of  the  suit  premises and the plaintiff never came in possession thereof but  out  of  them D.Ws.  3,  5  and 6,  apart  from D.W.9 defendant  No.1,  specifically  stated  that  the  plaintiff  was  never  put  in  possession  of  the  suit  premises  by  the  defendants  as  part  performance of the agreement for sale.

27. So far the question of onus is concerned, it was squarely  upon the plaintiff to prove that he was put in possession of the  suit  premises  by  the  defendants  as  part  performance  of  the  

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agreement for sale.  But he miserably failed to support his claim  by any valid evidence whatsoever.  Even in the alleged written  agreement for sale produced by the plaintiff as Ext.4 as well as  in  the  receipt  of  Rs.17,000/-  executed  by  defendant  No.1  produced by the plaintiff as Ext. 3 no statement is made that the  plaintiff was ever put in possession of the suit premises by the  defendants either in part performance of the agreement for sale  or  otherwise.   Furthermore  after  proper  evaluation  of  the  evidence,  both  oral  and  documentary,  adduced  by  both  the  parties, the learned trial court has rightly reflected the claim of  the plaintiff as he miserably failed to prove that he was ever put  in possession of the suit premises by the defendants.”

12. We shall  now consider whether Section 12 of the Act should have  

been invoked by the Executing Court for ordering eviction of respondent  

No.1 from the suit premises.  That section reads as under:  

“12. Binding nature of the order of the Court on all persons  in  occupation  of  the  building  –  Notwithstanding  anything  contained in any other law, where the interest of tenant, in any  premises  is  determined  for  any  reason,  whatsoever,  and  any  order is made by the Court under this Act, for the recovery of  possession of such premises, the order shall be binding on all  persons who may be in occupation of the premises and vacant  possession thereof shall be given to the landlord by evicting all  such persons therefrom:

Provided that nothing in this section shall apply to any person  who has an independent title to such a premises or to tenant  who has been inducted with the express written permission of  the landlord himself personally.”

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13. By  enacting  the  above  reproduced  provision,  the  legislature  has  

ensured that an order made by the court for recovery of possession should be  

executed in a wholesome manner and the landlord should not be compelled  

to  enter  into  further  prolonged  litigation  for  the  purpose  of  getting  

possession of the suit premises simply because the tenant may have, without  

the knowledge or permission of the landlord, inducted some other person in  

the tenanted premises.  This is the reason why Section 12 begins with a non  

obstante clause and lays that where the interest of tenant is determined and  

an order is made by the court for recovery of possession of the premises,  

such order shall be binding on all persons, who may be in occupation of the  

premises, and vacant possession thereof shall  be given to the landlord by  

evicting all such persons therefrom.  The use of the words “all persons” in  

the substantive part of Section 12 signifies the legislative intendment that the  

order  passed by the  court  for  the recovery  of  possession of  the  tenanted  

premises  should  bind  everyone  who  may  be  occupying  the  premises  

irrespective of his status.  To put it differently, Section 12 seeks to ensure  

delivery of vacant possession of the premises to the landlord by evicting not  

only the tenant but any other person who may be occupying the premises.  

The proviso to Section 12 protects the person who has independent title to  

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such premises or the tenant who has been inducted with the express written  

permission of the landlord himself personally.   

14. If the case in hand is examined in the light of the plain language of  

Section 12 and keeping in view the fact  that  while  deciding the  suit  for  

specific performance filed by respondent No.1, the trial Court recorded an  

unequivocal  finding  that  Syed  Mohammed  Jalaluddin  had  not  put  

respondent No.1 in possession of the suit premises and the said finding has  

been confirmed by the High Court, his continued occupation thereof has to  

be treated as unauthorized and Section 12 of the Act is clearly attracted in  

his case.  Respondent No.1 cannot take benefit of first part of the proviso to  

Section 12 because the suit for specific performance of the agreement for  

sale  filed  by  him was  dismissed  by  the  trial  Court  and challenge  to  the  

judgment and decree of the trial Court has been negatived by the High Court  

and this Court.   Respondent No.1 cannot take advantage of second part of  

the  proviso  to  Section 12 because  it  is  neither  his  pleaded case  nor  any  

evidence was produced before the trial Court to show that he was inducted  

as a tenant in the suit premises with express permission of the landlords, i.e.,  

appellant No.1 and her husband.   

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15. In view of the above discussion,  we hold that the Executing Court  

committed an error  by refusing to execute  the decree of  eviction against  

respondent No.1 and the view taken by the High Court on the applicability  

of  Section  12  of  the  Act  qua  respondent  No.1  is  clearly  flawed  and  

untenable.   As a  corollary  to  this  conclusion,  the  appeal  is  allowed,  the  

impugned  order  is  set  aside  and  the  execution  application  filed  by  the  

appellants is allowed.  Respondent No.1 and his family members who are  

occupying the suit premises are allowed three months’ time to vacate the  

same and hand over physical  possession thereof to the appellants  herein.  

This will be subject to the condition of filing of usual undertaking within  

four weeks from today.

……………………….J. [ Tarun Chatterjee ]

……………………….J. [ G.S. Singhvi ]

……………………….J. [ R.M. Lodha ]

New Delhi September 17, 2009.

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