IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.27 of 2008 Kiran Prasad Gupta, Son of Late Badri Sao, resident of Mohalla- North Mandiri, P.S. Budha Colony, District-Patna. .....Defendant-Appellant-Appellant. -Versus- Gauri Shankar Prasad @ Munna, Son of Late Nand Kishore Prasad, New Yarpur, Kabartoli, P.S. Gardanibagh, District- Patna, at present Mohalla- North Mandiri, P.S.Budha Colony, District-Patna. ......Plaintiff- Respondent-Respondent. ---------- For the Appellant: Mr. S.S.Dwvedi, Sr. Advocate, Anjani Kr. Sinha and Jyoti Shankar, Advocates. For the Respondent:M/S. Ajit Kumar and Neeraj Kumar, Advocates. ------- 13 6.10.2009 Heard learned counsel for the appellant and learned counsel for the respondent. 2. This second appeal has been filed by sole defendant- appellant-appellant challenging the judgments and decree of both the courts below. 3. This matter arises out of Eviction Suit No. 16 of 1999, which was filed by the sole plaintiff-respondent for declaration that agreement dated 12.3.1998, power of attorney dated 5.5.1998 and sale deed dated 14.5.1998 were forged, fabricated and were not binding upon the plaintiff and also for a decree of eviction of the defendant-appellant on the ground of bonafide personal necessity of the plaintiff as well as on the ground of default in payment of rent by the defendant and also for recovery of arrears of rent and other ancillary reliefs. 4. The said suit was contested by the defendant whereafter following issues were framed by the learned trial court:- I. Is the suit as framed maintainable? II. Has the plaintiff got valid cause of action for the 2 suit? III. Is the suit under valued and court fee paid insufficient? IV. Is the suit bad for principles of estoppels, waiver and acquiescence? V. Is the suit bad for non-joinder of parties? VI. Whether there is any relationship of landlord and tenant between the plaintiff and the defendant? VII. Is the plaintiff entitled to a decree for eviction of defendant from the premises in suit? VIII. Is the plaintiff entitled to a decree for arrears of rent against the defendant? IX. To what other relief or reliefs the plaintiff is entitled to? 5. On the basis of the aforesaid issues, evidences were led by both parties whereafter the learned Munsif IIIrd, Patna, decreed the suit on contest with cost vide its judgment and decree dated 28.6.2005 after arriving at the following findings. (a) Plaintiff has been able to prove the relationship of landlord and tenant between the parties. (b) Defendant has been found residing in the suit premises as a tenant. (c) Defendant has stopped payment of rent of the suit premises to the plaintiff. (d) Plaintiff has got valid cause of action for eviction 3 of the defendant. (e) The suit is not bad for non-joinder of the parties. (f) The suit is not barred by principles of estoppels, waiver and acquiescence. (g) The suit is maintainable. (h) The plaintiff is entitled to the reliefs as claimed for. 6. The aforesaid judgment and decree dated 28.6.2005 passed by the trial court was challenged by defendant in Title Appeal No. 44 of 2005 in which the plaintiff appeared and contested whereafter the learned Additional District and Sessions Judge-VII, Patna, dismissed the said Title Appeal after considering the pleadings and evidences of the parties as well as the provision of law vide its judgment and decree dated 17.12.2007. The aforesaid judgment and decree of the learned courts below are under challenge in the instant Second Appeal. 7. Learned counsel for the defendant- appellant has raised a point that the learned courts below have decided the suit and dealt with evidences without considering the evidence adduced by him and hence the said judgment and decree of the learned courts below are not sustainable in law. 8. From the judgment of the learned trial court, it is quite apparent that at page 7 of its judgment, the learned trial court has enumerated all the oral and documentary evidence of the defendant and while deciding Issue nos. 6, 7 and 9 together, it had specifically dealt with all documentary evidence, namely, the sale deed dated 14.5.1998 4 (Ext. A/1), the Assessment Register of Holding No. 714(Ext. B), certified copy of the mutation order dated 8.9.1999 regarding Holding No. 719/2 in the name of Ashok Kumar Gupta (Ext.C), notice under Section 139 of Patna Municipal Corporation Act dated 9.9.1999(Ext. D) and certified copy of the judgment dated 28.9.1999 passed in Title Eviction No. 288 of 1999 by the learned Subordinate Judge-III, Patna,(Ext. E). 9. It is also apparent from the said paragraphs of the trial court’s judgment that it had considered all the oral evidence in detail out of whom the two main witnesses of the defendant, namely, D.W.1, Baijnath Prasad and D.W.7, the defendant himself, showed that defendant never resided in the premises of Ashok Kumar Gupta, who had purchased it from Kishun Sao. It was found that D.W. 1 was not fully cross-examined because he did not turn up on the next day for his cross examination whereas the defendant as D.W.7 merely reiterated his pleadings. It is also held by the learned court below that the remaining witnesses of the defendant stated in their depositions that defendant is not a tenant of the plaintiff and he is not residing in the plaintiff’s premises rather the defendant is residing in the house of Ashok Kumar Gupta. In the said circumstances, it can not be said that the learned courts below did not consider the evidence of the defendant. Further more, it may be noted that D.W.1 and D.W.7 were the main witnesses of the defendant whereas evidences of D. Ws .2, 3, 4, 5 and 6 were only supportive in nature and did not inspire any confidence as D.W.2 was a Pandit, D.W. 3 was an unconnected person, D.W. 4 was an electrician, 5 D.W.5 was labourer and D.W.6 was a milkman. 10. It may further be noted that the question in issue was as to whether the defendant was residing in a house owned by one Ashok Kumar Gupta and hence such a question of title can not be legally decided merely on such oral evidence specifically in presence of specific documentary evidence of the plaintiff which had been fully dealt with and considered by the learned courts below. The lower appellate court has also considered the said matter in paragraph nos. 5 to 16 of his judgment in which he has specifically found after considering the oral and documentary evidence of both the parties that the plaintiff had been able to show that the suit property was purchased by him by virtue of sale deed (Ext. 5) and he has got his name mutated and receipts were being issued to him by Patna Municipal Corporation as well as the State of Bihar with regard to Holding No. 714. It was also found that defendant was not residing in the premises of Ashok Kumar Gupta, rather he was residing in the premise of the plaintiff which the latter had never sold to Ashok Kumar Gupta. Hence it is clear from the evidence of the parties that there was relationship of landlord and tenant between the parties. 11. The second question raised on behalf of the appellant was that although the learned trial court had formulated issues for deciding the suit but the learned appellate court had not formulated any point for deciding the appeal, although, he was legally bound to frame issues as per the provision of Order XLI rule 31 of the Code of Civil Procedure. In this connection, paragraph no.9 of the lower 6 appellate court’s judgment is very clear as in that paragraph, the learned court of appeal below has held that Issue nos. 6, 7 and 8 of the trial court were essential to be considered while deciding the Title Appeal, and dealt with those issues in detail, hence the judgment of the trial court was duly affirmed by the learned appellate court. Furthermore, the learned court of appeal below went on to consider the said issues on the basis of the pleadings and evidence of the parties and dismissed the Title Appeal after arriving at specific findings that defendant was residing in the suit premises of the plaintiff as his tenant, whereas the purchase made by Ashok Kumar Gupta from Kishun Sao was with respect to some other premises. Hence there being relationship of Landlord and tenant between the parties and defendant being clearly a defaulter, the plaintiff had valid cause of action to sue the defendant for his eviction. .12. In view of the aforesaid findings of the learned courts below, there appears to be no illegality in the impugned judgments and decree and no substantial question of law is involved in the instant second appeal which is, accordingly, dismissed at this stage of hearing under order XLI Rule 11 of the Code of Civil Procedure. U.K. (S.N.Hussain,J)