IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.456 of 2008 Moin Ahmad @ Md. Moin Ahmad s/o late Md Abdul Rauf, resident of Mohalla Dilawarpur P.S. Kotwali Pergana Munger Sub Registry P.O. and District. Munger Plaintiff- Appellant- Appellant Versus 1. Bibi Sazada w/o late Hassan Ahmad 2. Gulzar Hassan 3. Sabbeer Hassan both sons of late Hassan Ahmad resident of Mohalla Dilawarpur P.S. Kotwali Pergana Munger Sub Registry P.O. and District. Munger Defendants-Respondents- Respondents Ist set 4(a) Dr. Md Akram Rizwi 4(b) Dr. Shamim Akhtar 4(d) Dr. Md Mukhtar 4(e) Md Sikku @ Md Piky @ Md. Binu All sons of late Dr. Md Gulam Quadir 4(f) Bibi Noorani 4(g) Bibi Mahrani 4(h) Bibi Mahta 4(i) Bibi Bahurani 4(j) Bibi Glrani All daughters of late Dr Md Gulam Quadir resident of Village Nath Nagar P.O. and P.S. Nath Nagar District. Bhagalpur Defendants-Respondents- Respondents 2nd set ----------- For the appellant: Mr Pravin Chandra Prasad, Advocate ----------- 05/ 05.04.2010 Heard learned counsel for the appellant. 2. This second appeal has been filed by the plaintiff- appellant-appellant challenging the judgments and decree of both the courts below. 3. The matter arises out of Eviction Suit no.40 of 1981 which was filed by the plaintiff for eviction of defendants from the suit premises, arrear of rent and cost of the suit. However, subsequently by amendment a further relief was added for declaration that sale deed dated 25.07.1951 was forged, fabricated and ab-initio void and had not been 2 executed by Naimullah. The said suit was dismissed on contest by Additional Munsif IV, Munger vide his judgment and decree dated 18.11.1995. 4. Against the aforesaid judgment and decree of the trial court, the plaintiff-appellant filed Eviction Appeal no.1 of 1996 which was also dismissed on contest by Additional District Judge-cum- Fast Track Court No. I, Munger vide his judgment and decree dated 18.09.2008.Against the aforesaid judgments and decree of the courts below instant second appeal has been filed. 5. Although learned counsel for the appellant vehemently challenges the aforesaid judgments and decree of the courts below but it is quite apparent from the materials on record including the impugned judgments and decree that the courts below after considering the entire pleadings and evidence of the parties, came to specific findings that the plaintiff had failed to prove relationship of landlord and tenant between the parties. Furthermore, when there was no relationship of landlord and tenant between the parties, there was no question of any default in payment of rent or any subletting by defendants or even personal necessity of the plaintiff with respect to the suit property. In the said circumstances this court does not find any reason to interfere with the aforesaid concurrent findings of facts of both the courts below on the said issues in the instant second appeal under section 100 of the Code of Civil Procedure. 6. It further transpires that the plaintiff had sought to rake up question of sale, gift and Will with respect to the right and title of parties but in a suit for eviction such question can not be gone in detail rather they 3 have to be considered only incidentally. Thus the findings given by the courts below with regard to genuiness or otherwise of the alleged sale, gift and Will as well as right and title of parties are not final rather they are only incidental and hence the said issues can be decided fully and finally only in a properly instituted civil suit before a civil court of proper jurisdiction. 7. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the courts below, nor does it find any substantial question of law 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. 8. However, this dismissal will not affect the merit or otherwise of a title suit if filed by the plaintiff with respect to his right, title and interest which has to be considered independently on its own merit by a court of proper jurisdiction. (S.N.Hussain,J) shahid