IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.463 of 2008 Ram Lakhan Sahu S/o Babu Narsingh Sahu, resident of village Basopatti, P.S. Basopatti, District Madhubani. ……Defendant 1st party-Appellant-Appellant. Versus 1. Ram Narayan Sahu S/o Tejmal Sahu, resident of village Basopatti, P.S. Basopatti, District Madhubani. ……….Plaintiff-Respondent 1st party-Respondent 1st party. 2. Dr. Satya Narayan Gupta S/o Kamlu Sahu, resident of village Bhagirathpatti, P.S. Basopatti, District Madhubani. …..Defendant 2nd party-Respondent 2nd party- Respondent 2nd party. For the appellant : Mr. D.K.Sinha, Sr. Advocate. For respondent 1st party : Mr. Krishna Kant Singh, Advocate. ----------- 06/ 11.01.2010 Heard learned counsel for the appellant and learned counsel for respondent 1st party. 2. This second appeal has been filed by defendant 1st party-appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Eviction Suit No.01 of 2004 which was filed by the sole plaintiff-respondent- respondent no.1 for eviction of the defendant-appellant- appellant on the ground of default in payment of rent by the defendants as well as bonafide personal requirement of the plaintiff. The said suit was decreed on contest by the learned Munsif-II, Madhubani vide his judgment and decree dated 23.09.2006. 4. Against the aforesaid judgment and decree of 2 the trial court defendant no.1 filed Eviction Appeal No.05 of 2006 which was dismissed on contest by the learned Additional District Judge-cum-Fast Track Court No.1, Madhubani vide his judgment and decree dated 16.08.2008. Against the aforesaid judgments and decree of the learned courts below the instant second appeal has been filed. 5. Learned counsel for the appellant vehemently challenges the judgments and decree of the learned courts below on the ground that although the suit was filed merely for eviction under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 but the learned courts below decided the title of the parties and that too without framing any such issue. He further submits that defendant no.1 had given the suit land to his wife who gifted it to her daughter, namely the wife of defendant no.2 and hence the plaintiff had no right, title or interest in the suit land. Learned counsel for the appellant further submits that Ext.2 is the sale deed dated 02.02.1990 executed by defendant no.1 in favour of the plaintiff, but the said sale was not complete as on the same date an agreement was executed by the plaintiff and defendant no.1 that if defendant no.1 pays the consideration amount to the plaintiff within a certain period, the plaintiff would execute a sale deed in favour of defendant no.1 and if the plaintiff failed to do so the sale deed would be executed through the process of the court. In the said circumstances, he submits that 3 neither the plaintiff was the owner of the suit premises nor there was any relationship of landlord and tenant between the parties. 6. The learned courts below very carefully considered the pleadings and evidence of the parties while deciding the said claim of the defendant. Admittedly defendant no.1 was the original owner of the suit premises and there was no material to show that he ever transferred the suit land to his wife or his wife gifted it to her daughter, rather it was some other property which was transferred and which was adjacent to the suit property. It was also found that the aforesaid claim of the defendants was contradictory to their own claim that defendant no.1 had executed the sale deed (Ext.2) on 02.02.1990 in favour of the plaintiff and on the same date an agreement (Ext.A) was executed by the plaintiff in favour of defendant no.1 with respect to the suit property. 7. Thus it was specifically found that the contents of the sale deed (Ext.2) clearly showed that it was not deed of mortgage, rather it was a full fledged and complete deed of title executed by defendant no.1 himself in favour of the plaintiff. So far Ext.A is concerned, the learned courts below also found that no document at all was produced by defendant no.1 to show that consideration money amounting to 18,000.00 was ever returned by defendant no.1 to the plaintiff as per the term of the alleged agreement (Ext.A) and hence the claim of 4 the defendant with respect to the absence of title of the plaintiff was rightly discarded by the learned courts below. 8. However, with regard to the question of title, the learned courts below were quite cautious and had specifically held that the said question was only incidentally decided as is required to be done in a suit for eviction under the Act. In the said circumstances, it cannot be said that question of title was finally decided, rather the defendant-appellant, if required, will be at liberty to file a separate suit with regard to his title which will be considered on its own merits. Hence on this count there is no illegality in the impugned judgments. 9. So far the question of relationship of landlord and tenant is concerned, the learned courts below had come to the finding that from the evidence of the parties it was quite apparent that plaintiff had fully proved the relationship of landlord and tenant between the plaintiff and defendants. So far the kirayanama (Ext.1) is concerned, defendant no.1 had denied his signature on the said kirayanama and it was compared by the expert with the signature of defendant no.1 on the written statement, affidavit and power, but the learned court below came to the conclusion that the said written statement, affidavit and power were filed by the defendant after the dispute had arisen and hence if the signature on the kirayanama was to be examined it should have been compared with the signature of defendant no.1 over the earlier admitted 5 registered documents. It was also found that apart from the kirayanama, the plaintiff had fully proved through his witnesses that tenancy was created between the plaintiff and defendant on 01.03.1992 and monthly rent of Rs.300.00 was being paid by defendant no.1 to the plaintiff. In these circumstances, the said finding of the learned courts below also appears to be legal and justified. 10. Neither in this court nor in the learned courts below defendant no.1-appellant has raised any argument against the plaintiff’s pleading and evidence on the point of default in payment of rent and the personal necessity of the plaintiff and hence the learned court of appeal below was justified in coming to the conclusion that the defendant had no objection with respect to the finding of the trial court on the points of default in payment of rent and personal necessity of the plaintiff, rather he had contested the suit only on the ground of title and relationship between the parties. 11. It may also be noted that defendant no.2 of the title suit, who is respondent no.2 in the instant appeal and who also happens to be the son-in-law of defendant no.1-appellant had earlier filed S.A. No.57 of 2009 against the aforesaid impugned judgments and decree of the learned courts below, but this court after considering the matter in detail dismissed the said second appeal vide its order dated 06.05.2009. 12. Considering the facts and circumstances of the 6 case, this court does not find any illegality in the impugned judgments and decree of the learned 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. harish/ ( S. N. Hussain, J. )