IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.12 of 1993 SMT.KUNTI DEVI w/o Shri Ram Nandan Chaudhary, resident of Mohalla- Nayatola, Patna, P.S. Pirbahore, District-Patna. ....Plaintiff- appellant Versus SHRI MAHABIR PRASAD BIDSARIA s/o late Ram Gopal Bidasaria, managing Partner ofBidasaria Agencies Kankarbagh,Patna, resident of Patliputra pth,Rajendra Nagar, P.S. Kadamkuan,District-Patna. ....Defendant-respondent. ----------- For the Appellant : Mr.Sandeep Kumar For the Respondents : Mr. S.D.Sanjay 34 11.1.2010 Three interlocutory applications have been filed by the appellant and a rejoinder thereto has been filed by the sole respondent. The appellant had filed an eviction suit being Eviction Suit No. 57/36 of 1987/1991, which was finally dismissed by the judgment and order dated 1.10.1992 by Sub Judge-VIII, Patna. The appellant has brought on record that during the pendency of this appeal for over a decade and half , the sole respondent used to deposit rent only when the Court used to direct ,otherwise, he refused to deposit the amount. It is thus prayed that on this conduct itself it be held that the respondent is an admitted defaulter and was liable to be evicted as such. From the rejoinder to the interlocutory application filed, in my view, there is one clear admission of the defendant- respondent that he has surrendered tenancy. Thus terminating the relationship of landlord and the tenant but while terminating the relationship, he has surrendered the possession to a third party. The justification being during the pendency of this appeal, the plaintiff- 2 appellant has entered into an agreement for sale of the premises with one Sanjiv Saran and it is pursuant to that agreement that the defendant- respondent surrendered the possession to Sanjiv Saran .The agreement, as between the plaintiff- appellant and the said Sanjiv Saran is Annexure -1 to the rejoinder and the subsequent agreement, as between the defendant- respondent and the said Sanjiv Saran is Annexure 2 to the rejoinder. On perusal of Annexure 1 no where the parties have agreed to deliver possession to Sanjiv Saran nor by the said agreement the defendant- respondent has been authorized to surrender possession to Sanjiv Saran nor the said Sanjiv Saran has been authorized to take possession from defendant- respondent. Thus the act of defendant- respondent in surrendering the tenancy and surrendering the possession to the stranger to the Suit and stranger to the property cannot be substantiated in law. He had no right to do so. As defendant- respondent has ,on his own admission, surrendered the tenancy now vacant possession, he must restore to the landlord i.e. plaintiff- appellant. He, by his own act, cannot create any third party right because whatever right he has in the property as a tenant,which tenancy by his own admission he has surrendered. Thus, in my view, on these subsequent events, the Suit has to be allowed and a decree of eviction has to be passed. The plaintiff- appellant would now be entitled to restoration of possession of the premises, in dispute, after evicting any person, who so ever may be, found in possession thereof. This is a judgment based on admission of the defendant- respondent 3 as being surrendered the tenancy , without landlord’s consent he could not have given the possession to a third party. The appeal is thus allowed in the terms aforesaid and stands disposed of accordingly. Singh (Navaniti Prasad Singh, J.)