IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.244 of 2009 Ram Swarup Sah, Son of Late Jhagru Sah, R/o Khatha, P.S.- Gogri, District- Khagaria.—(Plaintiff-Respondent)-Appellant. Versus Laddu Sah, Son of Late Babu Lal Sah, R/o Gauchari, P.S.- Gogri, District- Khagaria.---------Defendant---------------Respondent ----------- For Appellant: Sri NandanPd. Singh, Adv. Manish Kumar,Adv. 8. 30.08.2011 Heard the learned counsel appearing on behalf of the appellant in support of this appeal. This appeal has been filed against the judgment and decree dated 23rd March, 2009 passed by the District Judge, Khagaria in Title Eviction Appeal No. 07/08 reversing the judgment and decree dated 28th March, 2008 passed by Munsif, Khagaria in Title Eviction Suit No. 01/2000. The plaintiff has filed the suit for eviction of the defendant from the suit premises mentioned in the plaint on the ground that the defendant who is his tenant has defaulted in payment of rent and further the plaintiff also requires the suit premises for his personal necessity for establishing his son in business. The plaintiff has come out with the case that the defendant was inducted as tenant from May, 1993 at the monthly rental of Rs. 100/- per 2 month. It is the case of the plaintiff that he has got 1/3rd share in the plot and the rest 2/3rd share belong to his co- sharers and the suit house stands in his 1/3rd share in the plot. However, the defendant in his written statement has denied the relationship of landlord and tenant in between him and the plaintiff and has also denied the claim of default and arrears of rent as well as the personal necessity of the plaintiff. It has been asserted that the defendant is residing in his own house and not in the house as claimed by the plaintiff. The trial court after hearing the parties and considering the evidence has come to the finding that there exists a relationship of landlord and tenant between the plaintiff and defendant and after recording the finding of default and arrears in favour of the plaintiff, the trial court decreed the suit. In appeal, however the appellate court took notice of the fact that the defendant had not properly conducted his case but thereafter the appellate court has proceeded to consider the evidence and the rival submissions keeping in view that it is the plaintiff who has to prove his case without sticking over the weakness of the defendant’s case. It has been found by the appellate court 3 that the plaintiff has admitted in the plaint that his nephew has executed sale deed dated 26.05.1998 with regard to his share in the part of the plot where the plaintiff’s house is standing. The appellate court below has then considered the evidence of the plaintiff including his oral evidence and has found that the plaintiff in para 12 of his deposition has accepted that the defendants had their own house adjacent to the suit plot and his nephew (co-sharer of the plaintiff) had sold his share in the suit plot lying adjacent to the house of the defendant. The evidence of the pleader commissioner including his field book and report has also been considered by the appellate court and it has been found that the pleader commissioner had no where mentioned the defendant to be in possession of the suit house. On the basis of the analysis of the evidence the appellate court below has concluded that the plaintiff has failed to establish the relationship of landlord and tenant and thus allowed the appeal. The learned counsel appearing on behalf of the appellant has submitted that the appellate court has not properly considered the oral evidence of the plaintiff from which it can be established that the defendant is the tenant 4 of the plaintiff. Further it has also been submitted that the pleader commissioner appointed by the Court had not been directed to report about the possession of the suit house and therefore the said report did not mention about possession of the defendant over the suit house. Developing his submissions, the learned counsel for the appellant has further emphasized that the defendant had failed to cross examine the pleader commissioner and as such no benefit can be taken by him of the said report. After perusing the judgments of both the courts below and considering the submissions of the learned counsel it is clear that there is no dispute that the plaintiff has 1/3rd share in the plot no.254 in which the suit house stands whereas the other 2/3rd share of the plot belongs to his other co-sharers who had sold the same to the defendant. In his deposition as P.W.9 the plaintiff in paragraph no.12 has admitted that the defendant had his own house contiguous to the suit house and the 2/3rd share of the co-sharers of the plaintiff had also been purchased by the defendant. After the appreciation of the evidence on record the appellate court has rightly come to the conclusion that the defendant is residing in his own house 5 and the real dispute has arisen when the remaining part of plot no.254 has been sold to the mother of defendant and has recorded the finding regarding the absence of relationship of landlord and tenant which is sine qua non for maintainability of an eviction suit under the Rent Control Act. The reappraisal of evidence is not within the ambit of the second appellate jurisdiction unless the findings are shown to be perverse. No perversity in the findings recorded by the appellate court could be pointed out. As such there does not arise any substantial question of law for consideration in this appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)