IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.498 of 2006 GANESH PD.MAHTO Versus VIDYA NATH PRASAD GUPTA With MA No.20 of 2007 DINA NATH GUPTA Versus GANESH PRASAD MAHTO & ANR For the Appellant : M/s S.K. Mazumdar, Malika Mazumdar & Binod Kumar For the Respondent: M/s Baidyanath Thakur & Shanker Kr. Thakur 14 16.07.2010 Heard learned counsel for the parties. These two appeals, since preferred against one common judgment dated 20th October, 2006 passed by learned Additional District Judge, Fast Track Court no.V, Samastipur, in Eviction Appeal no. 1 of 2005 / 1 of 2006, they have already been ordered earlier for analogous hearing so they are being finally disposed of with consent of the learned counsels, at this stage. The former appeal has been preferred by plaintiff-appellant wherein solitary defendant figures as solitary respondent. On the other hand, the latter appeal has 2 been filed by the person who was ordered by the lower appellate court by impugned remand order to be impleaded as one of the defendants in trial court and in his presence, after giving opportunity, fresh orders was to be passed. Original parties to the suit respectively appeared as respondents no.1 and 2. This is undisputed position that Ganesh Prasad Mahto, the appellant in former appeal, had filed suit for eviction against respondent Vidya Nath Prasad Gupta, who contested the suit by filing written statement and, ultimately, the trial court dismissed the suit giving rise to Eviction Appeal. The appellate court, after hearing the parties, arrived at the conclusion that Dina Nath Gupta is the necessary party to the suit being alleged purchaser of suit property from Kaushalia Devi, co-sharer of the plaintiff and giving him opportunity fresh decision of the trial court is required. Accordingly, findings of trial court was set aside and matter was remitted giving rise to present appeal. The original defendant has neither preferred any appeal before this court nor any cross appeal / objection. 3 Learned counsel for the plaintiff-appellant vehemently submitted that it was suit for eviction under Bihar Buildings (Lease, Rent and Eviction) Control Act. No person other than the landlord and tenant are required to be made party or any question of title etc is not be adjudicated upon but lower appellate court has arrived at the conclusion that the person claiming as purchaser from Kaushalia Devi is to be impleaded as party and suit is to be decided afresh in his presence. Whereas Vidya Nath Prasad Gupta, who was tenant and he is required to be evicted on the grounds taken by the plaintiff-appellant. The court below must have decided the question of relationship between the parties to the suit / appeal and grounds taken for eviction accordingly could have decided the appeal on its own merit. On the other hand, learned counsel appearing on behalf of the appellant of latter appeal (the appellant being stranger to the suit / appeal) submitted that the court below has committed error while remitting the appeal to the trial court for fresh hearing after impleading him as one of the defendant whereas it could have decided the appeal against the plaintiff holding that there was no relationship of landlord 4 and tenant between the parties and question of eviction does not arise and it could have also been held that any order passed in suit or appeal is not binding upon the appellant. It is undisputed that Dina Nath Gupta, the appellant of M.A. 20 of 2007, was at no point of time made party to the suit or appeal. No doubt, lower appellate court by remitting the appeal, directed his addition in the court below but neither order became operative nor he was impleaded party to the suit or any summon was issued against him. So he, not being party to the eviction suit /appeal, whether has any right to prefer appeal against the order of the lower appellate court? No convincing reply could be given by the learned counsel rather submission was made that an order may be passed to the effect that either the suit and appeal be dismissed as there was no relationship of landlord and tenant or exonerating the property purchased by him any other order be passed. But, at this stage, no such order can be passed in this appeal, as submitted. It is undisputed legal position that in pure suit for eviction complicated question of title cannot be decided. The original defendant though has contested the suit by filing 5 written statement but at no point of time alleged his own title with respect to subject matter of the suit even if there is any sale deed in the name of Dina Nath Gupta, son of original defendant executed by co-sharer of the plaintiff no question of title of Dina Nath Gupta on the basis of purchase from Kaushalia Devi can be determined in the instant eviction suit. Position would have been different had the solitary defendant put forward his own title over the subject matter by virtue of sale deed in his own name then the choice could have been of the plaintiff-appellant either to make necessary amendment in the plaint seeking due relief as regards to the sale etc. in favour of the defendant or face the consequence of not doing so. But in the instant case matter is altogether different. The lower appellate court has nowhere stated that materials available are insufficient to decide the limited question of relationship of landlord and tenant between the parties and eviction etc. The law as contemplated under Order 41 Rule 24 of the Code of Civil Procedure cast dutys upon the appellate court to determine the cases finally where evidence on record are sufficient. The provisions reads as such: 24. Where evidence on record sufficient 6 Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate court proceeds. Form the facts and circumstances, discussed above, the impugned order is not sustainable. Accordingly, it is set aside, matter is remitted to lower appellate court who is hereby further directed to dispose of the appeal on materials available between the parties to the appeal themselves preferably within four months on receipt or communication of the order. With the above observations and directions, M.A. no.498 of 2006 is allowed and M.A. no.20 of 2007 is disposed of. (Akhilesh Chandra, J.) AAhmad