IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.132 of 2006 1. Naresh Kumar Sah 2. Ashok Kumar Sah 3. Chandan Kumar Sah alias Chandan Kumar 4. Bipin Kumar Sah All sons of Sarjug Sah. 5. Most. Sakultla Devi, widow of Sarjug Sah All resident of Kasim Bazar, P.O. and Pargana Munger, P.S. Kasim Bazar, District Munger. Defendants-Appellants-Appellants Versus 1.(i) Rabindra Sharma 1(ii) Rajesh Sharma 1(iii)Rajeev Sharma sons of late Raj Kumar Sharma 1(iv)Ranjeew Devi 1(v) Rekha Devi 1(vi)Rita Devi 1(vii)Rena Devi All daughters of late Raj Kumar Sharmna. All resident of Kasim Bazar, P.O. and Pargana Munger, P.S. Kasim Bazar, District Munger. Plaintiffs-Respondents-Respondents. ----------- For the Appellants : M/s. Sunil Kumar No.III and Tarun Kumar Sinha, Advocates. For the Respondents : Mr. Kumar Uday Singh, Advocate ---------- 09/ 02.12.2008 Heard learned counsel for the appellants and learned counsel for the respondents. 2. This second appeal has been filed by defendant-appellant- appellants challenging judgments and decree of both the learned courts below. 3. The matter arises out of Title (Eviction) Suit No.04 of 1996, which was filed by the plaintiff-respondent-respondent for eviction of the defendant-appellant-appellants from the suit premises, which is a dwelling house, on the ground of default in payment of rent and also for a decree of realisation of rent and other ancillary reliefs. 4. The said suit was decreed by the learned Subordinate - 2 - Judge-II, Munger, vide his judgment and decree dated 25.09.1998, whereafter the same were challenged by the defendants in Title (Eviction) Appeal No. 02 of 1998, which was dismissed by the learned Additional District Judge-cum-Fast Track Court-V, Munger, by his judgment and decree dated 08.05.2006. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed by the defendants. 5. The claim of the plaintiff-respondent was based on a registered deed dated 22.08.1989 (Ext.4), by which the defendants had sold the property to the plaintiff. The claim of the plaintiff was also based on an unregistered Kirayanama of the same date i.e. 22.08.1989 (Ext. 1) executed by the plaintiff inducting the defendants as tenants in the suit premises for a monthly rental of Rs.400/-. It was also claimed by the plaintiff that the defendants did not pay the rent for several months and hence they became defaulter liable to evicted on the said ground. 6. On the other hand, the defendant-appellants admit the execution of sale-deed dated 22.08.1989 (Annexure 4) but stated that a fraud was committed by the plaintiff as the defendants intended to execute only a deed of mortgage by conditional sale and not a deed of absolute sale. They further claimed that on the same date there was an unregistered agreement dated 22.08.1989(Annexure A) , in which the plaintiff had undertaken to return the said house by 21.08.1995 and when the said house was not returned by the plaintiff by the said date Title Suit No.114 of 1995 was filed by the defendants for declaration - 3 - of title on the basis of the aforesaid agreement. It is also claimed on behalf of the defendant-appellants that the kirayanama (Ext. 1) said to have been executed by the plaintiff in favour of the defendants is an unregistered document and forgery has been committed in it also by the plaintiff and in view of the aforesaid agreement dated 22.08.1989 (Ext. A) there is no relationship of landlord and tenant between the parties and hence no question of any default arises in the instant case. 7. From the pleadings of the parties and the materials on record including the impugned judgments and decree, it transpires that both the learned courts below have very carefully gone into the issues of validity of kirayanama and the deed of transfer as well as the relationship of landlord and tenant between the parties and after considering the evidence on record and after getting the handwritings and signatures of the defendants on the kirayanama examined by expert arrived at concurrent finding that the kirayanama was not a forged one rather it was valid and binding upon the defendants and it fully proved that the suit house was let out to the defendants by the plaintiff on 22.08.1989 on a monthly rental of Rs.400/-.Hence clearly there was a relationship of landlord and tenant between the parties. 8. It was also held that once it is proved that the defendants had executed the kirayanama , the relationship of landlord and tenant between the parties has been established and it was for the defendants to show that they had paid rent to the plaintiff regularly but the defendants failed to prove the same, rather they denied existence of relationship of landlord and tenant . Hence both the learned courts - 4 - below were justified in arriving at the conclusion that there was default in payment of rent by the defendants. 9. So far question raised by the defendants that the kirayanama being an unregistered document should not have been admitted in evidence is concerned, it is well-settled that the kirayanama, even if it is an unregistered document, can be used for collateral purposes; such as for proving the relationship of landlord and tenant between the parties specially when it has been proved to be executed by the defendants themselves. 10. So far the unregistered agreement for sale dated 22.08.1989 (Annexure A) produced by the defendants is concerned, it has got no significance in the instant case specially when the sale deed has been found to be legal and valid and the relationship of landlord and tenant between the parties has been established by the kirayanama of the same date. Furthermore, Title Suit No. 114 of 1995, which was filed by the defendants basing their claim on the said agreement for sale dated 22.08.1989 (Ext. A) has been dismissed by the trial court, hence that plea of the defendants has also no leg to stand. Furthermore, if the title appeal filed against the said decree in the title suit is decided one way or the other, it will be open for the party, which has succeeded to take appropriate step in that regard. 11. In the aforesaid facts and circumstances, 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 - 5 - at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )