IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.28 of 2009 Md. Rizwan S/o Late Hazi Mohammad Usman resident of Mohalla Sheikhana Khurd P.O and Town Biharsharif P.S. Bihar Dist. Nalanda At persent Calcutta Hardware Mohalla Alamaganj Bain House, P.O. and Town Biharsharif P.S. Laheri Dist. Nalanda Defendant- Appellant- Appellant Versus Md Jawed Eqabal s/o Md Sahabuddin resident of Mohalla Laheri P.O. and Town Biharsharif P.S. Bihar Dist. Nalanda Plaintiff-Respondent-Respondent ----------------------- For the appellant: Mr Anil Chandra, Advocate For the respondent: Mr Farookh Ahmad Khan, Advocate Mr Amar Nath Singh,Advocate ------------------- 05 28.04.2009 Heard learned counsel for the parties. 2. This second appeal has been filed by the sole defendant- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Eviction Suit no.20 of 2004 which was filed by the sole plaintiff-respondent-respondent for eviction of the defendant-appellant-appellant from the suit premises on the ground of bonafide personal requirement of the plaintiff as well as default in payment of rent by the defendant and for other ancillary reliefs. 4. The said eviction suit was decreed on contest by the learned Munsif, Biharsharif vide his judgment and decree dated 19.12.2007. Against the aforesaid judgment and decree of the trial court, the defendant filed Title Appeal no.01 of 2008 which was dismissed on contest with cost and special cost by the learned Additional District Judge I, Nalanda, vide his judgment and decree dated 29.09.2008. 5. On the basis of the arguments of the parties as well - 2 - as the materials on record including the impugned judgments and decree of both the learned courts below, it is quite apparent that the relationship of landlord and tenant between the parties is admitted and the question of personal necessity of the plaintiff has been rejected by the learned courts below, against which the plaintiff has not preferred any case. In the said circumstance, the only question which remains to be considered is question of default in payment of rent by the defendant. It is now not in dispute that rent of the entire holding no. 28A was Rs 335/- per month and the said holding was earlier subject matter of Eviction Suit no. 21 of 1999 which was decreed on the basis of partial eviction but this Court vide its order passed in Civil Revision no. 1081 of 2003 amended the decree only to the extent that the defendant will pay proportionate rent with regard to remaining portion of the said holding which he still held after partial eviction. 6. The learned courts below after considering the pleadings and evidence of the parties came to the specific conclusion that defendant was evicted from half portion of the holding in the previous suit but the remaining half portion of holding no. 28A was still in possession of the defendant as a tenant and on the basis of one objection or the other he was evading payment of rent and he was taking the plea of his exhibits which were simply petition, plaint, written statement, rent to Md Kalim but all the said documents had no bearing at all as area of the tenancy which remained in possession of the defendant as well as rent were already determined by this court in Civil Revision ordering payment of proportionate rent by the defendant but the - 3 - defendant could not produce any material to show that he had paid, tendered or remitted any rent to the plaintiff after the order of this court and hence it is quite apparent that the defendant did not even take care to honour the order of this court and was a clear defaulter. The learned courts below had also found that according to the defendant himself proportionate rent of the suit premises i.e. remaining half was Rs 125/- but he failed to prove by any material whatsoever that he had ever paid that amount during the period concerned. Accordingly, the learned courts below had rightly come to the conclusion that the defendant was bent upon unnecessarily harassing the plaintiff and trying to put off the matter on one pretext or the other and remaining in possession of the suit premises without payment of rent. 7. In the aforesaid facts and circumstances the judgments and decree of the learned courts blow are covered by the findings of facts and 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. (S.N.Hussain,J) shahid