IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.289 of 2010 Deoratan Mahto & Ors. Versus Md. Islam & Ors. ---------------------------------- 9 20-9-2011 Heard Mr. T.N. Maitin, learned senior counsel appearing on behalf of the appellants and Mr. Arshad Ahmad, learned counsel appearing on behalf of the respondents. The plaintiffs had filed the suit for declaration of their title over the suit premises and for a decree of ejectment against the original defendant, Tinkouri Mahto, and further for arrears of rent. The plaintiffs have stated that the suit house originally belonged to Abdul Hakim who had got it released in their favour under the provisions of The Bihar Evacuee Property Management Act from the Custodian and have further stated that the predecessor of the defendant had been the tenant in the suit house and the Custodian directed him to pay the rent of the suit should to Abdul Hakim. Later on, Abdul Hakim sold the suit house to the plaintiffs by registered sale deed dated 3-8-1977. It is the further case of the plaintiffs that the predecessor of the defendant had earlier vacated the suit house, but later on the father of the plaintiffs inducted him as tenant in the 2 year1977 on monthly rent. In view of the default in payment of rent the plaintiffs filed an eviction suit against the defendant, but the same proceeded ex-parte in absence of the defendant and had been dismissed. The plaintiffs have also asserted that they have got bonafide personal necessity of the suit house for their own residence. Thus, on the ground of default and personal necessity the present suit had been filed. The defendant appeared in the suit and denying the assertions of the plaintiffs has asserted that the suit house was long abandoned and he started residing therein since 11-9-1959 uptil now and has acquired title over the same by adverse possession. Both the parties led evidence in support of their rival cases. The plaintiffs had also by amendment in the plaint added the relief of declaration of their title over the suit house. The trial court on consideration of the evidence on record and the submissions of the parties has come to the finding that the suit house belonged to Abdul Hakim in whose favour it had been released by order dated 9-5-1956 (Ext.5) passed by the Custodian under the Bihar Evacuee Property Management Act. The trial court further has come 3 to the finding that in the order(Ext.5) as well as the letter(Ext.6), Tinkouri Mahto, predecessor of the defendant, had been mentioned as a tenant of the suit house and residing in the same in that capacity and to whom the direction had been issued by the District Assistant Custodian under the Bihar Evacuee Property Management Act to pay rent. On the basis of these findings the trial court has come to the conclusion that the plaintiffs have valid title over the property and the defendants are the tenants in the suit premises. In appeal, the appellate court reappraised the evidence on record and has concurred with the findings of facts recorded by the trial court. The appellate court has considered the order of the Custodian(Ext.5) and in view of section 27 of the Bihar Evacuee Property Management Act has held the same to be a public document and has further held that the defendant, who had challenged the same to be not a genuine document, has failed to establish the said fact. On the basis of the content of the order (Ext.5) mentioning the predecessor of the defendant as tenant, the appellate court has concluded that the defendant had earlier been tenant in the suit premises and disbelieved the story of 4 adverse possession, as propounded by the defendant. The learned counsel for the appellants has laid stress on the fact that no issue of title has been framed in the suit and further no finding has been recorded by the appellate court below with regard to the title of the plaintiffs. The learned counsel has further submitted that the plaintiffs have come out with a case of eviction accepting the defendant to be tenant from 1977 in the suit house and, therefore, in absence of the finding of relationship of landlord and tenant, no decree can be passed for eviction against the defendant. Developing his submission further, the learned counsel has pointed that admittedly the defendant had been in possession of the suit house from the year 1977 and as such the suit is barred having been not filed within twelve years of possession. As per the learned counsel for the appellants, these are the substantial questions of law arising in this appeal for consideration. From the perusal of the impugned judgments, it appears that both the parties were aware that the question of title over the suit house was involved and both the parties went to trial knowing this fact and also led evidence in that regard. It is not the case of the appellants that non-framing 5 of the issue of title has caused prejudice to them in the sense that they did not get opportunity for leading their evidence on the issue of title and participating in the hearing of the suit on that issue. Therefore, in such a circumstance non- framing of issue of title in the suit cannot be said to be momentous enough to vitiate the findings of title and the judgment based upon it. So far as consideration of the question of title is concerned, the order passed in Appeal no. 795 of 1955 by the Custodian under the Bihar Evacuee Property Management Act(Ext.5) shows that the suit house was released in favour of Abdul Hakim, the vendor of the plaintiff. The defendants have failed to establish their case that this order(Ext.5) is not a genuine and valid order.Both the courts below have rightly placed reliance upon this Ext.5 for holding that the vendor of the plaintiffs, namely, Abdul Hakim had been title-holder of the suit house from whom the plaintiffs have purchased the suit house by registered sale deed. From the discussions appearing in various paragraphs of the appellate court judgment, it is clear that the appellate court has accepted the validity of the order(Ext.5) and absence of a separate finding on the title of the plaintiffs will not vitiate the judgment as the appellate 6 court was conscious of the issues arising between the parties and has written the judgment in its own way. The submission of the learned counsel in this regard , thus, has no force. The contention on behalf of the appellants regarding the bar of the suit by limitation under Article 64 of the Limitation Act is clearly misconceived. The word ‟dispossession‟ occurring in Article 64 of the Limitation Act implies coming in possession and driving out from possession and in order to succeed on this score the defendant will have to establish the ouster of the plaintiff from the suit property. Mere continuing in possession without the element of ouster will not be sufficient to attract the bar of Article 64 of the Limitation Act. In the present case it is not the case of the defendant that he dispossessed the plaintiff or for that matter his vendor at any point of time and in absence of the necessary pleading in the written statement qualifying to the pre requisites for attracting the provision of Article 64 of the Limitation Act, the submission of the appellants on this account has no legs to stand. There is no dispute that the plaintiffs have filed 7 the suit claiming themselves to be the title-holders and have also prayed for ejectment of the defendants from the suit premises. The plaintiffs have pleaded that the defendants are their tenants but the defendants had denied the relationship of landlord and tenant and set up a title over the suit premises unto themselves. Both the courts below have found that the plaintiffs have title over the suit premises and have further found that the defendants have failed to establish their title by adverse possession. In such a circumstance, even if the relationship of landlord and tenant is not established, still a decree for ejectment of the defendant can be passed on the basis of general title of the plaintiffs. In a decision in the case of Mohd. Mian v. Jugeshwar Prasad, reported in 1951 Patna 550 it has been held as follows: “……If the question of title has been raised in the trial of the suit & has been investigated, the parties knowing about it & adducing evidence on the point, & court. is in a position to give the plaintiff the relief asked for on the basis of his title, there is no reason why the court should drive the plaintiff to file another suit in order to get this relief, provided that the plainiff has done nothing to disqualify him from receiving equitable relief, e.g., by coming to court with a false story. In this view of the matter, the question of court fee is no bar to the grant of such relief………” In a later decision of this Court in Kasturi Devi Vs. Shripal Singh , reported in A.I.R.1954 Patna 128 the 8 same view has been reiterated and it has been further held as follows: “ It has been urged that a plaintiff who comes to the Court with one story cannot be allowed to succeed on a different case. This is not an invariable rule-„Sri Mahant Gobind Rao v.Sita Ram Kesho,‟ 2 Cal WN 681(PC)(F). The question of title was put in issue in the present case by the appellants themselves and has been fully investigated between the parties. In the circumstances it cannot be said that the Munsif has exercised his jurisdiction incorrectly by refusing to drive the plaintiff to file a fresh suit.” The case of the defendant of acquiring title by adverse possession has been disbelieved by both the courts below with further concurrent finding that the plaintiffs and their vendor have got title over the suit house. The appellants have not succeeded in establishing that the concurrent findings of fact recorded by both the courts below are perverse in any manner. In view of the above said discussions, there is no substantial question of law arising in this appeal for consideration. This appeal is, accordingly, dismissed. roy ( V. Nath, J.)