APPEALS FROM APPELLATE DECREE NO.230 OF 1993 AND 275 OF 1993 Against the judgment and decree dated 27.02.1993 passed by Sri J.P. Yadav, Subordinate Judge-III, Jehanabad in T.A. No.03 of 1992 reversing part of the judgment and decree dated 06.07.1981 passed by Sri Vidya Sagar Prasad, Munsif, Jehanabad in T.S. No. 42 of 1974. *** S.A. NO.230 OF 1993 1. Mukesh Kumar S/o Late Punadeo Missir 2. Sachidanand Mishra S/o Late Punadeo Missir 3. Kanak Devi W/o Late Punadeo Missir 4. Babita Devi D/o Late Punadeo Missir 5. Ramita Devi D/o Late Punadeo Missir 6. Anita Devi D/o Late Punadeo Missir 7. Somita Devi D/o Late Punadeo Missir Residents of village Samanpur Bado, P.S. Karpi, District Jehanabad. …………Plaintiffs-Respondents-Appellants Versus 1. Kishundatt Missir, S/o Late Janardan Missir 2. Mangal Missir son of Late Bhatwat Missir, Residents of village-Samanpur Bado, P.S.-Parpi District-Jehanabad. ……….. Defendants-Appellants-Respondents. With S.A. No.275 of 1993 1. Vishun Dutta Mishir @ Kishundutt Mishir S/o Late Janardan Missir 2. Mangal Mishir son of Late Bhagwat Mishir, Resident of village Samanpur Bado, P.S.-Karpi, P.O. Ibrahimpur, District- Jehanabad. ………. Defendants-Appellants-Appellants. Versus 1. Mostt. Kunti Devi @ Kanak Devi W/o Late Punadeo Missir 2. Sachchidanand Mishra S/o Late Punadeo Missir 3. Mukesh Kumar S/o Late Punadeo Missir 4. Somita Devi D/o Late Punadeo Missir 5. Smt. Ramita Devi D/o Late Punadeo Missir 6. Smt. Anita Devi D/o Late Punadeo Missir 7. Smt. Babita Devi D/o Late Punadeo Missir Residents of village Samanpur Bado, P.S.-Karpi, P.O. Ibrahimpur, District-Jehanabad. -----------Plaintiffs-Respondents-Respondents. 2 Learned Counsel : Mr. Anant Kr. Bhaskar, Advocate (for appellants in S.A. No.230 of 1993 for respondents in S.A. No.275 of 1993) M/s Jugeshwar Pd. Sinha and Jainendra Kr.Sinha, Advocates (for respondents in S.A. No.230 of 1993 for appellants in S.A. No.275 of 1993) P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain, J. S.A. No. 230 of 1993 is filed by Punadeo Missir @ Punardeo Missir, who was the sole plaintiff-respondent-appellant challenging that part of the judgment and decree of the learned court of appeal below by which his case for relationship of landlord and tenant between the parties was disbelieved and his relief for eviction was rejected. However during the pendency of this second appeal the said sole appellant died and in his place, his heirs have been substituted as appellants. 2. S.A. No. 275 of 1993 is filed by Tuneshwar Mishir and three others, who were defendants-appellants-appellants challenging that part of the judgment and decree of the learned court of appeal below by which the title of the plaintiff was upheld and it was decided that defendants’ eviction from the western portion of the suit house over plot no.698 was justified. During the pendency of this second appeal appellant nos. 1 and 2 thereof died and their names were expunged at the instance of the remaining appellants. 3. In both the aforesaid second appeals parties are same and the subject matter is also the same as both the second appeals arise out of the same title suit and title appeal. Both the sets of appellants in the above mentioned second appeals are aggrieved by different parts and findings of the same judgment and decree of the learned court of appeal below. In the said circumstances, both the aforesaid second appeals were made analogous and were heard together and are being decided by this common judgment. 4. The matter arises out of the Title Suit No. 42 of 1974, which was filed by the plaintiff Punardeo Missir for eviction of the defendants 3 Tuneshwar Missir and others from suit premises on the grounds of default in payment of rent by the defendants and breach of the term of tenancy and also for arrears of rent. It is an admitted fact that Din Dayal Missir had two sons Shaligram and Bhikari, out of whom Shaligram had two sons Ram Ekbal and Jaipal, whereas Bhikari also had two sons Lootan and Janardan. Out of them Ram Ekbal had two sons Hardeo and Punardeo (plaintiff), whereas Jaipal had only one son Triveni. On the other hand, Lootan died issueless, whereas Janardan had four sons, out of whom three sons were defendant nos. 1 to 3, and his fourth son had died earlier leaving behind a son, who was impeaded as defendant no.4. Din Dayal Missir Shaligram Bhikari Ram Ekbal Jaipal Janardan Lootan X Hardeo Punardeo Triveni Taneshwar Muneshwar Kishundut Bhagat (Pl.) (D.1) (D.2) (D.3) Mangal (D.4) 5. The claim of the plaintiff was that before the Cadastral Survey Bhikari had died and in the year 1913 there was a partition between the two branches of Shaligram and Janardan with respect to plot no.698 (6 decimals) and plot no.693 (4 decimals) by which western half of both the plots were given to Shaligram (predecessor of the plaintiff) and eastern half was given to Bhikari (predecessor of the defendants) and in support of this claim the plaintiff produced Panchayati dated 22.01.1913 (Ext.X). The plaintiff further claimed that his grandfather purchased the eastern half of plot no.693 from the predecessor of the defendants for Rs.16.00 vide sada sale deed (Ext.1) duly executed by him on 16 Bhado 1342 Fasli (1935 A.D). With respect to plot no.698 the plaintiff averred that his father gave his western half of plot no.698 with building to the father of the defendants on rent of Rs.2.00 per month but when the father of the defendants 4 defaulted in payment of rent, the father of the plaintiff filed SCC Suit No.59 of 1946 which was decreed by the learned Munsif, Jehanabad vide judgment and decree dated 08.02.1947 (Ext.9) and subsequently in Execution Case No. 260 of 1947 the father of the defendants paid the arrears of rent and decree was satisfied (Ext.8). The claim of the plaintiff further was that in the month of Asarh 1356 Fasli (1949 A.D.) the defendants sold their eastern half of plot no.698 with building for Rs.75.00 to the plaintiff by a sada sale deed (Ext.5), whereafter the plaintiff became owner thereof and gave that portion of plot no.698 also to defendants on rent whereafter the said entire plot no.698 with building was given on rent of Rs.4.00 per month by the father of the plaintiff to the father of the defendants. The plaintiff also claimed that the defendants stopped payment of rent to the plaintiff since the month of Ashin of 1972 A.D. due to which notices were sent by the plaintiff to defendants in the year 1973 and 1974 regarding non- payment of rent but when the defendants did not respond the aforesaid title suit was filed by the plaintiff for eviction of the defendants. 6. On the other hand, the defendants admitted the genealogy of the family and also admitted that the said plots no.698 and 693 were earlier properties of the joint family but they contested the suit on the ground that in the partition of 1913 entire plot no.693 was given to the ancestor of the plaintiff whereas the entire plot no.698 was given to the ancestor of the defendants and hence the plaintiff had no right, title or interest in any portion of plot no.698 which was exclusively owned property of the defendants and hence there was never any relationship of landlord and tenant between the parties. 7. On the basis of the aforesaid claims of the respective parties, the learned trial court framed following issues:- (i) Is the suit as framed maintainable? (ii) Has the plaintiff got any cause of action for the suit? (iii) Is the suit barred by limitation, waiver, estoppel and acquiescence? (iv) Is the suit barred under section 17(1) of the Privileged Persons Homestead Tenancy Act 1947? (v) Is the suit bad for non-joinder of Hardeo Missir? (vi) Has the suit been properly valued and is the court fee paid sufficient? 5 (vii) Is the suit beyond pecuniary jurisdiction of the court? (viii) Has the plaintiff acquired subsisting right, title interest in the house in suit? (ix) Is there any relationship of landlord and tenant between the parties and is the plaintiff entitled to decree of ejectment against the defendant? (x) Is the plaintiff entitled for a decree of the arrears of rent if so to what amount? (xi) To what relief or reliefs the plaintiff is entitled to? 8. On the said issues evidence were led by the parties and arguments were made considering which the learned Munsif, Jehanabad decreed the suit on contest with cost vide his judgment and decree dated 06.07.1981 after arriving at the following findings:- (a) Ext.9 and 8 fully support the case of plaintiff which was also supported and corroborated by the oral evidence of PWs.5 and 6. (b) No documentary evidence has been filed by defendants in support of their contentions. (c) The plaintiff has proved by valid evidence that his ancestor got the western half of plot no.698 with building in the partition and he purchased the eastern half of the said plot from the defendants. (d) The relationship of landlord and tenant between the plaintiff and defendants has been proved and established. (e) The plaintiff has given notice under the provision of Transfer of Property Act to the defendants on the grounds of default in payment of rent and violation of the terms of tenancy and hence he is legally entitled to get the defendants ejected from the suit land and also for arrears of rents. (f) The defendants had never been recognized as privileged person by any competent authority, the defendants are tenants and have defaulted in payment of rent. 9. Against the aforesaid judgment and decree of the trial court the defendants filed Title Appeal No. 03 of 1992 and on the basis of the pleadings 6 of the parties the learned court of appeal below did not formulate any of its own points and considered all the issues framed by the trial court. 10. After considering the averments made by learned counsel for the parties and the materials on record, the learned Subordinate Judge-III, Jehanabad allowed Title Appeal No. 03 of 1992 in part by his judgment and decree dated 27.02.1993 after arriving at the following findings:- (a) Sada sale deed dated 03.05.1949 executed by Lootan Missir and Bhagat Missir in favour of Ram Ekbal Missir was without any consideration and hence it was illegal and void. (b) Plaintiff has got right and title only over the western three decimals of plot no.698. (c) The Kirayanama (Ext.Y) is forged document and there is no relationship of landlord and tenant between the parties. (d) Plaintiff is not entitled to any rent with respect to the eastern half of plot no.698. (e) Plaintiff has only cause of action for the 3 decimals of suit land which is situated in the western side of S.P. No.698. (f) Plaintiff has only cause of action for the suit land which is western three decimals of plot no.698. (g) Pleading of defendants that he comes under the provision of the Privileged Persons Homestead Tenancy Act is rejected. (h) The suit is not barred by non-joinder of the parties. (i) Claim of plaintiffs with respect to the western side of S.P. No.698 allowed. 11. The plaintiffs filed Title Suit No.230 of 1993 against that portion of the aforesaid judgment and decree of the learned court of appeal below by which their claim of title over the eastern half of S.P. No.698 was discarded and their claim with regard to relationship of landlord and tenant between the parties was disbelieved and their relief for eviction was rejected. This second appeal was admitted on 18.01.1995 by this court after formulating the following substantial question of law:- “Whether the learned lower appellate court is justified in assuming the duty of the trial court in absence of specific prayer to set aside Ext.5?” 12. The defendants, on the other hand, filed S.A. No. 275 of 1993 against that part of the aforesaid judgment and decree of the learned court of appeal below by which their claim over entire plot no.698 was rejected and the title of the plaintiffs with regard to western portion of the said plot was upheld 7 and it was decided that defendants’ eviction from the western portion of the suit house over plot no.698 was justified. This second appeal was admitted on 13.03.2000 by this court after formulating the following substantial question of law:- “Whether relationship of landlord and tenant was proved and defendants’ eviction from western portion of suit house over plot no.698 was justified?” 13. Although permission was given by this court to the appellants of both the second appeals to raise any other substantial questions of law at the time of final hearing of the appeal but when this second appeal was taken up for final hearing no other substantial question of law was raised by the appellants of any of the aforesaid two appeals and hence these two second appeals have to be decided on the aforesaid questions, already formulated by this court at the time of hearing of the second appeals under Order XLI Rule 11 of the Code of Civil Procedure. At the instance of the parties both the said questions were taken up together as they were interrelated. 14. On the aforesaid two substantial questions of law the claim of plaintiffs, who are appellants in S.A No. 230 of 1993 and are respondents in S.A. No.275 of 1993, is that it is an admitted fact that plot no.698 measuring 6 decimals as well as plot no.693 measuring 4 decimals were the joint family property of the two sons of Din Dayal Mishra, namely Shaligram and Bhikari. They also claimed that much earlier in the year 1913 there was a partition between Shaligram and Janardan (who was the surviving son of Bhikari) in which both the aforesaid plots were amicably partitioned by metes and bounds, allotting western half of both the plots to the branch of Shaligram and allotting eastern half of both the plots to the branch of Janardan and hence they came in possession of their respective allotted lands. It is also claimed that subsequently the branch of Shaligram also purchased the eastern 2 decimals of plot no.693 from the branch of Janardan by a sada sale deed for Rs.16.00 (Ext.1), whereafter the branch of Shaligram including the plaintiffs started living in the house over plot no.693 and gave the western 3 decimals of plot no.698 to the branch of Janardan on rent of 8 Rs.2.00 per month. It was also claimed that the father of the plaintiff filed SCC Suit No.59 of 1946 against the father of the defendants for arrears of rent with regard to the western portion of plot no.698 and the said suit was decreed on 08.02.1947 by the Munsif, Jehanabad (Ext.9) in which the claim of the defendants that they had got entire plot no.698 whereas plaintiffs got entire plot no.693 in the earlier partition, was rejected by that court and accordingly in Execution Case No.268 of 1947 defendants paid the arrears of rent and the decree was satisfied (Ext.8). In the said SCC case Ram Ekbal (father of Punardeo Missir) was the plaintiff whereas Lootan and Bhagwat, who were brother and son of Janardan, were defendants and hence it was binding on both the sides. 15. Learned counsel for the plaintiffs further argued that after the said suit the defendants sold their eastern half (3 decimals) of plot no.698 to the plaintiffs for Rs.75.00 by a sada sale deed dated 1st Asarh 1356 Fasli (1949 A.D.) (Ext.5), whereafter the plaintiffs gave the said eastern portion of plot no.698 also to the defendants and enhanced the rent to Rs.4.00 per month for the entire plot no.698 (6 decimals). It was also claimed that since then the defendants continuously paid rent but from Ashin 1379 Fasli (1973 A.D.) defendants stopped payment of rent, whereafter notices were sent by the plaintiffs to the defendants on 16.10.1973 and 07.03.1974 which were not heeded to and hence Title Suit No.42 of 1974 was filed by the plaintiffs for eviction of the defendants on the ground of default for payment of rent and breach of the terms of tenancy from the entire plot no.698 which contained building. 16. Learned counsel for the plaintiffs also raised the points that Ext.5 the sada sale deed executed by Lootan in favour of Shaligram fully proved that the eastern 3 decimals of plot no.698 was sold to the branch of the plaintiffs for Rs.75.00 and hence the plaintiffs acquired title over the entire plot no.698 whereas Ext.X the Kirayanama which was signed by the defendants fully proved that they had taken the entire plot no.698 from the branch of the plaintiffs on rent of Rs.4.00 per month and hence the plaintiffs were fully justified in filing the suit for eviction of defendants from the entire plot no.698 containing building, as the 9 defendants had not paid rent of the said premises for several months. The other point raised on behalf of the plaintiffs is that the sada sale deed (Ext.5) executed by the defendants in favour of the plaintiffs was specifically mentioned in their pleadings but neither the defendants raised any pleading in the written statement that no consideration money was paid nor they pleaded that the eastern part of plot no.698 was not sold to the father of the plaintiff, hence no such issue was framed by the trial court, but in spite of that the learned court of appeal below declared it illegal and void due to non-payment of consideration money merely on the basis of confusing statements of PW.6, although the said Ext.5 contained signature of the father of the defendants and also contained definite statement about payment of consideration money, whereas there was no denial of the said fact by any of the evidence produced by the defendants. Further point raised by learned counsel for the plaintiffs is that the judgment of Small Cause Court (Ext.9) fully showed that the claim of the defendants over entire plot no.698 was rejected and the plaintiffs were found in possession of the western half of the said plot on the basis of partition which contained house in the tenancy of the defendants and hence there being no break of tenancy between landlord and tenant, tenancy existed between the parties as proved by valid and reliable evidence including Ext.9. 17. On the other hand, learned counsel for the defendants who are respondents in S.A. No.230 of 1993 and are appellants in S.A. No.275 of 1993 admitted the genealogy of the family and the fact that the suit property jointly belonged to Shaligram and Bhikari, both sons of Din Dayal Missir and there was a partition among them but he submits that in the said partition, plot no.693 was given to the branch of Shaligram (predecessor of the plaintiff), whereas plot no.698 was given to the branch of Bhikari (predecessor of the defendants). He denied the sale of any portion of plot no.693 by the branch of Bhikari to the branch of Shaligram and submitted that Ext.1 (sada sale deed of 1935) was illegal and was not admissible in evidence for want of registration, specially when no pleading regarding plot no.693 has been made and that Lootan never executed any 10 deed of transfer for the suit lands nor he was competent to do that as he was not the Karta of the family, rather it was Janardan who was the Karta of his branch. He also denied the kirayanama which was produced as Ext.X for identification with respect to the western portion of plot no.698 and stated that there was nothing on record to show that the said kirayanama was executed by both the sides. 18. Learned counsel for the defendants also averred that the judgment in SCC Suit cannot operate as res-judicata in any subsequent litigation between the same parties for recovery of possession, specially in absence of any corroborative evidence. It was also stated that section 23 of the Provincial Small Cause Courts Act 1887 specifically provides that Courts of Small Causes cannot determine the claim of title and proof or disproof of a title to immovable property and if such question arises in a Small Cause Case, the court at any stage of the proceeding may return the plaint to be presented before a court having jurisdiction to determine the title. Hence according to him the judgment in the Small Cause Case (Ext.9) cannot operate as res-judicata in any subsequent suit regarding title and possession even if it is between the same parties. 19. It was also claimed by learned counsel for the defendants that the findings of the learned court of appeal below with regard to eastern portion of plot no.698 holding that it belonged to the defendants was absolutely correct and was a finding of fact which cannot be interfered by a second appellate court, whereas the finding of the learned court of appeal below about the western portion of plot no.698 holding it to be of the plaintiffs, was illegal and perverse and was not based on any valid and legal material. He further submitted that the learned court of appeal below having specifically found the kirayanama (Ext.Y) to be false, there was no occasion for the said court to allow the claim of the plaintiffs with respect to the western portion of plot no.698. 20. So far the substantial question of law formulated in S.A. No.230 of 1993 is concerned, it is an admitted fact that both the parties are members of two branches of the same family and their predecessors had 11 jointly purchased plot no.693 (4 decimals) and 698 (6 decimals) and both the branches had half share in both the aforesaid plots, which they partitioned in the year 1913. However, the dispute in question is that the plaintiffs’ claim that in the partition (Ext.X/1) of the year 1913 the branch of Shaligram got half of both the plots from the west and the branch of Bhikari got half of both the plots from the east, whereas the claim of the defendants is that the branch of Shaligrm got plot no.693 (4 decimals) and the branch of Bhikari got plot no.698 (6 decimals). In support of their contentions the defendants could not produce any valid, legal and reliable evidence, whereas the plaintiffs produced several documents to prove that their branch in the said partition (Ext.X/1) got 2 decimals of plot no.693 from the west and 3 decimals of plot no.698 from the west whereas defendants’ branch got 2 decimals of plot no.693 from the east and 3 decimals of plot no.698 from the east. The documents of the plaintiffs include the panchayati partition dated 22.01.1913 (Ext.X). In addition to that Ext.A/2 is a deed of mortgage executed by Janardan Missir (the father of the defendants) in favour of third person on 12.03.1945 according to which the eastern side of plot no.698 was in possession of Janardan Missir, whereas the plaintiffs had 3 decimals from the west in that plot. In the said circumstances, the learned court of appeal below rightly came to the conclusion that the western 3 decimals of plot no.698 belonged to the plaintiffs whereas 3 decimals of that plot belonged to the defendants. 21. Ext.5 is a sada sale deed dated 01 Asarh 1356 Fasli (1949 A.D.) said to have been executed by the predecessor of the defendants in favour of the predecessor of the plaintiffs with regard to the eastern half of plot no.698 for Rs.75.00. The learned court of appeal below considered the said document in detail and found that the sole plaintiff himself stated in his deposition as PW.6 that at the time of purchase the consideration money was not paid and there was no evidence to prove the payment of consideration money on any subsequent date. In view of the aforesaid admission of the plaintiffs themselves as well as on the basis of the other evidence on record, 12 the learned court of appeal below came to the