IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.965 of 2008 MD. SHAMIM AKHTAR Versus JAMIL AHMAD ----------- 2 10/7/2008 Heard counsel for the petitioner. The petitioner is aggrieved by the order of the court below dated 21.4.2008, whereby and whereunder, prayer of the petitioner to cross examine the plaintiff-landlord has been rejected on the ground that he having accepted the tenancy under plaintiff is precluded to cross examine in view of section 116 of the Evidence Act. The submission advanced by Mr Wasi Akhtar, learned Senior counsel appearing on behalf of the petitioner that if the written statement and the plaint are read together it would be clear that earlier the defendant petitioner was tenant of the plaintiff-opposite party, namely, Md. Jamil Ahmad, but said tenancy came to an end on account of notice of eviction given by Md. Jamil Ahmad and thereafter he was reinducted as a tenant under co- parcener, namely, Md. Ashlam, who admittedly is on litigating terms with the plaintiff Md. Jamil Ahmad in Partition Suit no. 15 of 1988. He would therefore contend that the petitioner having never admitted in his written statement that the plaintiff was landlord, petitioner could not have been precluded for cross examining the plaintiff on the question of tenant-landlord relationship. In the opinion of this Court, such submission on behalf of the learned counsel for the petitioner is wholly misconceived, in as much 2 as, from the entire reading of the plaint and the written statement it is clear that there was only registered Kirayanama of the year 1991 in which the petitioner had accepted the tenancy of Md. Jamil Ahmad, the plaintiff. No where in the written statement it has been mentioned that the petitioner after being evicted was reinducted as a tenant, rather in paragraph 22 thereof a fresh issue has been raised as with regard to ownership of the building by taking a plea that the same belongs to Md. Ashlam and not to the plaintiff. Thus, it becomes clear by comparative and close reading of two submission of the defendant- petitioner in his written statement, namely, in paragraph 18 and paragraph 22 wherein it has been stated that the plaintiff forcibly using fraudulent means had got the registered Kirayanama executed by the petitioner and thereafter a case has been set out that there is unregistered Kirayanama created by Md. Ashlam. Under such situation, this Court does not find any error in the impugned order, in as much as, the relationship of landlord and tenant as claimed by the plaintiff-opposite party is fully admitted by the petitioner by virtue a registered Kirayanama. The story of setting out title by Md. Ashlam in the circumstances appears only defence of the defendant-petitioner and rightly that has not been taken into consideration for the purpose of cross examination of the plaintiff, who has asserted and in fact prima-facie proved to be 3 landlord of the petitioner-defendant. Accordingly, the court below has not committed any material irregularity or jurisdictional error in passing the impugned order and as such there is no merit in this application which is accordingly dismissed. ( Mihir Kumar Jha, J.) Abhay Kumar