IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.170 of 2004 SHANKAR NARAYAN SAHI Versus MD.ISHA ----------- 19/ 09.05.2008 Heard learned counsel for the appellant. This Scond Apeal has been filed on behalf of the plaintiff- appellant-appellant challenging judgment and decree dated 13.05.2004, by which the learned 3rd Additional District Judge, Saran, dismissed Title Appeal No. 3 of 2004 ( 2/2004) and affirmed judgment and decree dated 21.01.2004, by which learned Munsif-I, Chapra, dismissed Title Suit No. 13 of 2001, which was filed by the plaintiff-appellant for setting aside ex parte decree dated 25.09.2000 passed by the learned Munsif Chapra-I, Chapra, in Eviction Suit No.6 of 2000. The aforesaid Eviction Suit no. 6 of 2000 was filed by the sole respondent for eviction of the appellant on the ground of personal necessity. Since no one appeared on behalf of the appellant, who was defendant in the suit, the suit was decreed ex parte on 25.09.2000 and the appellant was directed to vacate the suit premises. For execution of the said eviction decree, Execution Case No.01 of 2001 was filed by the respondent. It transpired that in February, 2001 the appellant filed Title Suit no.13 of 2001 for setting aside the aforesaid ex parte decree on the ground that no notice of eviction suit was served on him and only on 14.01.2001 a notice of Execution Case No. 01 of 2001 was served - 2 - on the plaintiff, whereafter the plaintiff inspected the record of the execution case and also inspected the record of the eviction suit and learnt that by playing fraud an ex parte decree was obtained by the respondent. The said title suit was dismissed by learned Munsif-I, Chapra by judgment and decree dated 21.01.2001, against which the appellant filed Title Appeal No.3 of 2004( 2/2004), but the said appeal was also dismissed by the learned Additional District Judge-III, Saran by judgment and decree dated 21.01.2004, which is under challenge in this second appeal. Although the learned courts below have found that the respondent had claimed in his eviction suit that the appellant was his tenant, but in the title suit the appellant had claimed that he was not the tenant of the respondent, rather he was tenant of respondent’s brother Md. Iliyas, who had acquired title on the basis of a Will in his favour by his father Md. Haroon. It is a well-settled principle of Mohammedan Law that a Will cannot be executed in favour of an heir and hence the said claim of the appellant is not tenable in law. Furthermore, the learned courts below have also found after considering the evidence of the parties that there is relationship of land and tenant between the appellant and the respondent and hence the appellant cannot raise any objection to the title of the respondent. The learned courts below have also found that respondent’s son was not doing any business and the suit shop is reasonably and in good faith required by the respondent for his son. From the aforesaid - 3 - findings of the learned courts below, it is quite apparent that they have fully considered the respective claims of the parties and had come to the specific concurrent finding of facts, which cannot be interfered with by this Court in a Second Appeal. So far the question raised by the appellant in the instant Second Appeal with respect to the report of the Process Server and the service of notice in the eviction suit to the appellant, who was defendant therein, is concerned, the learned courts below have specifically found that the appellant had knowledge about the suit from much before and notice of the eviction suit was properly served on the plaintiff. This finding of the learned court below is also a concurrent finding of fact, which cannot be interfered with in the instant second appeal. In the aforesaid facts and circumstances, this Court does not find any substantial question of law involved in the instant Second Appeal, which is, accordingly, dismissed. MPS/ ( S. N. Hussain, J. )