APPEAL FROM APPELLATE DECREE NO. 281 OF 1999 ……………. Against the judgment and decree dated 30th June, 1999 passed by Ramashankar Singh Yadav, 3rd Additional District Judge, Nalanda in Title Appeal No.45 of 1997 (01 of 1998) reversing the judgment and decree dated 30th September, 1997 passed by Sri Pravas Kumar Singh, Munsif, Bihar (Nalanda) in Title Suit No. 90 of 1996. …….. Sri Umesh Prasad Son of Sri Mahabir Prasad, resident of Mohalla Mathuria, Town Bihar, P.S. Murarpur, P.O. Biharsharif, District Nalanda……….Plaintiff-Respondent-Appellant. Versus 1(i) Mehrunisa wife of Late Bikku Mian 1(ii) Md. Gulam Rasool 1(iii) Md. Parvez Alam 1(iv) Md.Firoz Alam @ Pappu 1(v) Md. Sohail Alam 1(vi) Md. Chirag Alam @ Jayauddin @ Sonu @ Hafiz Saheb Sons of Late Bikku Mian, resident of Mohalla Alamganj Town Bihar, P.S. Bihar, P.O. Biharsharif, District Nalanda. 1(vii) Ruksana @ Pappi, daughter of Late Bikku Mian, wife of Dildar Modi, resident of Mohalla Basepur Pul Ke Niche, P.O. Dhanbad, District Dhanbad………………………Defendant-Appellant-Respondents ------- For the appellant : M/s R.K. P. Singh, Bal Bhushan Choudhary, Amrendra Nath Choudhary and Vishwash, Advocates. For the respondents : M/s Ajay Kumar Thakur and Amit Kumar Advocates. -------- P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN --------- S. N. Hussain, J. This second appeal has been filed by the sole plaintiff- respondent-appellant challenging the judgment and decree of the lower appellate court by which the judgment and decree of the trial court was set aside and the claim of the plaintiff was rejected. During the pendency of this second appeal the sole defendant-appellant-respondent died and his heirs were substituted. 2. The matter arises out of Eviction Suit No. 05 of 1989, (01/1991) filed by the sole plaintiff-respondent-appellant for eviction of 2 the sole defendant-appellant-respondent(now deceased) from the suit premises, which is a shop room measuring 19 ft. x 117 ft. bearing Holidng No.82-A (part of old Holding no.82) within Ward No.5 of Bihar Municipality under P.O. & P.S. Bihar Sharif in the District of Nalanda on the grounds of personal necessity of the plaintiff for the suit premises, default in payment of rent by the defendant and breech of the term of tenancy. Following reliefs were claimed in the suit: (i) Decree for eviction of defendant from the suit premises. (ii) Decree for arrears of rent against defendant for Rs.1,300.00. (iii) Decree for pendente lite & future rent @ Rs.200.00 per month. (iv) Cost of suit to be paid by the defendant in favour of the plaintiff. (v) Any other relief /reliefs to which plaintiff is deemed entitled. 3. The claim of the plaintiff was that the suit premises was ancestral property of one Noor Hassan who left behind only a daughter Bibi Eidan after whose death the ancestral properties including the suit premises were inherited by her children including Rahat Hussain. It is also claimed that the defendant was inducted as tenant in the suit premises by Rahat Hussain in 1978 on the rent of Rs.200.00 per month. Plaintiff further stated that the said heirs executed a deed of agreement for sale with the plaintiff on 28.04.1988 (Ext.3) and finally they sold the suit premises to the plaintiff for valuable consideration of Rs.46,000.00 by registered deed dated 16.07.1988 (Ext.8) and since then the plaintiff is the owner-landlord of the suit premises and had been duly mutated. 4. The plaintiff further claimed that he informed the defendant about the said purchase and requested him to vacate the suit premises, which the plaintiff required for his own requirement, whereafter the defendant acknowledged the plaintiff as his landlord and promised to pay the said rent to him and also to vacate the suit premises by 31.07.1988. It was also stated that the defendant betrayed his promises 3 and he neither paid any rent to the plaintiff nor vacated the suit premises, in spite of repeated requests by the plaintiff and in spite of written agreement between them dated 01.08.1988 according to which defendant was to vacate the suit premises by 31.12.1988. Hence the suit was filed by the plaintiff in February 1989 for eviction of the defendant. 5. On the other hand the defendant contested the suit asserting his own right and title over the suit premises and claiming that one Himmat Atishbaz was the original owner of the suit property and he gifted it to Gulani Atishbaz by sada deed dated 16.01.1923 as the property was valued at Rs.25.00 only, whereafter in 1923 itself the donee constructed his residential house there on, which, after his death, was inherited by his son, namely the defendant, who demolished the old structure and constructed a new shop room, which was numbered as Holding no.55-B in Bihar Municipality and the defendant runs his business of electrical decorators therein. It was also averred that for the first time municipal tax was assessed in 1984-85, to the tune of Rs.37.60 which the defendant paid on 28.05.1988 for which Receipt no.4713 was granted to him, but when he received notice dated 02.11.1998 from Bihar Municipality, he made enquiries and found that entry in the municipal demand register was forged. 6. It was further claimed by the defendant that the land of plaintiff’s vendor was towards north of the suit premises and he had no concern with the suit land, which was completely unconnected with the adjacent premises of the plaintiff. Hence he claimed the suit premises on the basis of his own title asserting that the suit was not maintainable and was barred by the law of limitation etc. The defendant stated that in the said circumstances, there was never any relationship of landlord and tenant between the parties and accordingly there was no question of payment of rent or default therein nor the plaintiff was entitled to get possession of the suit premises on the ground of his requirement. 7. On the basis of the pleadings of the parties, the trial 4 court framed the following issues for deciding the eviction suit: (i) Is the suit as framed maintainable ? (ii) Whether there is any cause of action for the suit? (iii) Is there any relationship of landlord and tenant between the plaintiff and the defendant? (iv) Whether the plaintiff has got personal bonafide need of the suit premises and whether he is entitled to get a decree of eviction against the defendant on this ground? (v) Whether part eviction of the defendant from the suit premises will serve the purpose of the plaintiff? (vi) Whether the defendant has defaulted in payment of rent? (vii)Whether the plaintiff is entitled to get a decree for Rs.1,300.00 being arrears of rent and whether the plaintiff is also entitled to a decree for pendente lite and future rent at the rate of Rs.200.00 per month? (viii)Whether the plaintiff is entitled to any relief or reliefs? 8. After hearing the arguments on behalf of both the parties, Additional Munsif-1, Bihar Sharif decreed the suit (Title Suit No.05 of 1989) on contest with cost vide his judgment and decree dated 15.04.1993 after arriving at the following findings:- (a) Defendant’s claim of title over the suit premises has no leg to stand and it is a mere pretence to frustrate the purpose of the suit. (b) Plaintiff is the landlord and defendant is his tenant for the suit premises. (c) Plaintiff has personal need for the suit premises for shifting his business, which at present he is running in a rented house. (d) Defendant has defaulted in payment of rent for over six months. (e) Plaintiff is entitled to the arrears of rent Rs.1,300.00 as well as pendente lite rent and future rent @ Rs.200.00 per month. (f) Defendant is liable to be evicted from the suit premises and plaintiff is entitled to a decree of eviction. (g) Suit as framed is maintainable and there is valid cause of action for the suit. (h) Plaintiff is entitled to the reliefs as claimed for. 9. Against the aforesaid judgment and decree of the trial 5 court the defendant filed Title Appeal No.27 of 1993, which was contested by the plaintiff. However after considering the respective claims of the parties, the lower appellate court formulated the following point for determination in the title appeal:- “Whether there is relationship of landlord and tenant between the plaintiff and the defendant.” 10. After hearing the arguments raised on behalf of both the parties Additional District Judge, Nalanda allowed the title appeal (Title Appeal No.27 of 1993), set aside the judgment and decree of the title suit finding that the defendant had made out a case of title and thus remitted the matter to the trial court vide his judgment dated 12.08.1994 for fresh consideration of the following matter:- “Whether the question of valuation will be gone into by the court. Suit valuation be fixed by the court. If he finds it to be beyond pecuniary jurisdiction of the court, the plaint shall be returned, if not the plaintiff may be asked to pay ad valorem court fee. The evidence already led by the parties shall in that event continue to be good evidence but the parties will be permitted to lead further evidence on the question of title.” 11. On remand Title Suit No.05 of 1991 was renumbered as Title Suit No.20 of 1996 and fresh issues were framed by the trial court for deciding the suit as per the above mentioned judgment of remand passed by the lower appellate court. The fresh issues were as follows:- (i) Is the suit as framed maintainable ? (ii) Has the plaintiff got any cause of action? (iii) Is the suit under valued and the court fees paid insufficient? (iv) Whether the plaintiff or the defendant have got title over the suit land? (v) Whether there is any relationship of landlord and tenant between the plaintiff and the defendant? (vi) Whether the plaintiff is entitled to a decree for eviction on the ground of personal necessity? If yes, whether partial eviction is any possibility and practicable? (vii) Whether the plaintiff is entitled to any relief or reliefs as claimed for? 6 12. After considering the pleadings and evidence of the parties, Munsif, Bihar Sharif decreed the suit (Title Suit No.90 of 1996) on contest with cost vide his judgment and decree dated 30.09.1997 after arriving at the following findings:- (a) Issue nos.(i) and (ii) were not pressed at the time of argument, hence decided in favour of the plaintiff. (b) Issue regarding valuation and court fee already decided during the hearing of the suit and accordingly court fee has been paid. (c) Evidence of the defendant on the points of gift and construction of house are contradictory and not trustworthy. (d) Municipality has cancelled the only receipt granted to the defendant, but he relied upon it despite the knowledge. (e) Defendant did not mention about the gift before the municipal authority or in the petition. (f) Gift deed has been forged and fabricated for the exigency of this case. (g) Plaintiff’s registered sale deed is valid and genuine and some of the vendors came to support his case. (h) Plaintiff has got right, title and interest over the suit premises. (i) Defendant was occupying the suit premises with leave and license of plaintiff’s vendor. (j) Defence of the defendant has been struck off and hence his defence against ejectment cannot be looked into. (k) Lower appellate court in its judgment of remand has given a definite finding that plaintiff was not able to prove relationship of landlord and tenant between the plaintiff or his vendor. (l) Lower appellate court had permitted the parties to lead evidence on the question of title, but no further evidence was led on the point of relationship. (m) I dare not to disturb the finding of the appellate court on that point (relationship). (n) Issue no.(v) is decided in favour of the plaintiff. (o) Plaintiff has not uttered a word regarding his personal necessity in his deposition and had only said that he informed the defendant that the suit premises was purchased for his own use. (p) Admittedly plaintiff is doing business in another shop 7 but no evidence has been led to show any threat of eviction. (q) Plaintiff has not proved his bonafide and reasonable requirement of the suit premises. (r) Defendant contested the suit on false and wrong pretence and without any basis. (s) Plaintiff has been able to prove his title and hence he deserves equitable relief under Order VII Rule 7 of the Code of Civil Procedure for ejection of defendant. 13. Against the aforesaid judgment and decree of the trial court, the defendant filed Title Appeal No.45 of 1997 (01 of 1998). Keeping in view of the earlier judgment of remand passed by the lower appellate court, the following point was framed for deciding the title appeal: “Whether the plaintiff has got title to the suit property and if so whether plaintiff was entitled to recovery of possession”? 14. In the aforesaid title appeal the plaintiff, who was respondent, filed a Cross Objection challenging those findings of the trial court which were against the plaintiff, including those with respect to relationship of landlord and tenant between the parties as well as with respect to the grounds of eviction sought by the plaintiff. However, this cross objection was completely ignored by the lower appellate court, which did not even mention it in its judgment. 15. After considering the pleadings and evidence of the parties, Additional District Judge-3, Nalanda allowed the title appeal (Title Appeal No.45 of 1997), set aside the judgment and decree of the trial court and rejected the claim of the plaintiff vide his judgment and decree dated 30.06.1999 after arriving at the following findings: (a) It is proper to consider only those facts and evidence which relate to the question of title. (b) The earlier appellate court has already held that there is no relationship of landlord and tenant between the plaintiff and the defendant in respect of the suit premises and the said finding is final, so the evidences on the point of tenancy need no consideration. (c) For deciding issue no.(iv) as to “whether the plaintiff or defendant have got title over the suit and”, the trial 8 court framed two points for determining it, namely whether the vendors of the plaintiff had title and interest over the suit premises and whether the disputed shop is part and parcel of the property transferred to the plaintiff or it has got separate entity. (d) The trial court while deciding issue no.(iv) erred in raising the above mentioned second point which was wrong and unwarranted. (e) it is an admitted fact that suit premises is situated within the area of Bihar Municipality which remained unsurveyed and hence record of right, map, area, boundary etc. of the suit premises or any adjacent land are not available. (f) Plaintiff should have given the area and dimension of the khund which belonged to his vendors and out of which they transferred a portion to the plaintiff and hence the suit land cannot be located either from the plaint or the map attached to it. (g) Denying the claim of the plaintiff, it is stated by the defendant in his written statement that plaintiff any how obtained a mutation order on 22.09.1988 (Ext.18) and a correction slip on 27.09.1988 (Ext.16-A) with respect to some land which is not the suit land in collusion with municipal staff. (h) Even if it is assumed that there is no dispute regarding location of the suit land and both parties are litigating for one and same property, the question remains to be considered is whether the plaintiff succeeded in establishing his title and possession over the suit property. (i) Municipal tax receipts (Ext.9 series) with respect to Holding no.69, 62 and 82 are of no help as they do not and cannot suggest that the disputed land was a part of holding bearing on it. (j) Ext.10 is the application of plaintiff’s vendor to the Commissioner Bihar Municipality for permission to construct building on a specific land, which bears the endorsement of sanction by the said authority, but the site plan has not been filed by the plaintiff and hence an adverse inference is to be drawn against him. (k) From the correction slip of Executive Officer, Bihar Municipality dated 23.09.1988 (Ext.16) the actual area and the location of the subject matter of the mutation in favour of the plaintiff cannot be ascertained. (l) Ext.17, 17A and 17B are municipal assessment list of holding no.62, 82 and 86 bearing the name of plaintiff’s vendor in which the area of the khund is mentioned as 2 kathas, but the plaintiff neither mentioned it in his written statement nor got it measured through the agency of the court. (m) The documents relied upon by the plaintiff to establish his title are actually no document of title and title 9 cannot be ascertained therefrom. (n) From the pleadings of both the parties it is clear that when the dispute initially arose between the parties prior to the suit, they took the matter to the municipality, where the plaintiff claimed on the basis of his purchase and the defendant denied. (o) Admittedly plaintiff purchased by registered deed dated 16.07.1988 and applied for mutation on 05.09.1988 on which order was passed on 22.09.1988, and correction slip was prepared on 23.09.1988 without giving one month statutory notice to the defendant who was in possession. Hence no reliance can be placed upon mutation proceeding or the order passed in it. (p) From the testimony of plaintiff’s witnesses including PWs.10, 11 and 13 it appears that papers relating to house and khund were with the vendors of the plaintiff, hence non-filing of those documents by the plaintiff leads to adverse inference against him. (q) Admittedly defendant is in possession of the suit premises and the earlier judgment of the appellate court has negatived the relationship of landlord and tenant between the parties, hence it is for the plaintiff to prove his title and right to recovery of possession. (r) Defendant has claimed possession over the suit land since 1923, hence it is for the plaintiff to establish his title and not the defendant. (s) Learned Munsif has held that plaintiff acquired title by registered sale deed dated 16.07.1988 (Ext.8) and declared defendant to be in possession over the suit premises as his licensee with his permission and awarded equitable relief of recovery of possession, but here it is found that plaintiff miserably failed to prove that the suit land ever formed part and portion of the khund owned by the vendor of the plaintiff. (t) Plaintiff failed to prove his title over the suit property and the finding of the trial court is erroneous and unsustainable. 16. Against the above mentioned judgment and decree of the lower appellate court, the plaintiff filed the instant second appeal (S.A. No.281 of 1999), which was admitted by a Bench of this court vide order dated 16.07.2002, after framing the following substantial questions of law:- (i) Whether the lower appellate court is justified in reversing the findings of the trial court based on oral and documentary evidence of the parties? (ii) Whether the defendant lost his defence by withdrawing the suit filed by him unconditionally on the principles of waiver, estoppel and acquiescence? 10 (iii) Whether the defendant has been able to prove his prima facie title to the disputed shop and failure on the part of the defendant to prove his better title renders him liable for eviction? (iv) Whether title can be acquired by an unregistered deed of gift and in view of the finding of the trial court about the gift deed being forged and fabricated, the lower appellate court is justified in reversing the finding of the trial court, on title? (v) Whether the lower appellate court committed error by not considering the cross appeal filed by the plaintiff? (vi) Whether the judgment passed by the lower appellate court is liable to be set aside on the ground that it failed to give any specific finding about the title of the suit premises, specially the alleged title of Himmat Atishbaz, through whom the defendant claims to have derived title? 17. Contesting the aforesaid substantial questions of law raised on behalf of plaintiff-appellant, learned counsel for the defendant- respondents argued that vide order of remand dated 12.08.1994 passed by the lower appellate court in Title Appeal No.27 of 1993 it is quite apparent that the remand was not an open remand and was only for limited purpose, as it was decided therein that there was no relationship of landlord and tenant between the parties and the trial court was directed to see only the question of title. Hence, he claimed that once ownership of the defendant with respect to the suit premises has also been decided vide impugned judgment and decree dated 30.06.1999 by the lower appellate court in Title Appeal No.45 of 1997, nothing remains to be decided now. 18. Learned counsel for the respondents further claimed that as per the judgment of remand dated 12.08.1994 passed in Title Appeal No.27 of 1993, the trial court was to consider only the question as to whether the plaintiff had title to the suit property and if so whether he was entitled to recovery of possession. He further averred that this claim of the plaintiff was falsified by Ext.13 which was a partition deed between the vendor of plaintiff and his co-sharers executed on 22.07.1988 in which the suit plot was not subject matter of partition and 11 only in the boundary of land included in the partition deed, plaintiff was shown. Hence it is claimed that the findings arrived at by the court of appeal below are findings of facts regarding title which cannot be interfered with in a second appeal under the provision of section 100 of the Code of Civil Procedure. 19. Learned counsel for the respondents also submitted that Ext.2 is the order sheet of Title Suit No.08 of 1989 which was withdrawn by them on 27.03.1989 as Title Suit No.05 of 1989 was already filed by the appellant and was pending, hence no adverse inference can be drawn by the said withdrawal. 20. So far the substantial questions of law no.(iii), (iv) and (vi) are concerned, they are on the question of title of the parties with respect to the suit properties, hence they are taken up together for consideration. The lower appellate court has taken much pains in considering as to whether the property claimed by the plaintiff was the same property regarding which the defendant also had claimed title and had arrived at an assumption that they were different properties because the plaintiff had claimed that the suit property was a part of the khund which belonged to his vendor but had failed to give the area and dimension of that khund. 21. The plaintiff had specifically claimed that the suit premises along with other properties belonged to one Noor Hassan and Rahat Hussain and others were his grand children who inherited the said properties. It was also claimed by the plaintiff that the said heirs, namely Rahat Hussain and others executed a deed of agreement for sale dated 28.04.1988 (Ext.3) with the plaintiff with respect to the suit premises and finally sold the suit premises to the plaintiff for a consideration of Rs.46,000.00 by registered deed dated 16.07.1988 (Ext.8). From the facts and circumstances of this case, it is quite apparent that one Receipt no.4713 of 28.05.1988 was issued in favour of the defendant and hence Miscellaneous Case no.07 of 1988 (Ext.18/A) was filed by the plaintiff 12 against the same in which notice dated 02.11.1988 was issued to the defendant and ultimately the said receipt was cancelled by the authorities concerned, as it was issued without any order of any authority. It is also apparent that the plaintiff applied for mutation on the basis of his purchase by registered document