Appeal from appellate decree no.367 of 1994 Against the judgment and decree dated 06.07.1994 passed by District Judge, Saran Chapra in Eviction Appeal No.04 of 1993 reversing the judgment and decree dated 30.09.1993 passed in Eviction Suit No.05 of 1984 passed by Munsif-IV, Chapra, Saran. ------- 1 (a). Rameshwar Prasad son of Late Jado Lal Sah, 1(b) Om Prakash son of Late Jado Lal Sah, Both residents of village-Dumarsan, Post Office Dumarsan Bangara, P.S. Mashrak, District-Saran. …Defendants-Respondents-Appellants. -Versus- 1(a) Dharmnath Sah, son of Late Yamuna Sah, resident of Village-Padmoul, Post Office-Arana, Dumarsan Dangra, Police Station-Mashrak, District-Saran. 1(b) Saraswati Devi, daughter of Late Yamuna Sah and wife of Saryug Sah, resident of village-Barhima, Police Station-Mohammadpur, District- Gopalganj. 1(c) Lakavati Devi, daughter of Late Yamuna Sah, wife of Ramdeo Sah, resident of village-Barheji, Police Station-Barauly, District-Gopalganj. 1(d) Umawati Devi, daughter of Late Umuna Sah, wife of Lalan Sah, resident of village-Seriya Police Station-Barauly, District-Gopalganj. 1(e) Kunti Devi, daughter of Late Yamuna Sah, wife of Rameshwar Sah, resident of village-Atauli, Police Station-Isuyapur, District-Saran. ..….Plaintiff-Appellant-Respodents 1st set. 2. Khalil Sain, son of Bhola Sain @ Maula Sain, resident of Village-Chand Kudariya, Police Station-Mashrakh, District-Saran. …….Defendant-Respondent-Respondent 2nd Set. ------- For the appellants : Mr. Shashi Shekhar Dwevedi, Senior Advocate. Mr. Arun Kumar Singh no.5, Advocate. For the respondents : M/s. Ashutosh Jha, Narendra Pandey & Bijay Kant Mishra, Advocates. ------ P R E S E NT HON’BLE MR. JUSTICE S.N.HUSSAIN ------- S. N. Hussain, J. This second appeal has been filed by the defendants 2nd party- 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 and suit of plaintiff-appellant- respondent 1st set was decreed. 2. The matter arises out of Eviction Suit No.05 of 1984 which was filed by plaintiff-appellant-respondents 1st Set for eviction of the defendants from the suit premises, namely a shop room over 16 dhurs of land bearing plot no.645, - 2 - khata no.27, Thana no. 06, Tauzi No.2246 situated in Mouza Fardahiyan under Masrakh Police Station within the district of Siwan for the following reliefs:- (a) Decree of eviction of defendants from the suit premises in favour of the plaintiff. (b) Decree of recovery of arrears of rent of Rs.150.00. (c) Cost of suit in favour of plaintiff. (d) Any other relief to which the plaintiff is deemed entitled. 3. The claim of the plaintiff was that he was owner of the suit premises and had inducted defendant no.1 on 01.08.1979 as tenant in the suit premises on a monthly rent of Rs.50.00, but subsequently from 01.09.1984 he stopped payment of rent and had sub-let the suit premises to defendant no.2. The plaintiff further claimed that he had bonafide personal requirement of the suit premises also. 4. On the other hand, the defendant no.2 contested the claim of the plaintiffs denying any relationship of landlord and tenant between the parties and claiming that the plaintiff was not even owner of the suit premises, hence, there was no question of tenancy or default in payment of rent. He further claimed that there was no question of any personal necessity of the plaintiff or partial eviction of the defendants nor there was any question of sub-letting of the suit premises by the defendant 1st party to defendant 2nd party. 5. Considering the pleadings of the parties, the trial court framed the following issues for deciding the suit: (i) Whether the suit filed by the plaintiff is maintainable? (ii) Whether the plaintiff has cause of action for the suit? (iii) Whether the suit is barred by provision of Limitation Act? (iv) Whether there is relationship of landlord and tenant between the plaintiff and the defendants? (v) Whether defendant no.1 had sub-let the premises to defendant no.2? - 3 - (vi) Whether the defendants have become defaulter liable to be evicted? (vii) Whether the plaintiff has personal requirement of the suit premises and whether partial eviction will satisfy the need of plaintiff? (viii) Whether the plaintiff is entitled to decree of eviction of defendants? (ix) Whether the plaintiff is entitled to receive arrears of rent? (x) Whether the plaintiff is entitled to any other decree? 6. After considering the arguments and evidence of the parties, Munsif-IV, Chhapra dismissed the suit ( T.S.No.05 of 1984) on contest with cost vide his judgment and decree dated 30.09.1993 after arriving at the following findings:- (a) There is no relationship of landlord and tenant between the plaintiff and defendants. (b) Prima facie, it does not appear that plaintiff is the owner of the suit premises. (c) The plaintiff failed to prove sub-letting of suit premises by defendant no.1 to defendant no.2. (d) Since there is no relationship of landlord and tenant, there is no question of default in payment of rent. (e) Since there is no relationship of landlord and tenant, there is no question of personal necessity or partial eviction. (f) The plaintiff is not entitled to any decree of eviction of defendants from the suit premises. (g) The plaintiff is not entitled to receive any rent or any arrears. (h) The plaintiff is not entitled to any relief. 7. Against the aforesaid judgment and decree of the trial court, the plaintiff filed Eviction Appeal No.04 of 1993 in which the lower appellate court considering the pleadings of the parties, framed following points for deciding the title appeal:- - 4 - (i) Whether the plaintiff is the owner of the suit premises and had inducted defendant no.1 therein as tenant at the rent of Rs.50.00 per month on 01.08.1979? (ii) Whether defendant no.1 has stopped payment of rent and has defaulted in payment of three months rent making him liable to be evicted? (iii) Whether defendant no.1 has sub-let the suit shop to defendant no.2 and defendant no.2 is residing therein? (iv) Whether the claim of defendant no.2 that he was the tenant of Nagendra Singh on the rent of Rs.60.00 per month is reliable? (v) Whether the judgment and decree of the trial court requires any interference? 8. After considering the arguments of the parties as well as the materials on record, the District Judge, Saran set aside the judgment and decree of the trial court and allowed the appeal on contest with cost vide his judgment and decree dated 06.07.1994 after arriving at the following findings:- (a) The question of title is not to be decided in this suit. (b) Plaintiff has been able to prove that he was the landlord of the suit premises. (c) Plaintiff has proved that he had inducted defendant no.1 as tenant. (d) Defendants have defaulted in payment of rent for three months from 01.09.1984. (e) Defendant no.1 has sub-let the suit premises by inducting defendant no.2 as sub tenant. (f) There is relationship of landlord and tenant between the parties. (g) The suit as framed is maintainable. (h) The plaintiff has cause of action for the suit. (i) The defendants are liable to pay all the arrears of rent to the tune of Rs.150.00 to the plaintiffs. 9. Against the aforesaid judgment and decree of the lower appellate court, defendant no.2 filed the instant second appeal which was admitted by a - 5 - bench of this court on 13.03.1997 after framing the following substantial questions of law:- (i) Whether non-consideration of all the documents and facts considered by the trial court affects the impugned order of the lower appellate court. 10. During the pendency of this second appeal the sole appellant (defendant no.2) as well as respondent no.1 (the sole plaintiff) died and their heirs were substituted respectively in this second appeal and they appeared and contested. However, in spite of notice respondent no.2 (defendant no.1) did not appear in this case. At the time when the final hearing of this second appeal started on 03.05.2010, learned counsel for the appellants raised further points claiming them to be substantial questions of law, which are as follows:- (ii) Whether in view of absolute lack of document and independent evidence, the relationship of landlord and tenant could be inferred between the plaintiff and defendant no.1 by the appellate court on the strength of prima facie title of plaintiff and surmises and conjectures? (iii) Whether non-filing of W.S. by defendant no.1 could be deemed to be admission of contents of plaint and his evidence could be disbelieved on that ground alone? (iv) Whether no evidence of subletting by defendant no.1 to defendant no.2 having been produced by plaintiff, nor considered by appellate court, it was entitled in law to record such finding and that too without considering the plea, evidence and submission of defendant no.2 regarding his tenancy with Nagendra Singh and others? (v) Whether a decree for eviction could be passed by appellate court without considering the question of default or subletting with reference to any evidence on record and simply assuming all those findings on the strength of prima facie title of plaintiff and that too, by ignoring crucial documents and evidence on record? - 6 - (vi) Whether the judgment of the appellate court is vitiated due to non-consideration of the reasonings of trial court while reversing its findings, specially with reference to possession as well as fraud of plaintiff as shown by Ext.B. 11. Learned counsel for the appellants ( defendant 2nd party) argued that the points formulated by the lower appellate court were wrong on facts as the ground for eviction were only default in payment of rent by defendant no.1 to the plaintiffs and sub-letting of the suit premises by defendant no.1 to defendant 2nd party. It was also claimed that defendant 2nd party was tenant of Nagendra Singh in whose favour there was a deed of transfer and hence the claim of adverse possession raised by the plaintiff cannot be held to be legal and valid, especially when the said Nagendra Singh was in possession of the suit premises through his tenant, namely defendant 2nd party. Hence, it was asserted that mere suspicion cannot be the basis of legal verdict as has been held by the Supreme Court in case of Mudhkar D. Shende Vs. Tarabai Shedage, reported in (2002) 2 SCC 85. 12. Learned counsel for the appellants (defendant 2nd party) also stated that the lower appellate court had arrived at the finding of relationship of landlord and tenant between the parties without considering the pleadings and evidence adduced by the parties, although the issues involved in the suit required elaborate consideration. He relied upon three decisions of the Supreme court in case of State of Punjab Vs. Mohinder Singh, reported in 2005(3) SCC 702 and in case of U.R. Virupakshappa Vs. Sarvamangala, reported in 2009 (2) SCC 177 as well as in case of Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi, reported in 2009(3) SCC 287. 13. Learned counsel for the appellants further argued that non-filing of written statement by defendant no.1 would not amount to admission of all the facts pleaded in the plaint by the plaintiff. In this regard, he relied upon a decision - 7 - of a division bench of this court in case of Smt. Ramsurat Devi Vs. Smt. Satraji Kuer and others, reported in AIR 1975 Patna 168 (D.B.). 14. On the other hand, learned counsel for the respondents 1st set (plaintiff) argued that the suit land was a raiyati land and the original raiyat executed sale deed dated 20.02.1959 in favour of one Bishwanath Singh who constructed a room and executed a sale deed dated 20.12.1972 in favour of Sarju Sah. It is also claimed that thereafter Sarju Sah was mutated with respect to the suit land in spite of objection raised by one Sheobalak Singh whose objection was rejected by the Circle officer and even his appeal was dismissed by the appellate authority. Learned counsel for plaintiff-respondent no.1 series further averred that the claim of defendant-appellants was that Sheobalak Singh executed sale deed dated 14.10.1976 in the name of Gautam Ojha, but it was a mere benami transaction in favour of Nagendra Singh, hence Gautam Ojha executed a ladavi deed dated 24.06.1989 in favour of Nagendra Singh who died issueless and his brother Jogendra Singh is landlord of defendant-appellant. Learned counsel for the plaintiff-respondent no.1 series submitted that this claim of defendant-appellant is absolutely baseless as Sheobalak Singh had no right, title and interest in the suit premises and hence he could not have transferred it to the plaintiffs-landlord or to his predecessors. 15. Learned counsel for plaintiff-respondent no.1 series further claimed that defendant no.1 (respondent 2nd set), namely Khalil Sain, did not file any written statement nor he contested the suit and it was only Jadolal Sah, defendant no.2 (appellant) who filed written statement contesting the relationship of landlord and tenant and claiming to be the tenant of Jogendra Singh, hence incidentally prima facie title and interest of the plaintiff was proved. He also averred that defendant 2nd party did not produce any documentary proof to show that he was tenant of Jogendra Singh, rather P.Ws. 1, 2, 3 and 9 fully proved that defendant no. 2 was sub-tenant of defendant no.1, but defendant no.1 did not - 8 - appear or contest either by way of filing his written statement or by way of deposition to falsify the same. He argued that the judgment of the lower appellate court is fully covered by finding of facts and hence this second appeal is not maintainable. In this connection, he relied upon a decision of the Supreme Court in case of V. Ramchandra Ayyar and another Vs. Ramalingam Chettiar and another, reported in A.I.R.1963 S.C. 302 as well as two decisions of this court in case of Gauri Shankar Prasad Singh and Ors Vs. Baid Nath Prasad Singh, reported in 2007 (1) P.L.J.R. 461 and in case of Dhuri Gope Vs. Arjun Kumar, reported in 2009 (1) P. L.J.R 606. 16. So far question nos. (i), (ii) and (iii) raised by the appellants are concerned, the court of appeal below had considered the question of title merely incidentally and rightly so as such question can be fully considered and decided only by a duly constituted title suit for the said purpose. In the instant case, admittedly the original raiyat executed sale deed dated 20.02.1959 in favour of one Vishwanath Singh who constructed a room and executed a sale deed dated 20.12.1972 in favour of Sarju Sah. The plaintiffs claimed to be the successor in interest of the said Sarju Sah. On the other hand, defendant 2nd party (appellants) claimed that Sheobalak Singh executed sale deed dated 14.10.1976 in the name of Gautam Ojha which was a benami transaction in favour of Nagendra Singh and hence Gautam Ojha executed ladavi on 24.06.1989 in favour of Nagendra singh who died and his brother Jogendra Singh became the owner of the suit premises and inducted defendant 2nd party as his tenant. The claim of defendants-appellants cannot be relied upon as they had failed to show from where Sheobalak Singh got the suit premises as even his objection before the Circle Officer and the appeal before the appellate authority was rejected and the name of Sarju Sah was duly mutated. In the said circumstances, the court of appeal below was justified in incidentally finding that the plaintiffs were the owners-landlords. This finding was not merely on the basis of suspicion rather the basis was the facts and - 9 - circumstances as well as specific pleadings of the parties. Hence, the decision relied upon in case of Madhukar D. Shende (supra) is not applicable to the facts and circumstances of the case. 17. So far the question of relationship of landlord and tenant between the plaintiff and defendant 1st party is concerned, it had been fully proved by the plaintiff, whereas the defendants failed to disprove the same as even defendant 1st party despite notice did not contest the said claim of the plaintiff, nor filed any written statement, hence the court of appeal below was quite justified in holding that there was relationship of landlord and tenant between the plaintiff and defendant no.1. 18. So far question no.(iv) raised by learned counsel for the appellants is concerned, the court of appeal below in paragraph 10 of his judgment considered the question of sub-letting and found that P.Ws. 1, 2, 3 and 9 clearly proved that defendant 2nd party was the sub-tenant of defendant no.1 and defendant no.1 never falsified the said claim. Furthermore, no documentary proof was produced by defendant 2nd party that he was tenant of Jogendra Singh, especially when it has been incidentally found above that even the alleged title of Jogendra Singh could not be proved by defendant 2nd party. Hence, this point raised by the appellants also fails. 19. So far question no. (v) raised by learned counsel for the appellants with respect to default in payment of rent by defendant 1st party to the plaintiff is concerned, the claim of the plaintiff regarding non-payment of rent for three months from 01.09.1984 has not been denied by the tenant, namely defendant 1st party. Furthermore, even defendant 2nd party (appellants) never claimed that the rent was ever paid, rather they were claiming that there was no occasion to pay any rent, hence there cannot be any question of non-consideration of evidence on that score. Hence, this point raised by learned counsel for the appellants also fails. - 10 - 20. So far question no.(vi) raised by learned counsel for the appellants is concerned, Ext.-B is the entry of Khesara no.645 in Register-II and there is no valid or reliable evidence to show that any fraud was played by the plaintiffs in that regard, especially when their predecessor-in-interest, namely Sarju had been duly mutated on contest and the appeal filed against the mutation of his name was also rejected by the appellate authority. This aspect of the matter was not properly considered by the trial court and hence the court of appeal below was quite justified in reversing the judgment and decree of the trial court. 21. So far the case laws relied upon by learned counsel for the appellants are concerned, the decisions of the Supreme Court in case of State of Punjab (supra) as well as in case of U.R. Virupakshappa are with respect to irrelevant and inadmissible materials and evidence relied upon by the lower appellate court whereas in case of Narendra Gopal Vidyarthi (supra) it has been held that findings of facts must be on the basis of evidence on record. These case laws are not applicable to the facts and circumstances of this case. Similarly, the decision of the division of this court in case of Smt. Ramsurat Devi (supra) cannot have any legal effect in the special facts of this case as defendant no.1 was claimed to be the tenant of the plaintiff, but he never appeared or contested the suit inspite of notices being validly served upon him. 22. From the aforesaid facts and findings of this court, it is quite apparent that the judgment of the lower appellate court is not beyond the materials and evidence on record or against the settled principles of law, as discussed in the above paragraphs of this judgment. 23. Considering the issues involved in its entirety in view of the aforesaid findings, this court holds that the questions raised by the appellants are not substantiated by law on the basis of which the impugned judgment and decree of the lower appellate court could be set aside. - 11 - 24. Accordingly, this court does not find any merit in this second appeal which is dismissed. However, there will be no order as to costs. ( S.N.Hussain,J.) Patna High Court, Dated, the 03.12.2010. N.A.F.R. Sunil/