IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.3 of 2007 1. Rajendra Prasad s/o Late Lakhi Chand Sao 2. Naresh Prasad 3. Umesh Prasad both sons of Rajendra Prasad All are resident of Village Aliganj Pargana Somai P.S.Chandradeep (Sikandara) Dist. Jamui Plaintiffs - Appellants- Appellants Versus Pramod Kumar s/o Banarsi Prasad resident of Village Aliganj Pargana Somai P.S.Chandradeep Dist. Jamui Defendant - Respondent-Respondent ----------------------- For the appellants: Mr Gajendra Jha, Advocate ------------------- 07/ 16.02.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by the plaintiffs - appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Eviction Suit no.02 of 1997 which was filed by the said plaintiffs for eviction of the sole defendant- respondent-respondent from the suit premises on the ground of default in payment of rent as well as bonafide personal requirement of the plaintiffs and other ancillary relifs. The said suit was dismissed on contest by the learned Munsif, Jamui vide his judgment and decree dated 20.12.2001 after coming to the specific findings that although the plaintiffs had title over the suit premises but there was no relationship of landlord and tenant between the parties. 4. Against the aforesaid judgment and decree of the learned trial court, plaintiffs-appellants filed Eviction Appeal no.01 of 2002 which was also dismissed by the learned District Judge, Jamui, vide his judgment and decree dated 11.08.2006 affirming the findings of the trial court with - 2 - regard to absence of relationship of landlord and tenant between the parties and holding that the plaintiffs have failed to prove their title over the suit property. However the trial court did not debar the aggrieved party to file a fresh suit for title and recovery of possession. Against the aforesaid judgments and decree of the learned courts below, the plaintiffs-appellants have filed the instant second appeal. 5. Learned counsel for the appellants vehemently challenges the judgments and decree of the learned courts below but from the arguments as well as materials on record including the impugned judgments and decree, it is quite apparent that after considering in detail the pleadings and evidence of the parties, both the learned courts below have come to a concurrent finding of fact that there was no relationship of landlord and tenant between the parties. In the said circumstances, this court hearing a second appeal under section 100 of the Code of Civil Procedure can not interfere with the aforesaid finding of fact about absence of relationship of landlord and tenant between the parties. Hence there was no question of payment of rent or personal requirement of the plaintiffs as per the provision of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982. 6. So far the question of title is concerned, the learned trial court has given its finding in favour of the plaintiffs whereas the learned lower court had given its finding against the plaintiffs. Since the learned courts below were considering eviction suit, they could not have decided the question of title of any of the party and finding given by them with regard to the title is merely incidental in nature having no effect on the right or title of any of the party. - 3 - 7. 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 at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. However, the plaintiffs-appellants will be at liberty to file a fresh suit with respect to the suit property for declaration of their title and recovery of possession and if such a suit is filed it has to be decided independently on its own merit without being influenced one way or the other either by the order of this court or by the impugned judgments of the learned courts below. If such a suit is filed it would require an early disposal by the court concerned as the dispute is pending since 1997. shahid (S.N.Hussain, J)