IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.1 of 2008 Raj Kumar Sharma s/o Late Mehi Thakur resident of Village Jajpatti Pargana Saraisa P.O and P.S.Dalsingsarai Dist. Samastipur Defendant - Appellant- Appellant Versus 1. Himanshu Nayak 2. Sudhanshu Nayak 3. Navin Nayak 4. Anil Nayak All sons of late Hari Prasad Nayak 5. Mostt. Priyanada Devi w/o late Hari Pd. Nayak 6. Smt Rekha Devi w/o Naresh Prasad Gami All resident of Village Chak Lokman @ Dalsingsarai P.O and P.S.Dalsingsarai Dist. Samastipur Plaintiffs - Respondents-Respondents ----------------------- For the appellant: Mr Alok Kumar Sinha, Advocate ------------------- 04/ 15.02.2010 Heard learned counsel for the appellant. 2. This second appeal has been filed by the sole defendant - appellant-appellant challenging judgments and decree of both the learned courts below. 3. The matter arises out of Eviction Suit no.08 of 1988 which was filed by the plaintiffs-respondents-respondents for eviction of the defendant-appellant on the grounds of default in payment of rent, damage to the suit premises as well as expiry of the fixed period of tenancy vide Kirayanama dated 28.01.1983 (exhibit 5) and other ancillary reliefs. The said suit was decreed on contest on all the three grounds by learned Munsif, Dalsingsarai vide his judgment and decree dated 29.05.1990. 4. Against the aforesaid judgment and decree of the learned trial court, defendant-appellant filed Eviction Appeal no.05 of 1990 which was dismissed by the learned Additional District Judge I, Samastipur, vide his judgment and decree dated 20.11.2007. Against the aforesaid judgments 2 and decree of the learned courts below, the instant second appeal has been filed. 5. Learned counsel for the appellant vehemently challenges the judgments and decree of the learned courts below on three grounds, namely, (i) that the registered Kirayanama dated 28.01.1983(exhibit 5) was signed only by the defendant and not by the plaintiffs and hence under the provision of section 107 of the Transfer of Property Act it had no legal value and furthermore, the defendant having been compelled to sign on the said Kirayanama, the plaintiffs cannot take any advantage thereof; (ii) that the lease was claimed for a period from 01.01.1983 to 31.12.1987 vide Kirayanama(exhibit 5) and on its basis the learned courts below have discarded the oral evidence adduced by the defendant assuming it to be inferior in spite of the fact that Kirayanama was void and (iii) that on 28.04.1987 Rs 3,000/ was paid by the defendant to the plaintiffs as advance and all the rents were to be adjusted from it which was also apparent from the circumstances that the suit was instituted by the plaintiffs only after full adjustment of the said advance. 6. Considering the arguments of the learned counsel for the appellant as well as materials on record including the impugned judgments of the learned courts below, it is quite apparent that the relationship of landlord and tenant is not in dispute. So far the question of damage to the suit property as per provision of section 11(b) of the Bihar Buildings( Lease, Rent & Eviction) Control Act, 1982, (hereinafter referred to as’ the Act’ for the sake of brevity) is concerned, the learned court of appeal below has held that the defendant-appellant can not be made liable for deterioration in the suit 3 building in due course and hence the said issue was decided against the plaintiffs , against which no appeal has been filed by them. 7. So far the question of expiry of the fixed period of tenancy is concerned, plaintiffs had produced Kirayanama dated 28.01.1983(exhibit 5) which contained signature of the defendant only whereas the plaintiffs had not signed thereon. In the instant case, when the relationship of landlord and tenant has been admitted by the defendant, the said Kirayanama duly signed by the defendant clearly shows that at least he was well aware of the terms and conditions of the tenancy. Thus the said document was rightly considered to the said extent only by the learned court below. Furthermore, the defendant-appellant has miserably failed to prove by any valid and reliable material that he was compelled or coerced to sign on the said Kirayanama. 8. So far the question of default is concerned, both the learned courts below have specifically found that the defendant defaulted in payment of rent and hence he has become a defaulter and is liable to be evicted on that score. This issue has been countered by the defendant by claiming that he had paid Rs 3,000/- to the plaintiffs as advance on 28.04.1987 which had to be adjusted in the rent. The said payment of alleged Rs 3,000/- is not supported by any documentary evidence and only a few witnesses of the defendant has stated about the said payment. It may be noted in that regard that admittedly rent of the suit premises was Rs 225/- per month for which admittedly receipts were issued and hence it can not be legally assumed that defendant would pay advance of Rs 3,000/- without any receipt specifically when the plaintiffs have denied the payment of any advance 4 amount in their pleadings as well as in their evidence. 9. Both the learned courts below have very carefully gone into the pleadings and evidence of the parties and thereafter have come to concurrent findings of facts that the defendant has defaulted in payment of rent for more than two months and has become a defaulter. This Court in a second appeal under the provision of section 100 of the Code of Civil Procedure can not be legally justified in interfering with such concurrent findings of facts. 10. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it 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. shahid (S.N.Hussain, J)