APPEAL FROM APPELLATE DECREE No.39 OF 1999 *** Against the judgment and decree dated 11.09.1998 passed by Sri Narendra Kumar Srivastava, 5th Additional District Judge, Siwan in Title Appeal No. 05 of 1992(94/1997) reversing the judgment and decree dated 29.02.1992 passed by Sri Suraj Bansh Prasad, 2nd Munsif, Siwan in Eviction Suit No. 04 of 1986. *** Awadh Kishore Singh, son of Raghunath Singh, resident of village-Rampur Pargana-Barai, P.S. -Basantpur, District-Siwan. ………Defendant-Respondent-Appellant. V e r s u s Radheshwar Pandey son of Narsingh Prasad Pandey, resident of village-Kishnpur, Pargana-Barai, P.S.- Basantpur, District-Siwan. .…..…..Plaintiff-Appellant-Respondent. For the appellant : M/s Jitendra Singh and R.K. Singh, Advocates. For the respondent : Mr. Binod Kr. Singh, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain, J. This second appeal has been filed by the sole defendant-respondent-appellant challenging the judgment and decree of the learned lower appellate court by which the judgment and decree of the trial court was reversed. 2. The matter arises out of Eviction Suit No. 04 of 1986, which was filed by the sole plaintiff-appellant-respondent for declaration that the defendant was the tenant of plaintiff in the suit shop at the rent of Rs.60.00 per month and also for his eviction on the ground of default and further for realization of arrears of rent to the tune of Rs.1,200.00 and for other ancillary reliefs. 3. The claim of the plaintiff was that the ex-landlords settled the land in question in favour of Babu Amrendra Bahadur Sinha by hukumnama dated 17 Baishakh 1350 Fasli and the said settlee paid rent and remained in possession over the settled land and after vesting of Zamindari in the State of Bihar also he was duly recorded in the government records and used to pay rent. It was also claimed that subsequently in the year 1983 the said owner Babu Amrendra Bahadur Sinha entered into an agreement for sale of the suit premises with the plaintiff, in part performance thereof advance was paid by the plaintiff whereafter possession was also given to him and thereafter while he was seriously ill at Delhi, at his instruction his son Brajendra Bahadur Sinha executed sale deed on 25.05.1986 in favour of 2 plaintiff with respect to the suit land and got it registered. It was further claimed by the plaintiff that the said sale deed was also witnessed by his father and brother and subsequent thereto the father, namely Amrendra Bahadur Sinha also died. It was also asserted that after coming into possession plaintiff constructed shop and inducted the defendant in the same shop room on 01.06.1984 at the rent of Rs.60.00 per month. It was further claimed by the plaintiff that the defendant paid rent up till the month of February, 1985 but the defendant did not pay any rent from March, 1985 onward to the plaintiff and became a defaulter due to which the plaintiff was constrained to file the suit on 25.11.1986 for defendant’s eviction. 4. On the other hand, the defendant denied the claim of settlement in favour of the vendor of the plaintiff as well as his possession and entries in the relevant records. The defendant denied that Amrendra Bahadur Sinha was either ill or had ever entered into an agreement for sale with the plaintiff or had ever handed over possession of the suit premises to the plaintiff. It was claimed that the plaintiff neither came in possession over the suit land nor constructed any shop room nor he ever inducted the defendant as a tenent in the shop. It was also asserted by the defendant that after partition among the co-sharer ex-landlords the suit land along with other lands fell into the share of Indra Bhushan Prasad Pandey, who settled it in the name of Sri Bhagwat Prasad, who was benamidar of Raghunath Prasad Pandey who was in actual physical possession of the said land from the date of settlement and he was paying rent to the ex-landlords and was getting rent receipts. It was also stated that the said Sri Indra Bhushan Prasad Pandey died before abolition of Zamindari and after his death his widow Radhika Devi submitted return with respect to the suit land in the name of Bhagwat Prasad Pandey the said benamidar of Raghunath Prasad Pandey and accordingly Register-II was also prepared in the name of said benamidar. It was further claimed that after the death of Bhagwat Prasad Pandey his sons executed a registered deed of relinquishment on 29.08.1984 with respect to the suit land in favour of the son of Raghunath Prasad Pandey, namely, Chandra Mauli Prasad Pandey and after the death of Chandra Mauli Prasad Pandey his three sons partitioned his lands out of which the suit land along with some other lands fell into the share of Umesh Kumar, who due to necessity of money executed a sale deed in favour of the defendant on 29.06.1985 and got it registered and the defendant after being put in possession thereof constructed a palani-numa room and opened his shop of coal therein. Hence, according to the defendant he was in possession over the suit premises on the basis of 3 his own right and title and was never a tenant of the plaintiff and hence neither there was any relationship of landlord and tenant between the parties nor there was any question of default in payment of rent on the basis of which his eviction could be sought. 5. On the basis of the aforesaid pleadings of the parties the learned trial court framed the following issues: (i) Is the suit as framed and filed maintainable? (ii) Has the plaintiff valid cause of action for instituting the suit? (iii) Is the suit barred by principle of limitation? (iv) Is there relationship of tenant and landlord in between the defendant and plaintiff? (v) Can a decree for eviction be passed without declaration of title of plaintiff on the suit land? (vi) Is the court fee paid by the plaintiff sufficient? (vii) Is the suit beyond the pecuniary jurisdiction of this court? (viii) Has defendant title and possession over the suit land? (ix) To what relief and reliefs is the plaintiff entitled? 6. On the basis of said issues, evidence were led by the parties and after considering the said materials and arguments made on behalf of the parties, the learned Munsif-II, Siwan, vide his judgment and decree dated 29.02.1992 dismissed the suit on contest with cost after arriving at the following findings: (a) The plaintiff has failed to establish his case by oral and documentary evidence that Amrendra Bahadur Sinha was real owner and title holder of the suit land and that the sale deed (Ext.3) executed by son of Amrendra Bahadur Sinha in his life time in favour of the plaintiff was valid and genuine document. (b) The defendant has succeeded to prove his case by oral and documentary evidence on the point of the merit of his case and hence the defendant has got title and possession over the suit land. (c) Since the suit shop was not constructed by the plaintiff, there is no question that it was given to the defendant by the plaintiff on rent for doing his business. (d) There is no relationship of landlord and tenant between the parties. (e) The plaintiff has failed to prove his right, title and possession over the suit land and the shop constructed on it and hence the plaintiff is not entitle to claim for eviction of the defendant from the suit premises. 4 (f) Plaintiff has not succeeded in proving his case that his vendor Amrendra Bahadur Sinha had legal right, title and possession over the suit land and the sale deed (Ext.3) did not confer any title. (g) The sale deed (Ext.3) on the basis of which the plaintiff is basing his claim has not been executed by Amrendra Bahadur Sinha, rather in his life time it was executed by his son allegedly with his permission, which is not proved to be legal. (h) Plaintiff has failed to establish his case on the point of possession after the execution of the sale deed (Ext.3). (i) Neither the suit land was in possession of the plaintiff nor he has constructed the disputed shop over the suit land. (j) The cause of action for filing this eviction suit had not arisen to the plaintiff and the plaintiff is not entitled to get the relief or reliefs as claimed because the suit is not maintainable as framed and filed. 7. Against the aforesaid judgment and decree of the trial court dated 29.02.1992 the plaintiff filed Title Appeal No. 05 of 1992 (94/1997) before the learned court of appeal below, which proceeded for deciding the title appeal and after considering the pleadings and evidence of the parties on the said issues, the learned Additional District Judge- 5, Siwan, allowed the title appeal on contest with cost vide his judgment and decree dated 11.09.1998 and after setting aside the judgment and decree of the learned trial court decreed the suit and claim of the plaintiff after arriving at the following findings: (a) Exts.1 to 1/F are the rent receipts granted by the State of Bihar in the name of Amrendra Bahadur Sinha after vesting of Zamindari into the State of Bihar and after full verification, Register-II has been prepared in his name with respect to the land taken by him through settlement vide Hukumnama (Ext.14), which fully confirms the settlement in his favour. (b) Since the defendant has relied upon Ext.D. filed by him, it is binding upon him and the said deed fully supports the plaintiff’s claim of settlement by the ex-landlords in favour of Amrendra Bahadur Sinha by Hukumnama (Patta), and is also supported by Zamindari Receipts (Ext.5 series) and hence the defendant cannot legally deny the settlement. 5 (c) Nowhere in the pleadings or in the evidence the defendant had been able to show what fraud had been committed in Hukumnama (Ext.14) or in the Zamindari Receipts (Ext.5 series) although the onus was squarely upon the defendant to establish his claim of fraud beyond reasonable doubt. (d) From the evidence on record, it is not proved that Ext.14 and Ext.5 series were forged and fabricated. (e) Not a single Zamindari Receipt had been produced by the defendant to show that Indra Bhushan Prasad Pandey was the sole owner of the plot in question, which squarely falsified the baseless plea of defendant that there was a partition among the ex-landlords with respect to the suit plot falling in the share of Indra Bhushan Prasad Pandey. (f) On the other hand the Rent Receipts, Jamabandi, Register-II clearly showed that the return was submitted by ex-landlords at the time of vesting of intermediary interest into the State of Bihar was in the name of Amrendra Bahadur Sinha and he was in possession as a raiyat. (g) Ladavi (Deed of Relinquishment) cannot create or establish any title which has to be proved by a document of title and the same is not helpful for the defendant. (h) The decision of Patna High Court in case of Smt. Purni Devi and others vs. Shibu Mahton and others, reported in A.I.R. 1971 Patna 249 fully establishes that the entries in khatiyan as to occupation of particular person raises a presumption as to continuity of possession of that person and the said presumption is not neutralized by payment of rent by someone else as per section 114 of the Evidence Act. (i) The vendor of the plaintiff had deposed in his evidence regarding the manner of his title after the death of his father and the legality of the deed in question executed by him when his father was seriously ill. (j) The plaintiff has proved his title over the suit land and the shop and has also proved that defendant is his tenant, hence the suit is maintainable and the plaintiff is entitled for recovery of possession over the suit premises from the defendant and also for arrears of rent. 6 8. Against the aforesaid judgment and decree of the learned court of appeal below, the defendant has filed the instant second appeal on 02.02.1999, which was admitted by this court on 08.04.2002 framing the following substantial question of law: “Whether the lower appellate court is legally justified in reversing the judgment of the trial court without discussing the evidence in detail and reversing the findings of the trial court without assigning any reason much less cogent reason?” 9. No further substantial question of law has been framed on behalf of the appellant nor this court finds any other substantial question of law involved in the instant case. So far the aforesaid substantial question of law framed at the time of hearing of the second appeal under Order XLI Rule 11 of the Code of Civil Procedure is concerned, it is quite apparent that in one substantial question of law in fact two questions have been merged, namely (i) that the lower appellate court reversed the judgment and decree of the trial court without discussing the evidence in detail and (ii) that the findings of the trial court was reversed by the lower appellate court without assigning any reason much less any cogent reason. 10. So far the first part of the said substantial question of law is concerned, it has to be noted that the claim of the plaintiff was that the ex-landlords settled the land in question in favour of Babu Amrendra Bahadur Sinha by Hukumnama of 1350 Fasli and after vesting of Zamindari in the State of Bihar the said Babu Amrendra Bahadur Sinha was recorded in the government records and paid rent, whereafter in the year 1983 he entered into agreement for sale of the suit premises with the plaintiff and in part performance thereof advance was paid by the plaintiff who was put in possession thereof and thereafter while he was seriously ill at Delhi, at his instruction sale deed was executed by his son in favour of the plaintiff in the year 1986. It was further claimed that after coming in possession he constructed shop and inducted the defendant therein as tenant in the year 1984 at the rent of Rs.60.00 per month but the defendant paid rent only till February, 1985 and stopped payment of rent thereafter and hence the plaintiff filed the suit in the year 1986 for eviction of the defendant. 7 11. On the other hand, the defendant denied the claim of settlement in favour of Babu Amrendra Bahadur Sinha and also claimed that the sale deed in favour of the plaintiff was bad and he never came in possession therein nor he constructed any shop nor he inducted the defendant as a tenant therein. He further claimed that after partition among the co-sharer ex-landlords the suit land fell into the share of Indra Bhushan Prasad Pandey, who settled it in the name of Sri Bhagwat Prasad, the benamidar of Raghunath Prasad Pandey, who came in actual physical possession of the said land and at the time of vesting of Zamindari the widow of Sri Indra Bhushan Prasad Pandey submitted return in the name Bhagwat Prasad Pandey, whereafter the sons of Bhagwat Prasad Pandey executed deed of relinquishment on 29.08.1984 with respect to the suit land in favour of Chandra Mauli Prasad Pandey the son of Raghunath Prasad Pandey after whose death his three sons partitioned his lands out of which the suit land along with some other lands fell into the share of Umesh Kumar, who sold the said land to the defendant in the year 1985 by registered document, whereafter the defendant constructed a palani-numa room and opened his shop of coal therein. Hence, the claim of the defendant was that he was not a tenant, rather he was in occupation of the suit land in his own right. 12. Ext. H is the return which shows the name of Bhagwat Prasad Pandey in plot no.252 and not in the suit land bearing plot no.251 measuring 2 katha 9 dhur which is in the name of Babu Amrendra Bahadur Sinha, which is also supported by Ext.14. This Ext.H, which is a document of defendant himself clearly falsifies his specific claim in the written statement that ex-landlord never settled any land to Babu Amrendra Bahadur Sinha. Hence it is quite apparent that the plaintiff purchased the land from the person in whose favour the return was submitted with respect to the suit land. This fact is also fully supported by Ext.14, which is Hukumnana of 1350 Fasli. Exts.5, 5/a and 5/b are three parts of Register-II out of which Ext.5 is with respect to Jamabandi No.127 of plot no.251 in the name of Babu Amrendra Bahadur Sinha whereas Exts.5/a and 5/b are with respect Jamabandi No.133 and 169 with respect to plot no.252 in the name of one Bhagwat Prasad and Bhagwat Singh, respectively. But there is no Register-II in the name of Bhagwat Prasad Pandey although defendant’s claim is based on the deeds of relinquishments executed by the sons of Bhagwat Prasad Pandey. Furthermore, the son of Bhagwat Prasad Singh deposed as DW.10 stating that his father had no land in plot no.251 hence neither any return nor any Register-II nor any 8 Jamabandi is in the name of Bhagwat Prasad Pandey or Raghunath Prasad Pandey with respect to the suit land. On the other hand Exts.14, 5 series and 3 and the return, Jamabandi, Register-II, and government receipts clearly being in the name of Babu Amrendra Bahadur Sinha, fully proved settlement of lands of plot no. 251 in his favour on the basis of which transfer was made in favour of the plaintiff. The documents of the defendant himself falsified his claim as apart from Ext.H the return which completely disproved his claim as stated above, Ext.D produced by the defendant is a sale deed executed by Babu Amrendra Bahadur Sinha and Ext.G is a deed of correction with respect to portions of plot no.251, which themselves fully proved settlement of the said plot in favour of Babu Amrendra Bahadur Sinha. Furthermore, although in paragraph 10 of the original written statement the defendant claimed that Babu Amrendra Bahadur Sinha had got no settlement but in the additional written statement the defendant took contradictory stand and admitted that the suit land was settled in favour of Babu Amrendra Bahadur Sinha. Furthermore D.W.10, who is a boundary raiyat deposed on behalf of the defendant but clearly supported the plaintff’s claim that plot no.251 was settled in favour of Babu Amrendra Bahadur Sinha. 13. The appellant (defendant) had claimed here that Exts. J, K, L, M, N, O and P were not considered by the learned court of appeal below although they were considered by the trial court. Ext.5 is order dated 11.11.1987 passed in M.A. No. 43 of 1987 by which the learned District Judge, Siwan refused interim injunction for restraining defendant from changing the nature of the suit premises. However, the said miscellaneous appeal was finally dismissed by the said court on 18.12.1987 and hence Ext.5 being an interlocutory order had no bearing on the title suit out of which the miscellaneous appeal had arisen. Ext.K is the order sheet of Tanaza no.1 of 1987 by Consolidation Officer rejecting the objection of the plaintiff and directing for recording of defendant’s name. This order was challenged in appeal before the Deputy Director of Consolidation, which is still pending due to government notification hence it cannot be relied upon and in any view of the matter it is not a document of title nor it has attained finality. Ext.L is order dated 13.04.1987 passed by S.D.O., Siwan in a proceeding under section 144 of the Code of Criminal Procedure in Case No. 472 of 1987. It is also not a document of title and has no bearing on the instant case. Ext.L/1 is order dated 22.02.1986 passed by Circle Officer in Mutation Case No. 1170 of 1985-86 by which the name of Babu Amrendra Bahadur Sinha was mutated without any objection raised by anyone 9 with regard to 10 dhurs of plot no.251. The plaintiff’s claim is that this document was created by fraud but in any view of the matter there was no consideration therein with respect to merit or title of the said Babu Amrendra Bahadur Sinha and hence it has no bearing on the question of title. Furthermore, the said order was based on report of Halka Karamchari dated 22.02.1986 (Ext.10) but that was with respect to Bhagwat Prasad for Jamabandi No. 169 and not for Jamabandi No.127. Ext.L/2 is order dated 28.11.1986 passed by Circle Officer in M.A. No. 19 of 1986-87 disposing it of as barred by res-judicata, as the matter had been decided in Mutation Case No. 1170 of 1985-86 (Ext.L/1) and hence this order has also no bearing on the question of title. Ext.M is the certified copy of suit register regarding which the suit was filed by Raghunath Prasad Pandey, but it is sans any detail of claims or subject matter and hence it is absolutely irrelevant for the purposes of this case. Ext.N is a revisional survey map as per revisional survey khatiyan (Ext.9) but it has got no relevance as settlement in favour of Babu Amrendra Bahadur Sinha had been proved. Ext.O is a memo of Title Appeal No. 14 of 1987 filed by Laxmi Sah and Jitan Sah who are neither title holders nor are parties to the instant case hence the same is also absolutely irrelevant. Ext. P is revisional survey khatiyan and is the same as Ext.9 and hence when the learned court of appeal below considered Ext.9 it will be deemed that it has considered Ext.P also. In the said circumstances, it is quite apparent that these documents were not at all relevant for the propose of deciding the title of the parties and hence they were not required to be considered by the learned court of appeal and the learned trial court misdirected itself by relying on those documents while deciding the title of the parties. 14. The learned trial court misdirected itself by rejecting the Hukumnama in favour of Babu Amrendra Bahadur Sinha (Ext.14), although it was admitted in evidence without objection from the defendant and in the additional written statement, the said settlement was admitted by the defendant which was also supported by the evidence of the defendant himself. The learned trial court disbelieved Ext.3 the registered deed in favour of the plaintiff only on the ground that ailment of Babu Amrendra Bahadur Sinha was not proved for the period when his son executed the said deed in favour of the plaintiff. The ailment of Babu Amrendra Bahadur Sinha was fully proved by the plaintiff by his oral and documentary evidence and as a result of the said ailment, the said Babu Amrendra Bahadur Sinha died subsequently which is not in dispute. It is also not in dispute that no objection has 10 ever been raised by any of the heirs and legal representatives of Babu Amrendra Bahadur Sinha against the said sale in favour of the plaintiff vide Ext.3. Hence, once the title of Babu Amrendra Bahadur Sinha has been fully established, Ext.3 could have been challenged only by his heirs and legal representatives but none of them ever raised any such objection to the said sale deed, which is thus legal, valid and proper conferring full title upon the plaintiff. Hence the learned court of appeal below rightly decided the issue after properly discussing the entire matter in detail in paragraphs 15, 16, 22 and 23 of the judgment under appeal while looking into the title of the parties incidentally, about which it had full jurisdiction. 15. The learned court of appeal below also considered the relationship of landlord and tenant between the parties and found on the basis of evidence adduced by them that there was relationship of landlord and tenant between them.