IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.63 of 2006 Robin Ray, son of late Shakuni Ray, resident of Mohalla Chhoti Keshopur, Gurudwara Road, P.O. and P.S. Jamalpur,District Munger ….Defendant-Respondent-Appellant versus 1. Quamrul Hoda, President of Anjuman Ittehad Millat Jamalpur, son of Late Md. Idris of Mohalla Walipur, P.O. and P.S. Jamalpur, District Munger …Plaintiff-Appellant-Respondent Ist Party 2. Md. Parvej Hassan, Secretary, Imam Khalasi, Mohalla Mohanpur, P.O. and P.S. Jamalpur, son of Md. Amin Hassan of Khalasi Mohalla Khalasi Tola, District Munger. …Plaintiff-Respondent- Respondent 2nd party. …….. For the Appellant : M/s Sushmita Mishra and Surya Narayana Sah, Advocates. For Respondent no.1:M/s Abdul Mannan Khan and Md. Najmul Hoda, Advocates. …….. 09/ 18.12.2008 Heard learned counsel for the appellant and learned counsel for respondent no.1. 2.This second appeal has been filed by the defendant-respondent-appellant against the judgment and decree of the learned court of appeal below. 3. The matter arises out of Title Suit No. 15 of 1985, which was filed by the sole plaintiff-appellant- respondent no.1 for eviction of the appellant on the ground of default in payment of rent by the defendants and personal necessity of the plaintiff. 4. The said eviction suit was dismissed on contest by the learned subordinate Judge-VI, Munger vide judgment - 2 - and decree dated 16.03.2002. Against the aforesaid judgment and decree of the trial court, the plaintiff filed Eviction Appeal No.01 of 2002, which was allowed on contest by the learned Additional District Judge-Fast Track Court II, Munger, vide his judgment and decree dated 05.01.2006 setting aside the judgment and decree of the trial court and decreeing the eviction suit. 5. The claim of the plaintiff (respondent no.1) was that the grand father of defendant no.1-appellant , namely, Raghubir Rai was his tenant since the year 1963 vide Kiraynama (Ext.A) executed by them and after his death in the year 1982, his son Shakuni Rai stepped in his shoes and entered into the suit premises but did not pay any rent. Hence, the said eviction suit was filed against the said Shakuni Rai. However, after the death of Shakuni Rai, the appellant was substituted in place of his father Shakuni Rai. 6. On the other hand, claim of defendant no.1- appellant is that Raghubir Rai or Shakuni Rai were never tenants of the plaintiff, rather they were in adverse possession of the suit premises since 1951. It was also claimed that Shakuni Rai died during the pendency of the - 3 - suit leaving behind a widow and three sons but in the eviction suit only one son Robin Ray (appellant) was substituted and other heirs of Shakuni Rai were not substituted due to which there was defect of party also. 7. So far last point raised by learned counsel for the appellant is concerned, admittedly appellant Robin Ray is the son of Shakuni Rai and hence he represents estate of his father Shakuni Rai and there is no question of any abatement of the suit or the appeal in the said circumstances. Furthermore, the eviction appeal was decided along with the title appeal, in which all the said heirs of Shakuni Rai were parties and both suits were decided by a common order after hearing all the said parties. 8. The learned court of appeal below very carefully considered the question raised by the defendant- appellant regarding his title and adverse possession and found that there was no material at all to substantiate the said claim nor the requirement with regard to any adverse possession has been proved. By Ext. N, which is a decision in a suit of 1952, the claim that the father of the defendant was in occupation from the year 1951 was clearly falsified, - 4 - whereas, on the other hand, the plaintiff had been able to prove his right, title and interest over the suit premises by valid documentary evidence i.e. Kiraynama (Ext. A), Ext. B series, Ext. G series and Ext. K, which also proved relationship of landlord and tenant between the parties. 9. Furthermore, the defendant had, admittedly, not paid rent of the suit premises to the plaintiff and hence in view of the aforesaid finding that there was relationship of landlord and tenant between the parties the defendant was clearly a defaulter. Furthermore, the plaintiff also raised a claim of personal necessity but there is nothing on behalf of the defendant against the said plea. 10. In the said circumstances, the learned court of appeal below rightly came to the conclusion that the defendant was a defaulter for several months and the plaintiff had bona fide personal necessity of the suit premises. 11. So far the question of partial eviction raised by the learned counsel for the appellant is concerned, the law is well-settled that when the claims of the plaintiff with regard to personal necessity and default both are decreed, - 5 - there will be no occasion for considering the question of partial eviction. However, in paragraph no.13 of its judgment the learned court of appeal below has specifically considered the matter holding that partial eviction of the suit premises will not serve the purpose and need of the plaintiff. 12. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment and decree of the learned court of appeal below and, accordingly, this second appeal is dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )