APPEAL FROM APPELLATE DECREE NO.234 OF 2007 ---- Against the judgment and decree dated 24.08.2007 passed by learned Additional District Judge-cum-Fast Track Court No. II, Munger, in Title Eviction Appeal No.09 of 2005 affirming the judgment and decree dated 29.06.2005 passed by learned Munsif, I, Munger in Eviction Suit No.03 of 2004. ---- Mohammad Rustam son of Md. Subhan, resident of Village:- Rampur Bisay, P.O. Makba, District-Munger. At present resident of Village-Gazipur Lurdu Chowk, P.O.-Gazipur, P.S.-Tarapur, District:- Munger. --Defendant-Appellant-Appellant. Versus Anwar Ahmad son of Late Mahamid Hussain, resident of Village:- Khanpur, Milki, P.O.-Gazipur, P.S.-Tarapur, District- Munger. -- Plaintiff-Respondent-Respondent. ---- For the appellant : Mr. S.S.Dwivedi, Senior Advocate Mr. Shambhu Sharan Singh, Advocate For the respondent : M/s Ashutosh Jha, B.K.Mishra & N Pandey, Advocates ---- P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN ---- S.N.Hussain,J. This second appeal has been filed by the sole defendant-appellant- appellant challenging judgments and decree of both the learned courts below. 2. The matter arises out of Eviction Suit No.03 of 2004 which was filed by sole plaintiff-respondent-respondent for the following reliefs with regard to a Khaparposh house with land measuring 8 decimals out of Plot no.251, Khata no.60 situated in Village Gazipur, P.S.Tarapur in the district of Munger: (a) Declaration that the plaintiff is the owner/landlord of the suit house and the defendant is his tenant. (b) For a decree of arrears of rent payable by the defendant and eviction of the defendant within the time fixed by the court. (c) Direction to get the premises vacated through the process of the court if the defendant fails to vacate it within the time fixed. (d) Any other relief or reliefs to which the plaintiff is deemed entitled. 3. The claim of the plaintiff was that he was the owner of the suit house which he constructed in 1965 and put the defendant in possession of a - 2 - portion of the suit premises as tenant thereof in the year 1990 on a monthly rent of Rs.200.00, whereafter the defendant started his furniture business therein and paid rent up till August, 1995 at the rate of Rs.200.00 per month and thereafter as per agreement between the parties, the defendant started paying rent at the rate of Rs.500.00 per month till the end of year 2000, whereafter in 2001, the defendant took the entire suit house on rent from the plaintiff and the rent was fixed at Rs.1500 per month, which the defendant regularly paid rent till September, 2002 but thereafter stopped payment of rent and as such till the date of filing of the suit the arrear of rent was Rs.16,500.00, but the defendant even after repeated request neither paid the arrears of rent, nor vacated the suit premises as the plaintiff required it for his personal necessity of starting his own business and hence the plaintiff sent pleader’s notice to the defendant on 15.10.2003 and 11.01.2004, but the defendant did not heed and hence the suit was filed. 4. On the other hand, the defendant filed his written statement and claimed that the suit was not maintainable and the plaintiff had no cause of action as there was no relationship of landlord and tenant between them and the defendant had his own title over the suit premises on the basis of purchase of suit land from the rightful person and construction of the house by the defendant in which he was residing as the owner thereof. It was further claimed that the maternal grand father of the plaintiff Sk.Ali Nazir had only 1/4th share in the suit plot and he had three daughters including the plaintiff’s mother and the said daughters inherited the said property to the extent of their shares out of whom the mother of the plaintiff Bibi Sogra Begum left two sons, including the plaintiff, and hence even in her share the plaintiff had only half. Thus, it was claimed that in the plot in question which totally measured 44 decimals, the plaintiff or even her mother cannot legally inherit 8 decimals. The defendant claimed that although he was earlier a tenant in the suit premises in which he carried wood business, but subsequently he purchased the suit premises from the other co-sharers by six registered sale deeds of 2001 to 2004 - 3 - (Ext.C to C/5) and since then he is in occupation of the suit premises in his own right as owner thereof. 5. After considering the respective claims of the parties, the learned trial court framed the following issues for deciding the title suit:- (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has got cause of action or right to sue? (iii) Whether there is relationship of landlord and tenant between the parties? (iv) Whether the defendant is defaulter in payment of rent? (v) Whether the plaintiff is entitled to a decree for realization of arrears of rent as claimed in the plaint? (vi) Whether the plaintiff has got personal necessity of the suit premises? (vii) Whether the suit is bad for defect of parties? (viii) Whether the plaintiff is entitled to any other relief which is not specifically sought for? 6. Thereafter evidence were led and arguments were made by the parties after considering which the learned Munsif, I, Munger decreed the eviction suit on contest vide judgment and decree dated 29.06.2005 after arriving at the following findings:- (a) It is admitted fact between the parties that the total area of suit plot was 44 decimals in which maternal grand father of the plaintiff had 1/4th share and he had only three daughters who inherited the share of their father. (b) There is no evidence at all to show any partition of the suit plot among the co-sharers. (c) The suit plot is still joint and the vendors of the defendant were not in possession of any specific portion of the plot. (d) Defendant has not been able to establish the construction of the suit house in 2001 as claimed by him. (e) The plaintiff by reliable evidence has succeeded in proving his possession over the land in question and the construction of the suit house as well as induction of the defendant as a tenant in the suit house. - 4 - (f) It is established that the plaintiff is landlord and the defendant is tenant in the suit house. (g) It is not in dispute that the defendant had not paid any rent for the period claimed by the plaintiff and hence has become defaulter. (h) Defendant has not contested the plaintiff’s claim of personal necessity and the plaintiff has been able to prove his personal necessity for running his own business therein and as such the plaintiff has necessity of the suit house. 7. Against the aforesaid judgment and decree of the trial court, the defendant filed Title Eviction Appeal No.09 of 2005 and after considering the respective claims of the parties, learned court of appeal below formulated the following points for deciding the title eviction appeal:- (i) Whether the plaintiff has got right, title and interest over the suit premises as land lord and whether the defendant is in occupation of the suit premises as owner by way of sale deeds executed in his favour with respect to the suit premises by the alleged co-sharer of the plaintiff? (ii) Whether there is relationship of landlord and tenant between the parties and the plaintiff has bonafide personal necessity and the defendant is defaulter? 8. After hearing the parties and after considering their respective pleadings and evidence, learned Additional District Judge-cum-Fast Track Court No.II, Munger dismissed the eviction appeal on contest vide judgment and decree dated 24.08.2007 after arriving at the following findings:- (a) The defendant claimed that he was inducted as tenant in the suit premises by the co-sharer of the plaintiff through deed of Kiryanama dated 01.12.1999 (Ext.02) and lateron the said co-sharer transferred the said property in favour of the defendant by six sale deeds (Ext.-C to C/5), whereafter he came in possession of the suit premises as its exclusive owner. - 5 - (b) It is admitted that plaintiff was a co-sharer of the property and there is no denial of the right, title and interest of the plaintiff in the suit plot. (c) From Ext.-C to C/5 it is clear that there is no mention regarding boundary and it is not clear that the sale deeds relate to portion of the said plot which is the subject matter of the suit and they do not show that they are with respect to the suit premises. (d) In an eviction suit, the court has to consider the question of title only incidentally which the plaintiff has been able to prove. (e) Exts.-C to C/5 have been executed separately and none of them show that all the co-sharers have executed sale deeds in favour of the defendant. (f) There is no mention of any partition and there is nothing to show that the aforesaid sale deeds were executed with regard to the specific portion of the plot in question or with regard to the suit premises. (g) Section 2 (f) of the Bihar Buildings (Lease, Rent & Eviction) Control Act defines ‘landlord’ which includes the person who for the time being is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another, or on account or on behalf of for the benefit of himself and others, or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let out to a tenant. (h) The plaintiff has been able to prove the fact of realistion of rent from defendant by evidence. (i) The defendant has admitted his induction in the suit premises as tenant and as sale deeds Ext.-C series do not create title in favour of the defendant over the suit premises and as Section 2(f) of the Act deals with the definition of ‘landlord’ which includes the plaintiff, - 6 - hence it is held that there is relationship of landlord and tenant between the parties. (j) Admittedly the defendant has not paid the rent for the period claimed by the plaintiff. (k) Defendant has got no right to claim the suit property as its owner, whereas the plaintiff by oral and documentary evidence has proved the right, title and interest over the suit premises as landlord of the suit premises. (l) There is relationship of landlord and tenant between the plaintiff and the defendant. (m) Defendant is defaulter in payment of rent for more than two months. (n) The plaintiff has personal bonafide necessity of the suit premises. (o) Part eviction of the suit premises will not serve the purpose and hence there is no need of part eviction of the suit premises. 9. Against the aforesaid judgment and decree of both the learned courts below, the instant second appeal was filed by the defendant which was admitted on 22.07.2008 on the following substantial questions of law:- (i) Whether the learned courts below were justified in introducing the principle of joint family under Hindu Law to the instant case between the parties which are governed by the Mohammedan Law? (ii) Whether the learned courts below were justified in passing the judgments without even considering the oral evidence of the defendants? (iii) Whether the learned courts below were justified in ignoring Ext.3 series and the sale deed executed by the plaintiff while holding non- sale of his share by the plaintiff? 10. At the time of arguments on 04.02.2009, the learned counsel for the appellant sought permission to add two more substantial questions of law to the already existing aforesaid substantial questions of law and considering the facts and circumstances, they are allowed to be added. They are as follows:- (iv) Whether the dispute of title being the principal dispute and decided as such, this suit could have proceeded only as a title suit and this eviction suit is not maintainable? (v) Whether any of the issues of the personal necessity or defaulter not having been considered with relation to evidence, if any, the judgments of the learned courts below are vitiated in law? - 7 - 11. On the said questions raised by learned counsel for the appellant, he submitted that the plaintiff claimed the suit premises as owner in possession thereof having constructed the house in the year 1965, but no genealogy was given in the plaint and only vague statements were made in paragraphs 2 and 3 of the plaint as to how the plaintiff inherited the suit property, whereas the written statement of the defendant contained the genealogical table which was never disputed by the plaintiff, hence it is the admitted genealogical table. It is further claimed that admittedly the total area of Plot no.251 was 44 decimals which belonged half and half to Ahmad Ali and Nazeer Hasan, hence, Ahmad Ali had only 22 decimals share in the said plot, but the plaintiff claimed to be the owner of 8 decimals (suit premises), whereas the said Ahmad Ali having left behind two sons Sk. Ali Nazeer and Sk. Ramzan Ali, both sons had 11 decimals share each and Sk. Ali Nazeer having left behind only three daughters but no son, 1/3rd of his share would go to his brother Sk.Ramzan Ali as per the provisions of the Mohammedan Law, whereas remaining 2/3rd of his share amounting to about 7.5 decimals would be inherited by her three daughters, out of whom Soghra Begum (mother of the plaintiff) would inherit only 2.5 decimals and after her death her two sons, including the plaintiff, would inherit not more than 1.25 decimals share each, which they sold to others by registered documents which are of 2000 (Exts- C/6, C/7 and C/8), hence, learned counsel for the appellant averred that the claim of the plaintiff was absolutely baseless. 12. Learned counsel for the appellant further submitted that although the defendant was earlier the tenant of the suit premises by way of Kiryanama dated 01.12.1987 executed in his favour by Reyaz Ahmad son of Ramzan Ali, but subsequently by six registered deeds of 2001 and 2004 (Ext.- C to C/5), he purchased the suit premises from Reyaz Ahmad and his nephews Haroon Rashid, Ibrahim Rashid and Adil Rashid sons of Nizamuddin and - 8 - Hasina Begum. It is also averred that according to the above mentioned genealogy, Sk. Ramzan Ali had 11 decimals from his father and 3.5 decimals of his brother Sk. Ali Nazeer and hence he got a share of about 14.5 decimals and he left behind four sons Nizamuddin, Abdul Hafiz, Riyaz Ahmad and Jamaluddin , out of whom Jamaluddin died issueless and hence Riyaz Ahmad and sons of Nizamuddin had full right to sell the suit premises to the defendant. He also averred that in the aforesaid circumstances the dispute of title between the parties was not incidental, rather it was a full fledged contested matter and as such a full fledged title suit was required to determine the issues and it cannot be decided merely incidentally in an eviction suit. 13. Learned counsel for the appellant also submitted that Ext.-B is the Kriyanama dated 01.12.1987 which was executed by Reyaz Ahmad in favour of the defendant and the said Reyaz Ahmad was earlier the landlord of the defendant and belonged to absolutely a different branch and hence there was never any relationship of landlord and tenant between the plaintiff and the defendant. So far the question of personal necessity is concerned, it is stated on behalf of the appellant that the settled principle of law is that person claiming personal necessity must be the owner of the suit premises, but here in the instant case, the plaintiff is neither an owner of the suit premises, nor the landlord of the defendant. It was also stated that in such suits, the court has to decide firstly the question of ownership, secondly the relationship between the parties and only when the aforesaid two issues are decided in favour of the plaintiff, thirdly the question of defaulter has to be decided, hence in the instant case, when the first and second questions with respect to the ownership and relationship between the parties are clearly against the plaintiff, there was no occasion for the courts to go into the matter regarding default in payment of rent. 14. On the other hand, learned counsel for the respondent argued that both the learned courts below had considered all the sale deeds (Ext.-C - 9 - series) in detail, whereafter it had been found that there was no boundary given therein, whereas defendant himself deposing as D.W.10 admitted that the suit land was never partitioned among the co-sharers as there was no ridges in the lands and these facts completely demolished the claim of the defendant about the absence of any share/ownership of the plaintiff. So far the question of relationship of landlord and tenant between the parties as well as question of personal necessity of the plaintiff and default in payment of rent by the defendant are concerned, they had been fully considered by the learned courts below and they are concluded questions of fact which cannot be interfered in a second appeal. 15. So far the substantial question of law no.(i) is concerned, it is quite apparent that the plaintiff had not claimed any joint family or joint family property or a Karta applicable to persons governed by Hindu Law, rather he had claimed as a co-sharer and a tenant in common and the learned courts below have considered the issues involved in the suit on the basis of the above principles applicable to the persons governed by Mohammedan Law. Furthermore, from the judgments and decree of the learned courts below, it does not appear that the learned courts below had anywhere tried to introduce the principle of joint family under Hindu Law to the instant case between the parties governed by Mohammedan Law. Hence, this question raised by the appellant is not substantiated by any material whatsoever. 16. So far the substantial question of law no.(ii) is concerned, it is quite apparent that both the learned courts below have passed their judgment after considering the evidence on record, both oral and documentary, as would be apparent from paragraphs 9 to 13 of the trial court judgment as well as from paragraphs 10 to 12 of the lower appellate court judgment. Hence, this question raised by the appellant is also non-substantiated and baseless. 17. So far substantial question of law no.(iii) is concerned, Ext.-3 is merely a notice of proceeding under Section 144 of the Code of Criminal - 10 - Procedure issued by the Magistrate and it had no bearing either on the question of title or upon the question of relationship between the parties and hence there was no occasion for the courts below to consider the said document while deciding the aforesaid issues. Furthermore, the appellant has failed to explain as to how the said document was relevant for his purpose. The sale deeds (Ext.-C/6, C/7, C/8) said to have been executed by the plaintiff along with his brother in favour of third party have been fully considered by the learned lower appellate court in paragraphs 11 and 12 of its judgment, whereafter it came to the conclusion that the sale deeds Ext.-C series do not create title over the suit premises. In the aforesaid circumstances, the said question raised by the appellant could also not be substantiated and is clearly frivolous. 18. So far substantial question of law no.(iv) is concerned, the learned counsel for the appellant has gone into detail in calculating the share of the respective parties, but has completely ignored that the defendant- appellant himself has admitted while deposing as D.W.10 that the plaintiff was a co-sharer of the suit plot which was never partitioned among the co- sharers and there was not even ridges on the said land to show separate possession which entirely demolishes the claim raised by the appellant. So far the sale deeds Ext-C series are concerned, the learned courts below have concurrently found that the said sale deeds do not mention any boundary and it is not clear that the sale deeds relate to the part of the plot in question which is the subject matter of the suit and they definitely did not show that they are with respect to the suit premises. It is also clear from Ext-C to C/5 that all the co-sharers had not executed them in favour of the defendants nor even any mention of partition had been made therein to show that it was executed with respect to any specific portion of the plot in question or with regard to the suit premises. In the said circumstances, the defendant has miserably failed to - 11 - show any semblance of his title over the suit premises and hence it cannot be said to be the principal dispute. 19. Learned courts below have also found that Kiryanama dated 01.12.199-87 (Ext.-B) executed by Reyaz Ahmad in favour of the plaintiff was with respect to Plot No.332 having an area of 8 ¾ dhurs and hence it was clearly not with respect to the suit premises which is 8 decimals of plot no.251, whereas the plaintiff has specifically claimed that he as a co-sharer had inducted the defendant in the suit premises as tenant which was fully proved by the plaintiff by cogent evidence, whereas the defendant had miserably failed to deny the said claim of the plaintiff and had admitted that earlier he was a tenant of the suit premises. In the said circumstances, both the learned courts below were fully justified in arriving at a concurrent finding of fact that there was a relationship of landlord and tenant between the parties. 20. The learned courts below had decided the aforesaid issues after considering in detail pleadings and evidence of the parties and also after appreciating the specific provisions of Section 2(f) of the Bihar Buildings (Lease, Rent and Eviction ) Control Act, 1982 as well as the settled principle of law in that regard. Furthermore, it is quite apparent that the dispute of title was not the principal dispute and there was no occasion for proceeding with the eviction suit as a pure title suit as the main issue was with respect to the relationship of landlord and tenant between the parties with respect to the suit premises, which was fully proved by the plaintiff and hence the question of title had to be considered in the instant suit only incidentally which the learned courts below had rightly done. In the aforesaid facts and circumstances, it is quite apparent that this question raised by the appellants could not be substantiated in view of the specific pleadings and evidence of the parties as well as the provisions of law. 21. So far substantial question of law no.(v) is concerned, issues of default in payment of rent and personal necessity had been specifically raised - 12 - by the plaintiff in his plaint and has also been able to prove both the issues by his evidence. With regard to issue of default, both the learned courts below found that the defendant did not deny the pleading and evidence of the plaintiff with regard to default in payment of rent and hence the defendant having been found to be the tenant of the plaintiff with respect to the suit premises, he is a defaulter in payment of rent for the said period which exceeded much more than two months. With regard to issue of personal necessity of the plaintiff, both the learned courts below have held that the plaintiff has claimed that he wants to run his own business in the suit premises which was also proved by evidence,