IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.55 of 2007 ---- Suresh Mahto son of Shiban Mahto, Resident of Village Ghat Nawadah alias Benipur Nawadah, Dalsingsarai, P.S.Dalsingsarai, District- Samastipur. -- Defendant-Respondent-Appellant. Versus Basant Kumar Choudhary, son of Sri Hemant Kumar Chaudhary, resident of Keola Kothi, Dalsingsarai, P.S. Dalsingsarai, District- Samastipur. -- Plaintiff-Appellant-Respondent. ----- For the appellant : Mr. R.K. Mishra with Mr. Rajesh Kumar, Advocates. For the respondent : Mr. V.Nath with Mr. Arvind Kumar-II, Advocates. ---- 12. 30.10.2009 Heard learned counsel for the appellant and learned counsel for the respondent. 2. This second appeal has been filed by the sole defendant-respondent-appellant challenging judgment and decree of the learned court of appeal below. 3. The matter arises out of Eviction Suit No.06 of 1996 which was filed by the sole plaintiff-appellant-respondent for eviction of the sole defendant-respondent-appellant from the suit premises detailed in Schedule-I of the plaint on the grounds of default in payment of rent and also for recovery of arrears of rent detailed in Schedule-II of the plaint along with other ancillary reliefs. The said suit was dismissed on contest with cost by the learned Munsif-I, Samastipur vide his judgment and decree dated 03.08.2001. - 2 - 4. The aforesaid judgment and decree of the trial court was challenged by the plaintiff in Eviction Appeal No.09 of 2001 which was allowed on contest by the learned District Judge, Samastipur vide his judgment and decree dated 05.02.2007 setting aside the judgment and decree of the trial court and decreeing the suit of the plaintiff. Against the aforesaid judgment and decree of the learned court of appeal below, the instant second appeal has been filed by the defendant. 5. Learned counsel for the appellant vehemently challenges the judgment and decree of the learned court of appeal below claiming that the learned District Judge did not consider the point of adverse possession as the defendant is in possession of the suit premises since several decades prior to the vesting of the Zamindari in the State of Bihar under the Bihar Land Reforms Act. He has also raised another point that there was absolutely no material to show any relationship of landlord and tenant between the parties and hence no decree of eviction could legally have been passed under the provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereafter referred to as ‘the Act’ for the sake of brevity). 6. So far the first point raised by the appellant is concerned, it is apparent from his pleadings that he had claimed that the suit land was settled with his ancestor by the ex-intermediary and on the basis of the said settlement he had been in possession of the suit premises since then. In support of his claim he could not - 3 - produce any document of settlement Patta or any Zamindari receipt or any return or any Jamabandi or anything else which could be deemed to be even a semblance of support for his claim of settlement. It is also apparent from the materials on record that no chit of paper has been produced to show that the defendant had been in such possession, nor any witness disclosed the date on which he or his ancestor came in possession or the date on which his possession became adverse to the interest of the real owner. 7. Furthermore, if any right or title is claimed through adverse possession, the law requires that the person who claims that right or title must admit the title of the other person and only thereafter he can claim that his possession having been adverse to the said admitted owner he had acquired title by adverse possession in the suit land, but here in the instant case the defendant has specifically denied not only the relationship of landlord and tenant between him and the plaintiff rather he has also denied any right or title of the plaintiff in the suit property. In the said circumstances, the plea of adverse possession raised by the defendant-appellant is not tenable in law. 8. So far the second question raised by the appellant with regard to relationship of landlord and tenant is concerned, the learned court of appeal has very thoroughly gone into the evidence of the parties and had found that the suit premises along with the entire plot was purchased by the grand father of the plaintiff through registered sale deed dated 21.4.1944 (Ext.-5) executed by the owner - 4 - R.O.Wood, whereafter in Partition Suit No.190 of 1953 among the family members of the ancestor of the plaintiff, plot no.1030 and other lands were allotted to the plaintiff and his brother and hence not only the lower appellate court, but even the trial court prima facie found that the plaintiff was the owner of the suit land. 9. The specific and consistent claim of the plaintiff and his witnesses was that the defendant was his tenant since the year 1988 which was fully proved by the witnesses produced by the plaintiff and was also corroborated by three rent receipts produced on his behalf. So far the evidence of the defendant is concerned, no documentary evidence in that regard could be produced to deny the plaintiff’s pleading and evidence. The deposition of the defendant’s witnesses have also been fully considered by the learned court of appeal below in paragraphs 32, 33, 34, 35 and 36 of the judgment holding that apart from being unreliable evidence, the said evidence did not fully support the claim of the defendant, rather some of them even supported the case of the plaintiff. It was also found that the defendants witnesses had admitted that they had not even seen the settlement papers, nor they could state the boundary of the suit land rather most of them admitted in their cross-examination that in the plot in question there were 20-22 more shops of the plaintiff which were in possession of different tenants. In the said circumstances, the learned court of appeal below was quite justified in coming to the conclusion that there was relationship of landlord and tenant between the parties. - 5 - 10. So far the question of default is concerned, it was an admitted case that the defendant was not paying rent to the plaintiff for several months. In the said circumstances, the defendant was clearly a defaulter and no error was committed by the learned court of appeal below in holding that the defendant being defaulter was liable to be evicted. 11. 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, 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. Sunil (S. N. Hussain, J.)