IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.167 of 2005 1. Manoj Kumar 2. Saroj Kumar, Both sons of Late Sheo Pujan Singh 3. Jago Devi wife of Late Sheo Pujan Singh 4. Renu Kumari daughter of Late Sheo Pujan Singh, All residents of village Aruri, P.S. Pakriwarawa, District Nawada. …Heirs of sole defendant-Appellant-Appellants. Versus Parmeshwer Lal Maheswari son of Late Sri Rameshwer Lal Maheshweri, resident of village -P.S Warisaliganj, and District Nawada. …….Plaintiff-Respondent-Respondent. For the appellants : M/s Alok Kumar Sinha and Bhola Kumar, Advocates. For the respondent : None. ----------- 11/ 06.01.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.31 of 1985 which was filed by the sole plaintiff-respondent-respondent for eviction of the defendant from the suit premises on the ground of default in payment of rent and for other ancillary reliefs. Although relationship of landlord and tenant was not found by the trial court, but the suit was decreed on contest under Order VII Rule 7 of the Code of Civil Procedure by the learned Subordinate Judge-III, Nawada vide his judgment and decree dated 11.03.1992. 4. Against the foresaid judgment and decree of the trial court the original defendant filed Title Appeal No.05 of 1992 (01/1993) which was dismissed on contest by the learned 3rd Additional District 2 Judge, Nawada vide his judgment and decree dated 08.04.2005. Against the aforesaid judgments and decree of the learned courts below the instant second appeal has been filed by the defendants, who are the heirs of the original sole defendant. 5. Learned counsel for the appellants vehemently challenges the judgments and decree of the learned courts below claiming that the defendants have raised a specific case that by oral settlement dated 25.05.1939 the ex-intermediaries settled 10 Kathas of land with the original defendant, who constructed 08 shops on 03 Kathas of the said land and hence there was no question of relationship of landlord and tenant between the parties. Learned counsel for the appellants relies upon a decision of the Hon’ble Apex Court in case of Rajendra Tiwary vs. Basudeo Prasad and Another, reported in A.I.R. 2002 Supreme Court 136 and averred that the learned courts below wrongly went in detail about the question of title of the parties which was not the subject matter of the suit and they were not entitled to grant a relief larger than the relief claimed by the plaintiff. 6. From the said arguments as well as from the materials on record, including the judgments and decree of the learned courts below, it is quite apparent that the original defendant had claimed his title in the said suit on the basis of memorandum of oral settlement dated 25.05.1939 (Ext.H) as well as Zamindari Receipts (Exts. B and B/1), but the learned courts below after considering the evidence of the parties found that the executant of the memorandum of Hukumnama was not the recorded owner and furthermore there was sufficient 3 material to show that the said Ext.H was a fraudulent paper and the Zamindari Receipts issued by the person, who was not the landlord, were clearly forged and fabricated. Furthermore, the defendant had himself admitted that his name was never recorded in the Government Records nor any demand in Register-II was opened in his name. 7. On the other hand, although the learned courts below did not decide the question of title between the parties, but it merely incidentally considered the claim of the plaintiff on the basis of registered sale deeds (Ext.7 series) executed by the recorded owner, petitions and the judgment of the title suit as well as rent receipts granted by the recorded landlord as also by the State Government after vesting of Zamindari in the State of Bihar. 8. The learned courts below also found that the admitted position was that a market complex of 20 shops was being constructed on plot no.431 and the plaintiff claimed that all the aforesaid shops belonged to him on the basis of the aforesaid documents of title and possession and the work of construction of the said market complex was done under the supervision and with the help of the defendant, but the said defendant subsequently started claiming 08 shops denying the title of the plaintiff on the said 08 shops out of 20 shops, but they could not justify their claim with respect thereto by any valid material. 9. In the said circumstances as well as from the findings of the learned courts below it is quite apparent that the learned courts below had not decided the elaborate question of title between the parties, rather the learned courts below merely incidentally looked into 4 the matter with respect to the claims of the parties and had rightly come to the conclusion that the documents filed by the defendant were not reliable and trustworthy, whereas the documents of the plaintiff was legal and proper. Thus the relief which was granted by the learned courts below was only with regard to eviction of the defendant, which was the relief claimed by the plaintiff and hence there was no question of enlargement of the reliefs by the learned courts below. Accordingly the decision relied upon by learned counsel for the appellants in case of Rajendra Tiwary (Supra) is not applicable to the facts and circumstances of this case. 10. The plaintiff had sought a relief of eviction and the relief granted by the learned courts below was also of eviction and only the ground on which that relief was granted was different, as the plaintiff could not establish any relationship of landlord and tenant, but there was sufficient material to prove that the defendant was a licensee of the plaintiff and was in possession in that capacity and hence the plaintiff was fully entitled to the equitable relief as per the provision of Order VII Rule 7 of the Code of Civil Procedure. 11. 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. harish (S.N. Hussain, J.)