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2007 DIGILAW 957 (PAT)

Ramdesh Manjhi v. Uma Devi Kedia

2007-05-16

S.N.HUSSAIN

body2007
Judgment 1. I.A. No. 3072 of 2004 has been filed on behalf of the appellant for condoning the delay in the filing of the Second Appeal. Against the impugned judgment and decree of the lower appellate court dated 26.9.2003, the instant Second Appeal had been filed on 6.1.2004, although according to the stamp report the period of limitation expired on 3.1.2004. Hence, there is a delay of about three days. Considering the averments made by the learned counsel for the appellant and the statements made in the interlocutory application, the same is allowed and the delay in the filing of the Second Appeal is condoned. 2. Heard learned counsel for the appellant and learned counsel for the respondent. 3. This appeal has been filed by the tenant-defendant against the judgment of affirmance passed by the lower appellate court. 4. The plaintiff-respondent had filed Title Eviction Suit No. 03 of 1996 against the defendant-appellant claiming him to be his tenant and also claiming default in payment of rent by the defendant to the plaintiff and also for a decree of arrears of rent since June, 1995 at the rate of Rs. 400.00 per month. The said suit was decreed by learned Munsif, Banka by judgment and decree dated 18.7.2001 which was challenged by the defendant-appellant in Title Appeal No. 44 of 2001 which was dismissed by the learned Second Addl. District Judge, Banka by judgment and decree dated 26.9.2003 which are under challenge in the instant Second Appeal. 5. Both the learned courts below have considered the matter with respect to relationship of landlord and tenant between the parties as well as the default in payment of rent by the defendant in detail and found that the relationship of landlord and tenant between the parties is admitted whereas the defendant-appellant has been found to be a defaulter in payment of rent from June, 1995. The said findings are concurrent findings of facts of the courts below which have been affirmed up till the final court of facts and hence it requires no interference in the instant Second Appeal. 6. So far the question of the payment of arrears of rent at the rate of Rs. The said findings are concurrent findings of facts of the courts below which have been affirmed up till the final court of facts and hence it requires no interference in the instant Second Appeal. 6. So far the question of the payment of arrears of rent at the rate of Rs. 400.00 per month as ordered by the learned courts below is concerned, it is quite apparent that the defendant-appellant Ramdesh Manjhi has himself deposed as D.W. 5 and stated in his evidence that he used to pay Rs. 60/- per month to Sitaram Mandal, vendor of the plaintiffrespondent, till 1990. He has also stated that just before execution of the sale deed by the said Sitaram Mandal in favour of the plaintiff-respondent he stopped payment of rent, but he bid not make any statement as to what Was the rent he paid from 1992 to 1995. Furthermore, in his examination-in-chief, the defendant-appellant has not benied that the rent of suit premises was not Rs. 400.00 per month. Furthermore, the deposition of the defendant-appellant is falsified by his own document Ext.-A which is also of the year 1990 in which the rent of the disputed house was shown as Rs. 100.00 per month, but after 1990 there is no evidence either oral or documentary to disprove the claim of the plaintiff-respondent. In the said circumstances, both the courts below have rightly held that the plaintiffrespondent had succeeded in proving her case on the point of arrears of rent at the rate of Rs. 400.00 per month which appears to be last paid rent also. In the aforesaid facts and circumstances, the said finding of the lower appellate court also does not require any interference. 7. However, learned counsel for the respondent submits that on 13.10.2006 delivery of possession has already been effected in favour of plaintiff-respondent in Execution Case No. 01 of 2004 which has now been disposed of on full satisfaction by learned Munsif, Banka. However, learned appellate court in paragraph 31 of its impugned judgment has specifically stated that if the defendant-appellant succeeds in Title Suit No. 17 of 1995 which he has filed before the learned Subordinate Judge, Banka for specific performance of contract, he would be entitled for restoration of possession. 8. However, learned appellate court in paragraph 31 of its impugned judgment has specifically stated that if the defendant-appellant succeeds in Title Suit No. 17 of 1995 which he has filed before the learned Subordinate Judge, Banka for specific performance of contract, he would be entitled for restoration of possession. 8. In the aforesaid facts and circumstances, I do not find any question of law much less substantial questions of law and accordingly this Second Appeal is dismissed.