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2013 DIGILAW 1333 (JHR)

Ashok Pada Sen v. Nabi Rasool

2013-12-06

N.N.TIWARI

body2013
ORDER The second appeal has been preferred against the judgment and decree dated 28.05.2013 passed by learned District Judge-IX, Dhanbad in Title Appeal No.63 of 2010 affirming and upholding the judgment and decree dated 25.02.2010 passed in Title (Eviction) Suit No.40/2002 passed by learned Additional Munsif, 1st Dhanbad. 2. The appellant is the tenant. The suit was filed by the plaintiffs-respondents for eviction of the appellant from the suit premises on the ground of default in payment of rent and personal necessity. The defendant-appellant contested the suit taking the defence that there is no relationship of landlord and tenant between the plaintiffs and the defendant. They are the owners of the suit premises and there is no question of payment of rent or default in payment of rent. They questioned the maintainability of the suit on that ground and prayed for dismissing the suit. 3. Learned trial court, on the basis of the pleadings of the parties, framed as many as nine issues. Among them, issues as to whether there was a relationship of landlord and tenant between the parties, whether the defendant defaulted in payment of rent and whether the plaintiffs need the suit property bonafide were arrayed as issue nos. 4, 5 and 6 respectively. 4. Both the parties led evidences – oral and documentary. 5. Learned trial court, after thorough discussion and consideration of the facts, law and evidences on record, decided the said Issue nos. 4, 5 and 6 in favour of the plaintiffs holding that there is relationship of landlord and tenant, the defendant defaulted in payment of rent and that the plaintiffs need the suit premises for bonafide use and occupation. 6. Learned trial court, thus, decreed the suit. 7. Aggrieved by the said judgment and decree, the appellant-tenant filed Title Appeal no.63 of 2010 in the court of District Judge, Dhanbad. 8. The said appeal was finally heard and disposed of by learned District Judge-IX, Dhanbad. 9. On the basis of the grounds taken in the appeal, learned lower appellate court formulated the following two points for determination :- (i) Whether the learned court below, without appreciating the evidence on record properly, has arrived at a conclusion that there is existence of landlord and tenant between the plaintiffs and defendant and hence the judgment of the court below is bad in law and liable to be set aside ? (ii) Whether the learned court below, while passing the impugned judgment, has committed any material error, illegality or irregularity either in fact or in law which warrants interference in the judgment and decree passed by the lower court ? 10. Both the parties addressed learned lower appellate court on the said points. 11. In order to arrive at conclusion on the same, learned lower appellate court thoroughly discussed the facts and evidences in detail and on due consideration of the relevant aspects, facts and materials on record as well as provisions of law answered both the points in negative. Learned lower appellate court held that the plaintiffs-respondents have proved that they are landlord of the suit premises and the defendants are tenant who have defaulted in payment of rent of more than two months and there is no infirmity or illegality in the finding recorded by learned lower court. Learned lower appellate court, thus, dismissed the appeal. 12. In this second appeal, the judgment and decrees of the courts below have been assailed on two grounds by the appellant ; firstly that the learned courts below have not properly discussed the documentary evidences (Exhibits-3 and 6) and have come to an erroneous finding holding that there is relationship of landlord and tenant between the parties and secondly that though the plaintiff had not paid ad-valorem court fee, learned courts below have erroneously decided the issue of title. Learned counsel for the respondent, contesting the appeal, submitted that learned trial court as well as learned lower appellate court have thoroughly discussed the facts and evidences on record and have come to the concurrent finding of fact that there is relationship of landlord and tenant between the parties and that the defendant-tenant defaulted in payment of rent, as also that the plaintiffs-landlords need premises for their bonafide use in view of expansion of family. 13. I have heard learned counsel for the parties and perused the judgments and decrees of learned courts below. 14. Learned trial court as well as learned lower appellate court have concurrently found and held that there is relationship of landlord and tenant between the parties and that the plaintiffs are entitled for decree of eviction on the ground of default of the tenant-defendant in payment of rent and also for their bonafide need. 15. 14. Learned trial court as well as learned lower appellate court have concurrently found and held that there is relationship of landlord and tenant between the parties and that the plaintiffs are entitled for decree of eviction on the ground of default of the tenant-defendant in payment of rent and also for their bonafide need. 15. The said findings of facts are based on appraisal of evidences and materials on record. 16. The findings have been assailed on the ground of not appraising only two documentary evidences, i.e. Exhibits 3 and 6 properly and that the issue of title has been decided by learned courts below, though ad-valorem court fee was not paid by the plaintiffs. 17. On close scrutiny of the impugned judgments, I find that the defendant had contested the suit denying the relationship of landlord and tenant and claimed right of ownership of the suit premises. 18. In order to determine the issue of relationship between the parties, learned trial court as well as learned lower appellate court have thoroughly discussed the evidences including Exts. 3 and 6 and have incidentally considered the question of title in order to arrive at the finding regarding the relationship between the parties. 19. There was no independent issue regarding right, title nor there is any full-fledged trial on the issue of title. 20. It has been repeatedly held that while deciding the issue of relationship of landlord and tenant, the courts can incidentally enter into and examine the evidences in order to arrive at the finding as to who is the landlord of the suit premises. The finding recorded in that process on discussion and consideration of evidences and material on record for that purpose cannot be equated with the finding and declaration of title to the suit premises to be recorded after full-fledged trial and adjudication of an issue of title by a competent court of civil jurisdiction. Reference may be made to the decisions of Patna High Court in Anil Kumar Sinha & Anr. vs. Most. Veena Devi & Ors. [ 2003(2) PLJR 348 ] and in Sheo Shankar Prasad vs. Barhan Mistry [ 1985 PLJR 358 ] . 21. Reference may be made to the decisions of Patna High Court in Anil Kumar Sinha & Anr. vs. Most. Veena Devi & Ors. [ 2003(2) PLJR 348 ] and in Sheo Shankar Prasad vs. Barhan Mistry [ 1985 PLJR 358 ] . 21. The issues of relationship between the parties, default in payment of rent for more than two months as well as bonafide requirement of the suit premises by the plaintiffs have been concurrently decided in favour of the plaintiffs by the two courts of facts on appraisal of evidences, are binding on the second appellate court. 22. Reappraisal of evidence including that of Exts. 3 and 6 is beyond the jurisdiction of this Court in second appeal. 23. In view of the above discussion, the grounds taken on behalf of the appellant do not give rise to any substantial question of law to be framed and decided in this second appeal. 24. This appeal is, accordingly, dismissed.