Sabir Singh vs Smt. Koiri and Others

R.K. Merathia, J.

This second appeal has been filed against the judgment and decree dated 17.7.2004 passed by the learned Additional District Judge, Fast Track Court No. II, Dhanbad in Title Appeal No. 8 of 1996 confirming the judgment and decree dated 15.2.1996 passed by learned Munsif, 2nd Court, Dhanbad in Title (Eviction) Suit No. 5 of 1982.

Mr. Manjul Prasad, learned senior counsel, appearing for the appellants, assailed the impugned judgment on various grounds, including that the eviction suit could not be decreed under the provisions of Order VIII, Rule 7 of the CPC (C.P.C.). He relied on the judgment of Rajendra Tiwary Vs. Basudeo Prasad and Another,

It appears that the present suit was filed in the year 1982 on the ground of personal necessity and default for eviction from suit premises i.e. one room measuring 12 ft. X 81/2 ft.

Regarding issue No. 3 the trial court held that the there was no relationship of landlord and tenant between the parties. Regarding issue No. 4, the trial court held that whether the defendant acquired suit premises, by adverse possession cannot be decided in this suit and accordingly, this issued was decided against the defendant and in favour of the plaintiff. Regarding issue No. 5, the trial court held that the plaintiff was entitled to khas possession on the basis of the title over the same. The trial court decreed the suit.

The defendant/appellant filed the said appeal. The lower appellate court after considering the respective cases of the parties and evidence on record held as follows.

Regarding issued No. 3 it held that there existed relationship of landlord and tenant between the parties and the trial court wrongly decided this issued against the plaintiff/respondent. P.W. 3- vendor of the plaintiff said that the land was purchased by him and his brother from one Tilak Dhari Singh Choudhary and then they constructed two rooms and let out the same to the defendant/appellant and one Moulabux. Thereafter the suit premises was sold to the plaintiff by registered sale deed on 1.6.1979 and possession was given to him. P.W. 2 and 4 also supported the evidence of P.W. 3. In a proceeding u/s 144 Cr.P.C. it was admitted that the defendant was tenant under Tilak Dhari Singh. It was found that relationship of landlord and tenant between vendors of the plaintiff and the defendant was established; and that after purchase the plaintiff became landlord.

Regarding Issue No. 4 whether the defendant acquired the suit house by adverse possession, the lower appellate court held that the defendant did not acquire title to the suit premises by adverse possession. The defendant adduced evidence that he was allowed to occupy the suit land by Tilak Dhari Singh. Therefore his possession was not adverse to that of Tilak Dhari Singh and consequently he cannot claim adverse possession against the vendors of the plaintiff and also the plaintiff. It was found that the pleadings and evidences of defendant were inconsistent.

Regarding issue No. 5 that whether the plaintiff is entitled to khas possession of the suit house on the basis of the title, the lower appellant court held that the plaintiff acquired what title Tilak Dhari Singh had, over the suit land.

Regarding issued No. 1 and 2 it was held that even after written notice sent to the defendant, he did not pay rent and therefore he defaulted in payment of rent from 1.6.1979 till the filing of the suit and thus he became liable for eviction. It was also found that the plaintiff had personal necessity of the suit premises for three major sons.

In my view the lower appellate court has rightly recorded the aforesaid findings, and decreed the suit.

The judgment of Rajendra Tiwary Vs. Basudeo Prasad and Another, is not applicable in this case. In that case both the trial as well as the appellate court held that the relationship of landlord and tenant did not exist between the parties, whereas in the present case it has been rightly held by the lower appellate court that there existed relationship of landlord and tenant between the parties. In my opinion, no substantial question of law is involved in this second appeal which is, accordingly, dismissed. However, no cost.