HARI CHARAN YADAV Vs. MANAGER CHAUDHARY

JUDGEMENT

(1.) This Second Appeal under Sec. 100 of the Code of Civil Procedure, has been directed against the judgment and decree dtd. 1/8/1989 passed by Shri Jhauri Prasad Paul, 3rd Additional District Judge, Siwan in Eviction Appeal No. 4 of 1988 affirming the Judgment and decree dtd. 16/4/1988 passed by Shri Dharam Nath Prasad Verma, Ist Munsif Siwan in Eviction suit no. 91 of 1983, whereby the Eviction suit was dismissed.

(2.) The brief facts are that the original plaintiff/appellant Thakur Choudhary, who died during the pendency of the appeal represented by his legal heirs, appellant nos. 1 to 3 filed Eviction suit No. 91 of 1983 for eviction of defendant from the suit house and realization of arrears of rent. It is stated that R.S. plot No. 463 under Khata No. 2 was owned and possessed by original kashtkar and the same land is recorded in the name of Sheo Govind Raut, the grandfather of the plaintiff under Sikmi Khata no. 2.

(3.) The plaintiff Thakur Choudhary is the grandson of Sheo Govind Raut, a recorded Sikmi tenant of Khata No. 2 R.S. Plot No. 463 having an area of 15 Katha 7 dhur who had taken oral settlement from ex-landlord and became Kashtkar. The rent of land was paid to the ex-landlord and thereafter to the State of Bihar on vesting of Zamindari. The suit house was constructed by the plaintiff over the suit land and the same was rent out orally to the defendant on 1/1/1980 on the monthly rent of Rs. 25. The respondent paid rent to him till 31/12/1981 and refused to pay the rent thereafter. The plaintiff was in need of the suit house for his personal necessity. Accordingly, the suit was filed. The original defendant/respondent, Mahendra Choudhary denied the claim of the plaintiff and stated that the suit land was never settled by the ex-landlord in favour of the plaintiff. The plaintiff or his father or grandfather never remained in possession of suit land and never constructed the suit house. It is further stated that suit house was constructed by him and his family members. The creation of tenancy, payment of rent and arrear of rent in respect of suit house have been denied. It is further stated that grandfather of plaintiff Sheo Govind Raut had got wrong survey entry of Sikmi khatiyan in his name who died 50 years ago and on his death the landlord Kashtkar, namely, Kapil Dev Narayan and Praduman Narayan got back the possession of the suit land and later on father of the defendant purchased 8 katha of land in R.S. Plot No. 463 by oral sale from them on payment of Rs.95.00 and came in possession in Vaisakh 1936. The father of the defendant constructed the suit house over 1 katha of land and remaining land remained in his cultivation. Subsequently, the father of defendant transferred the suit land in favour of the defendant by registered sale deed and he came in possession of the suit land from the date of the sale. The Trial Court framed as many as 7 issues on the basis of rival pleadings of the parties, which are as follows.