S M USMAN Vs. HAKIM SAYED AHMAD WARSI

JUDGEMENT

(1.) This is a plaintiff's appeal against the judgment and decree of the first Additional Subordinate Judge, Patna, passed in Title Appeal No. 194/74 of 1948, whereby he dismissed the plaintiff's suit with costs.

(2.) The plaintiff brought the suit for declaration that the order of eviction passed by the House Controller, Patna, was without jurisdiction and void and not binding on him and for a permanent injunction restraining the defendants from enforcing the said order.

(3.) The house in question is situate in Bankipore, being holding No. 100, Circle No. 10, mahalla Bakerganj. It originally belonged to one Sheodayal Narain who inducted the plaintiff as a tenant in the year 1939. This Seodayal was indebted to several creditors who had obtained decrees against him. In execution of their decrees defendants 2 and 3 purchased this house on 19-1-1940. One Mr. T.M. Conally purchased it on 17-6-1940, and the Traders Co-operative Bank purchased the same on 16-4-1941. Mr. Conally, however, sold the house to defendant No. 1 on 10-6-1943. Subsequently, defendants 2 and 3 brought a suit for declaration of their title and recovery of possession from defendant No. 1 with respect to half of the house impleading all the purchasers as parties to the suit. After litigation in the courts below the case ultimately came up to this Court in second appeal and it was held by this Court that defendants 2 and 3 of this suit (who were the plaintiffs in that suit) has eight annas share in the house and a decree for recovery of possession was passed against defendant No. 1, vide, --'Mt. Moti Kuer v. S.M. Usman', AIR 1949 Pat 304 (A). This decision was given in May, 1948. During the pendency of that case on 1-6-1945, defendant No. 1 applied to the House Controller for eviction of the plaintiff on two grounds, namely, on the ground of non-payment of rent as well as on the ground of his having required the house for personal necessity. On 4-1-1946, the House Controller passed an order of eviction against the plaintiff on the ground of his not having paid the rent. As the judgment of the House Controller is not on the record, it is not precisely known as to what was his finding with regard to the question of the house being required for personal necessity. The plaintiff took out an appeal to the Commissioner who remanded the case for re-hearing on the point as to whether or not the owner of the house required it for his personal necessity. On 28-9-1946, the application of the landlord (defendant No. 1) was rejected by the House Controller and against that order he went up in appeal to the Commissioner. The order dated 28-9-1946, is also not on the record, and, therefore, it is not possible to say precisely as to the grounds on which the House Controller rejected the application of the landlord. On 4-1-1947, the Commissioner again set aside the order of the House Controller and remanded the case for rehearing. On 19-12-1947, the House Controller passed an order for eviction of the plaintiff on the ground of his not having paid the rent and this order was confirmed on appeal by the Commissioner by his order dated 8-2-1948. The plaintiff, therefore, filed the present suit on 19-2-1948, for the relief as already indicated.