MD ASSEBUL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner is aggrieved by order dated 11.8.2004 passed by the Additional District Judge II, Purnea in Eviction Appeal No. 2 of 2003, whereby the petition filed by the petitioner under Order 22 Rule 4 of the Code of Civil Procedure has been rejected.

(2.) THE relevant facts of the case are that one Haji Md. Sajjad, the husband of opposite party no. 5, filed Eviction Suit No. 13/2001 against opposite party nos. 1 to 4. The suit was decreed on contest. Opp. party nos. 1 to 4 filed Eviction Appeal No. 2/2003 in which Haji Md. Sajjad, the plaintiff, was made respondent. During the pendency of the appeal, Haji Md. Sajjad died and his widow Bibi Most. Khaliqunnisha, opp. party no. 5, was substituted as respondent. The petitioner filed an application under Order 22 Rule 4 C.P.C. claiming to be the heir of the original plaintiff Haji Md. Sajjad, which has been rejected by the order impugned.

(3.) HOWEVER , on consideration this much is obvious that the suit was filed by the husband of opposite party no. 5 against opposite party nos. 1 to 4 for their eviction. The suit was decreed on contest and against which opposite party nos. 1 to 4 filed the appeal. During the pendency of the appeal, husband of opposite party no. 5 died and in his place his widow opposite party no. 5 was substituted. The petitioner filed an application for his substitution claiming to be the heir of the original plaintiff Haji Md. Sajjad. The said petition has been rejected. It is evident from the materials on record that it was a suit for eviction. In such a suit the title is not to be gone into. The petitioner filed the suit claiming to be owner of the suit property and not as a tenant. Such question cannot be decided in a suit for eviction. In, a suit for eviction the relationship of landlord and tenant is to be decided. Moreover, such a question of heirship cannot be decided in a suit for eviction and also in appeal because for decision on such question a fresh issue has to be framed and after evidence the issue has to be decided and as such at the appellate stage no such question can be decided. Furthermore, it has been disclosed by the parties that the petitioner has already filed a suit for declaration of title bearing Title Suit No. 110/2004.