MADHUSUDAN NATH PRASAD Vs. MAHESHWAR NATH PRASAD

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiffs-appellants against the judgment and decree dated 12.2.1990 passed by Sri Shashi Kumar Chaudhary. 3rd Additional District Judge, East Champaran at Motihari In Title Appeal No. 60 of 1986/28 of 1989 affirming the judgment and decree dated 28.6.1986 passed by Sri Baikunth Nath Sahi, 4th Additional Subordinate Judge. Motihari in Title Suit No. 82 of 1979/11 of 1985. The plaintiffs-appellants had filed suit which was numbered as Title Sint No. 82 of 1979 for declaration of their title over the suit premises and for eviction of the defendants therefrom besides claim for arrears of rent from July. 1976 to March 1979 amounting to Rs. 165.00 and also for mesne profits. The suit was contested by the defendants-respondents and on contest the suit was dismissed by the Trial Court by judgment dated 28th June. 1986. Against the said judgment of dismissal of the suit, the plaintiffs preferred appeal before the learped District Judge, Motihari which was numbered as Title Appeal No. 60r of 1986. In the said appeal the judgment was delivered on 12th Feb., 1990 by 3rd Additional District.Judge, East Champaran at Motihari whereby he also dismissed tyre appeal filed by the plaintiffs-appellants. Against the said judgment, its Second Appeal has been preferred.

(2.) Before making discussion on the findings of the Appellate Court, I would like to state the case of the respective parties.

(3.) Most. Kuari was the wife of Bantilal Sah. The said Bantilal Sah had two sons, namely. Lakshmi Prasad and Thakur Prasad Sah. Bantilal Sah originally belonged to village Latihanwa under Adapur Police Station. He was married to Mostt. Kuari, daughter of Kali Charan Sall, resident of Mohalla Baniapatti within Motihari town. Jalo Kuer was the wife of Kali Charan Sah. The said Kali Charan Sah cited leaving behind him his widow Jalo Kuer and his daughter Mostt. Kuari and two maternal grand-sons, namely, Iakshmt Prasad Sah and Thakur Prasad Sall. C.S. Municipal Khesra No. 1060 belonged to Late Kali Charan Sah as his homestead land. Subsequently, he (Kali Charan Sah) purchased C.S. Plot No. 1059 through registered sale deed dated 16.1.1903 executed by Sudhan Salt, Budhan Sah and Jhapsi Sah and thereafter he amalgamated both the plots and remained in possession of the same. After the death of Kali Charan Sall, Bantilal Sah had been looking after the affairs of Jalo Kuer and in this connection he was mostly residing at Motihari. The said Mostt. Jalo Kuer executed a registered deed of gift in favour of her daughter Mostt. Kuari and her maternal grand-son Thakur Shah on 6.5.1908. Younger brother of Thakur Prasad Sah, namely, Lakshmi Sah was born after execution of the said gift deed. Thakur. Prasad Sah, his mother and his brother Lakshmi Prasad Sah formed a joint Hindu Mitakshara family. In the year 1920 Thakur Prasad Sah died leaving behind him his maternal grand-mother Jalo Kuer, his mother Mostt. Kuari. his brother Lakshmi Prasad Sah. his widow Mostt. Tapeshari Kuer and his daughter Girja Devi. Mostt. Jalo Kuer. Mostt. Kuari and Gina Devi also died leaving behind Lakshmi Prasad Sah as their sole surviving heir in the family. Tapeshari Kuer, the widow of Thakur Sah is said to have married another husband, namely, Dhahchhan Sah of village Latihanwa and thereby she was divested with the estate left by her husband. Lakshmi Sah died in the year, 1964 leaving behind him the plaintiffs as his heirs. Further case of the plaintiffs-appellants is that C.S. Plot Nos. 1059 and 1060 were numbered as R.S. Plot Nos. 2390 and 2391 in the revisional survey in the names of Thakur Sah and Lakshmi Sah. After amalgamation of both the plots two houses comprising eastern block and western block were constructed for the purpose of letting out the same to the tenants. The eastern block was let out to Nathuni Sah. father of the defendants, on monthly rental of Rs. 5.00. The said Nathuni Sah and thereafter the defendants-respondents used to pay the rent of the houses regularly to the plaintiffs-appellants but from the month of July. 1976 and onwards the defendants stopped payment of rent in spite of the repeated demands. Then the plaintiffs requested the defendants to vacate the house but the defendants avoided to do so. Thereafter the plaintiffs served legal notice dated 28.6.1978 upon the defendants asking them to vacate the suit premises detailed in Schedule 1 of the plaint and also to pay the arrears of rent. The defendants gave reply of the said notice on 14.7.1978 denying the relationship of the landlord and tenant and asserting their title over the suit houses by disclosing that i trey were paying municipal tax of the suit premises. After receipt of the reply of the notice. the plaintiffs applied to the Municipality for correction of the assessment register on the basis of which Mutation Case No. 73 of 1978 of 1978 - 79 was initiated. In that proceeding the defendants-respondents appeared and filed rejoinder on 8.2.1979 in which they described themselves to be the great grandson of Thakur Sah denying relationship of landlord and tenant between the plaintiffs and defendants. It has been stated that the defendants-respondents have no other status than that of tenants of the plaintiffs-appellants and by repudiating the tenancy they have made themselves liable to be evicted from the suit premises and also to pay damages pendente lite and future and thus, the necessity of filing of the suit arose.