DWARIKA PODDAR Vs. ALOK KUMAR AGRAWAL

JUDGEMENT

(1.) THIS Second Appeal has been preferred by the defendant -appellant, namely, Dwarika Poddar against the judgment dated 30.9.2003 and the decree dated 13.11.2003 passed in M.T.A. No. 20 of 2000 by the Additional District Judge -VI, Begusarai whereby he dismissed the appeal preferred by the appellant Dwarika Poddar and confirmed the judgment and decree dated 11.5.2000 passed by Sri U.C. Shrivastava, Munsif 1st, Begusarai in Title Suit No. 45 of 1978 whereby he had passed the decree for eviction of the appellant from the suit premises. For taking into consideration the grounds on which this appeal was preferred, I would like to state the case of the respective parties in brief.

(2.) THE case of the plaintiff -respondent, in brief, is that he is the owner and landlord of the suit premises described in Schedule 1 of the plaint. The said property was his ancestral property which was allotted to his share on partition. The father of the defendant -appellant in the capacity of Manager and Karta of his family took the suit premises on rent on monthly rental of Rs. 40/ -. The tenancy started from Hindi Calendar month payable on the first day of each succeeding month with clear stipulation that in case of default in payment of rent of two successive months, the tenant would be liable for eviction without any notice. As per the averment made in the plaint, the said Ram Autar Poddar was very irregular in payment of rent and since Kartik 1384 Fasli equivalent to 9.10.1977 he defaulted in payment of rent of the suit premises and the plaintiff being compelled sent a registered notice to the said Ram Autar Poddar through his lawyer asking him to vacate the suit premises but he refused to accept the notice. After refusal of the said notice, the plaintiff on several occasions requested the said Ram Autar Poddar to vacate the suit premises who always gave assurance to the plaintiff with regard to the vacation of the suit premises. But in the meantime, the said Ram Autar Poddar died on 19.3.1978 leaving the defendants including the present appellant as his heirs who were all members of the joint family. The plaintiff made request with the defendants to pay the arrears of rent and vacate the suit premises but the defendants failed to vacate the suit premises and hence, necessity of filling of the suit arose.

(3.) IN second written statement which was filed by the present appellant alone it has been stated that the plaintiff or his ancestor had never any manner of concern or possession over the suit premises. S.P. No. 1466 over which the suit premises stands measures 4 dhurs but in Khatian its area has been wrongly mentioned as 2 dhurs. The recorded tenant was in possession of 2 dhurs from east and the remaining 2 dhurs of land was in possession of the Malik of the ex -landlord who permitted Parmeshwar Poddar father -in -law of the appellant to make construction over 2 dhurs of land from east and accordingly he constructed the brick -built Khaparposh house and started business and thereafter Shebait of ex -landlord on behalf of the malik settled eastern portion of 2 dhurs of land of S.P. No. 1466. The said Parmeshwar Poddar through Huknama dated 5.5.1928. The appellant was married with the daughter of Parmeshwar Poddar about 35 years back and thereafter the appellant requested his father -in -law to give the suit shop on rent in order to start his own business. The request was accepted by said Parmeshwar Poddar, who let out the suit premises on rent to the appellant in the year 1952 on monthly rental of Rs. 10/ - which was gradually enhanced upto Rs. 50/ -. The appellant had denied that the father -in -law of the defendant Parmeshwar Poddar had taken the suit premises (shop) on monthly rental of Rs. 40/ -. He has also denied this fact that his father had ever paid rent to the plaintiff or his ancestor with respect to the suit premises. He has also denied this fact that the plaintiff had asked to vacate the suit house or had demanded arrears of rent or had ever served any notice for vacating the suit premises. With regard to his first written statement it has been stated that his two brothers were in collusion with the plaintiff and they had managed to take his signature over the first written statement.