LAXMI NARAYAN JHA Vs. KISHUN RAM

JUDGEMENT

(1.) The appeal has been preferred by the above -named plaintiff -appellant against the judgment and decree dated 19 -6 -91 passed by 2nd Additional District Judge, Sitamarhi in Title Appeal No. 25 of 1989 (52 of 1989) affirming the judgment and decree dated 21 -4 -89 passed by Munsif (West), Sitamarhi in Eviction Suit No. 15 of 1986. The eviction suit filed by the plaintiff -appellant against the defendants had been dismissed by both the Courts below holding thereby that there was no relationship of landlord and tenant between the parties.

(2.) The case of the plaintiff in the suit that being Karta of the Mitakshra Joint family he managed the properties including the suit properties appertaining to C.S. P. No. 601 having an area of one Bigha five Katha and eight dhoors of village Bahilbara alias Garah within the district of Sitamarhi. As per plaintiffs case one Most. Arzi Ojhain daughter -in -law of Girdhari Jha, one of the co -sharers of C.S.P. No. 601 executed a verna bond dated 1 -6 -1923 in favour of Maksudan Jha for a Loan of Rs. 900/ -. Later on, the plaintiffs father Hari Nandan Jha purchased the equity redemption in the year 1949 from Most Arzi Ojhain and redeemed the verna on 20 -4 -1949 from Maksudan Jha. But, it is alleged that during the period of that verna, the mortgagee, Maksudan Jha constructed a road in the aforesaid suit plot and had inducted Tulsi Mahara father of the defendant and Bilat Mahra, on a portion of the said plot by constructing houses thereon which is the subject -matter of the dispute. It had also been alleged by the plaintiff that Title Suit No. 60/57 was filed by Hari Nandan Jha in which the defendants' predecessor Tulsi Mahra and Bilat Mahra were also the defendants and they filed a written statement wherein they admitted the title of Hari Nandan Jha and they took Rs. 50/ - from Hari Nandan Jha for shifting of their houses by 30th day of Chait 1365 Fasli year. It has again been alleged that when Bilat Mahra and Tulsi Mahra could not make alternative arrangement they took the house on rent at a monthly rental of Rs. 15/ - from Hari Nandan Jha, the plaintiffs predecessor and since then the defendants' predecessor, namely, Tulsi Mahra and Bilat Mahra become the tenants of the plaintiffs predecessor and remained in the house as a monthly tenant on payment of Rs. 15/ -. It has also been alleged that R.S. Pata No. 1606 and 1607 were carved out of a portion of C.S. Pata No. 601 area being nine decimal and was recorded in the name of defendant's father in Survey Khatain as they were in continuous possession of the same. It has been alleged that the defendant's father stopped payment of rent of house and started trouble over 28 decimal of land in C.S.P. No. 601 which was adjacent to the rented house. The father of the defendants filed a case under Section 144, Cr, P.C. and possession was found in favour of the defendant's predecessor. Then, a notice was served under Section 106 of the Transfer of Property Act asking the defendant's predecessor for vacating the house both for personal necessity and also on the ground of defaulter. While filing written statement defendants contested the suit contending inter alia that the suit as framed was not maintainable, that the plaintiff has got no cause of action and right to sue, that the suit is barred by law of limitation, estoppel, waiver, acquiescence and also by adverse possession. It was contended that the whole story of induction of the defendant's predecessor in the suit plot by mortgagee Maksudan Jha was totally false rather they admitted that the plaintiffs predecessor Hari Nandan Jha was the original owner of the suit land along with others and defendant's predecessor was a labourer of Harinandan Jha. Being satisfied with the service of Tulsi Ram, the predecessor of the defendants, the disputed land was given to the defendant's predecessor 40 years back, and after construction of houses thereon the defendants ultimately are living them since the days of their predecessor. It has also been alleged that the plaintiffs father Harinandan Jha gave 20 decimal of land of C.S. Pata No. 601 to the defendant's father Tulsi Ram on Batai of which the defendants have acquired occupancy right and are cultivating the same. They have totally denied of admitting the title and possession of the plaintiff in Title Suit No. 60/57 and undertaking being given to vacate the house of taking Rs. 50/ - from Harinandan Jha. The other stories as. depicted in the plaint regarding stoppage of payment of rent and settlement of the defendant's predecessor as tenant had been denied. Regarding the 144 proceeding, it has been averred in the written statement that on a police report proceeding was started under Section 144, Cr. P.C. and it was converted into a proceeding under Section 145, Cr. P.C. in respect of 28 decimal of land in C.S. Pata No. 601. In that proceeding, the plea of the defendant's possession over the land as Batai was found true and prohibitory orders were passed against the plaintiff not to interfere with the possession of the defendants. A Revision preferred by the plaintiff before the Sessions Judge had also been dismissed. It has further been averred in the written statement during the R.S. operation the surveying authority finding the possession of defendants father recorded his name as Sikmidar by order dated 7 -8 -1972 passed by A.S.O. under Section 103 of the B.T. Act. But the said order was not mentioned in the. remark column as a result of which a prayer for verification was made under Section 108, Sub -clause (8) of the Bihar Tenancy Act in Case No. 2889/68 and the prayer was allowed by order dated 15 -9 -69 and it has been averred that the plaintiffs predecessor Harinandan Jha had admitted in this proceeding before the Revenue authorities that the defendant's predecessor were adversely possessing the suit land along with the lands of C.S. Pata No. 601, On the basis of the pleadings of the parties, several issues were framed and the main issue was with respect to relationship of land lord and tenant between the parties. That Issue No. 4 was decided by the original Court against the plaintiff holding thereby that there was no relationship of monthly tenant and landlord between the plaintiff and the defendants and that the defendants had acquired occupancy right. On dismissal of the suit appeal was preferred by the plaintiff in Title Appeal No. 25/89 (52 of 1989) and the appellate Court also after independent scrutiny of the documentary and oral evidence came to the finding that there was no relationship of landlord arid tenant for the purpose of eviction and hence dismissed the appeal.

(3.) While admitting the second appeal, a Bench of this Court formulated the following question of law: "Whether the judgment and decree of the Courts below will vitiate for non -consideration that the defendant, respondents have admitted the title of the plaintiff appellant and in such situation they shall be deemed to be in possession as licensee over the suit lands?"