RAMESH SAO Vs. SHIVA PRASAD GARARI

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree dated 27.8.1997 passed by Smt. Shakuntala Sinha, Additional District Judge, I Patna, in Title Appeal No. 35 of 1990 by which the judgment and decree dated 28.2.1990 passed by Munsif IIl, Patna, in Title Eviction Suit no. 112 of 1988 has been reversed and eviction Raj Kumar Ram Versus State Of Bihar decree has been granted.

(2.) THE respondent -plaintiff fifed the above mentioned eviction suit for ejectment of the appellant -defendant from the suit premises on the ground of personal necessity and also on the ground of defaulter. The case of the plaintiff is that the suit premises along with others were gifted to him and his brother jointly by a deed of gift dated 11.12.1940 vide exhibit - 4 and in the year 1970 there was partition between the two brothers, the suit premises fell into the share of the brother and afterwards he had purchased the suit premises from his brother. The defendant was inducted when the suit premises were jointly owned by the plaintiff and his brother in the year 1965, by the plaintiff alone, and he was realising the rent and after purchase also the defendant remained his tenant although in the meantime as per case of the defendant the rent was being paid by him to the plaintiff and his brother and to the mortgagee when the suit premises was mortgaged in the year 1975 to another person, namely, Vidyanand Rai. That originally the defendant was inducted by the plaintiff has not been denied but because of the subsequent change of time and of mortgagee etc. It was pleaded by the defendant that the plaintiff had no right to evict him as the defendant became endorsee to his brother and subsequently to the mortgagee Vidyanand Rai and that he was paying rent to the brother of the plaintiff and also to the mortgagee. The plaintiff denied all these facts and it was his case that the plaintiff remained the landlord and the defendant was paying rent to him.

(3.) THE legal position remains that even if there was only a simple mortgage, there cannot be any delivery of possession in the form of usufructuary mortgage as the defendant remained as a tenant over the suit premises admittedly continuously since the date of his induction in the suit premises. Even if the charge of mortgage is there the title of the plaintiff over the suit premises cannot be denied and he being the landlord on the basis of inducting the tenant then he is the person who can evict the tenant as a landlord as the relationship continued and had never been withdrawn during intermediary period. Thus on the facts as stated above I also come to the finding that the relationship of the landlord and tenant were there between the plaintiff and defendant till the filing of the suit and the decree granted by the appellate court on this score cannot be interfered. The substantial question of law framed by a Bench of this Court in the following form,