DILIP BHAGAT, Vs. ARUN KUMAR MODI

JUDGEMENT

(1.) THIS is the defendants' second appeal against the judgment of affirmance passed by learned District Judge, Dumka in Title (Eviction) Appeal No. 4 of 1994 dismissing the appeal and upholding the judgment and decree of eviction passed in Eviction Suit No. 20 of 1980.

(2.) THE plaintiff had filed the said suit seeking decree for eviction/ejectment of the defendants from the suit premises and recovery of arrears of rent. The plaintiffs case is that Plot No. 947 measuring an area of 1 bigha 9 kathas and 13 dhur is Basouri land and the plaintiff is the landlord of the same. The suit premises was let out to the defendants on a monthly rent of Rs. 25/ - on 06.02.1962. The defendants have been carrying business of motor repair etc. in the suit premises. The defendants defaulted in payment of rent for the period from February 1968 to August, 1968. Notice under Section 106 of the T.P. Act was served in the month of September 1969 terminating his tenancy and calling upon him to deliver vacant possession of the suit premises and to pay arrears of rent. When the defendants failed to comply with the same, Title (Eviction) Suit No. 43 of 1971 was filed by the plaintiff. In the said suit the defendants appeared and compromised the suit. The defendants paid the arrears of rent and also promised to pay the rent regularly. The defendants, again, defaulted in payment of rent for March 1979 to November 1979. Again a notice under Section 106 of the T.P. Act was served upon the defendants terminating the tenancy and calling upon the defendants to deliver vacant possession of the suit premises. The defendants did not comply with the same. Hence, the present suit was filed praying decree for eviction of the defendants and for arrears of rent.

(3.) BOTH the parties adduced evidences, oral and documentary. Learned Trial Court, on thorough discussion and consideration of the evidences brought on record, has held that the suit land is a Basouri land and that the same was excluded by the official gazette notification being S.O. No. 1387 dated 14.10.1977 and is outside the purview of Section 5 of the Santhal Pargana Settlement Regulation, 1872. Learned Court below has also held that the Civil Court has got jurisdiction to try the suit and that the defendants are the defaulter in payment of rent and a sum of Rs. 600/ - became due on account of arrears of rent. Learned Court below further held that the plaintiff is entitled to decree prayed for and decreed the suit. The defendants then preferred an appeal against the said judgment and decree of the Trial Court in the Court of the District Judge, Dumka which was registered as Title (Eviction) Appeal No. 4 of 1994. The said title appeal was earlier heard by Second Additional Sessions Judge, Dumka, who by his order dated 23.01.2004 had framed two additional issues and had remanded the case to learned Trial Court for recording the findings afresh. Against the said judgment, the plaintiff -appellant had filed Miscellaneous Appeal No. 35 of 2004 in this Court and by a judgment dated 22.06.2004 the order of remand was set aside and the matter was remitted to the Appellate Court with a direction to decide the Title Appeal No. 4 of 1994 on merit in accordance with law by applying mind afresh after giving opportunities to the parties. Learned District Judge, Dumka thereafter heard and finally decided the said appeal by the impugned judgment and decree. Learned Lower Appellate Court, in view of the grounds taken by the defendants/appellants, has thoroughly dealt with and considered the relevant facts, evidences and materials on record. Learned Appellate Court, after thorough discussion and consideration, has come to the finding that the provisions of Section 5 of the Santhal Pargana Settlement Regulation is not attracted on the Basouri land. Learned Appellate Court has held that the Trial Court has rightly placed reliance on Exhibit 'D', the hindi notification and also Exhibit '7' and Exhibit '8' and has rightly come to the conclusion that Section 5 of the Santhal Pargana Settlement Regulation is not attracted on Basouri land. It has been further held that learned Trial Court has rightly held that the Civil Court has got jurisdiction to try the suit. Learned Lower Appellate Court has, thus, concurred with the findings of learned Trial Court on the said issues and dismissed the appeal.