Sakila Banu v. Ram Ayodha Singh & Ors

resident of Milki Mohalla, P.S. Ara Town, District Bhojpur, Ara. ….Defendants-Appellants-Appellants -Versus-

1. Ram Ayodha Singh 2. Ram Sewak Singh 3. Krishna Kumar Singh All sons of late Ram Khelawan Singh 4. Durya Singh 5. Kamla Singh 6. Krishna Singh All daughters of late Ram Khelawan Singh, All resident of Mohalla- Bhalihipur, P.S. Arrah Town, District Bhojpur. ….. Plaintiffs-Respondents-Respondents 1st set.

7. Sakila Banu wife of late Md. Israil Mian 8. Mohammad Aurangjabe, son of late Md. Israfil 9. Mohammad Ismail 10.Mohammad Ranish 11.Mohammad Abdulla All minor sons of late Md. Israfil under the guardianship of their mother Sakila Banu.Aall resident of Mohalla Bhaluhipur, P.S. Arrah Town, District Bhojpur, Ara ….Defendant-Appellants-Respondents 2nd set.

12.Firm Manjur Ali Salauddine through one of the Partner Manjur Ali

13.Manjur Ali, son of late Mansa Mian, Resident of Mohalla-Mansa Pandey Bag, P.S. Ara Town, District Bhojpur, Ara.. ..Defendants-Respondents-Respondents 3rd set. --------- For the Appellants- Mr. Kamal Nayan Chaubey , Sr. Advocate and Mr. Kaushal Kishore Mishra, Advocate (in S.A. No. 324 of 2008) - 3 - Mr. Dhrub Narayan, Sr. Advocate and Mr. Rajiv Ranjan, Advocate . (in S.A. No. 488 of 2008) For the respondent 1 to 6- Mr. Binod Kumar Singh and Mr. Niraj Kumar, Advocates ( in both the appeals ) ------------ 07/

20.01.2009 Heard learned counsel the parties. Both aforementioned second appeals have been taken up together as they arise out of the same judgments of both the learned courts below.

2. Second Appeal No. 324 of 2008 has been filed by the heirs of defendant no.5-appellants-appellants, whereas, Second Appeal No. 488 of 2008 has been filed by the heirs of defendant no.4- appellants-appellants of their respective appeals, both challenging the common judgments and decrees of the learned courts below.

3. Both the matter arises out of Title Suit No. 18 of 1982, which was filed by the original plaintiff, whose heirs are respondents 1st set, for eviction of original defendants no. 1 to 3- respondents- respondents 2nd set from the suit premises detailed in Schedule-A of the plaint, which is 2 decimals of land appertaining to Khesra no.1391, Khata no.131, Thana no.239, Tauzi no. 414, situated in village Murshidpur Imadjani Ramna in the district of Bhojpur, which is a Gola on the ground of personal necessity of the original plaintiff and default in payment of rent by the tenant.

4. Although the suit was originally filed by the sole plaintiff Ram Khelawan Singh against original defendants no. 1 to 3 but after the death of Ram Khelawan Singh his heirs were substituted. Furthermore, defendant no.4 intervened in the suit claiming the suit - 4 - property in his own right and was impleaded as a defendant. Thereafter, defendant no.5 also claimed that defendant no.2 Manzoor Ali had kept him in the suit land since some time and he was also impleaded in the suit.

5. The said title suit was decreed on contest with cost by the learned Execution Munsif, Arrah (Bhojpur) vide judgment and decree dated 11.03.2003. The said judgment and decree of the trial court was not challenged by original defendants no.1 to 3. However, defendant no.5 filed Title Appeal No. 20 of 2003, whereas, defendant no.4 challenged the said judgment and decree of the trial court in Title Appeal No.21 of 2003. However, the learned court of appeal below, by its common judgment dated 14.09.2005, allowed both the title appeals, set aside the judgment and decree of the trial court and remanded the matter back to the trial court for fresh consideration with regard to the claim of title of the contesting defendants.

6. Against the aforesaid judgment of remand passed by the lower appellate court, the plaintiffs filed Misc. Appeal No.495 of 2005 and Misc. Appeal No.504 of 2005 and both the miscellaneous appeals were allowed by this Court vide order dated 11.05.2007 setting aside the judgment of remand and directed the learned court of appeal below to decide the said title appeals itself without any undue delay. Thereafter, both the title appeals bearing Title Appeal No.20 of 2003 and Title Appeal No.21 of 2003 were again heard by learned Additional District Judge-I, Bhojpur and by a common judgment dated 15.08.2008 and separate decrees dismissed both the title appeals - 5 - and affirmed the judgment and decree of the trial court. Against the judgments and decree of both the learned courts below , heirs of defendant no.5 have filed Second Appeal No.324 of 2008, whereas, heirs of defendant no.4 have filed Second Appeal No. 488 of 2008, both of them claiming their respective paramount title in the suit premises.

7. From arguments of learned counsel for the parties and materials on record, it is quite apparent that apart from the issues of relationship of landlord and tenant between the plaintiff and the original defendants no.1 to 3 and the bona fide personal requirement of the plaintiff and default in payment of rent by original defendants no. 1 to 3, some other issues were also framed by the trial court, namely, as to whether the plaintiff had title in respect of the suit land; as to whether defendant no.4 was the owner of the suit property by court auction sale; as to whether defendant no.5 was also tenant of the plaintiff and as to whether the ex-intermediary Karamat Hussain had settled the suit land with the grandfather of defendant no.5 in 1930, whereafter, the Gola was constructed.

8. Both the learned courts below after considering the evidence on record in detail, came to the specific conclusion that there was relationship of landlord and tenant between the plaintiff and the original defendants. It was further found that the said original defendants had willfully defaulted in payment of rent of the suit premises to the plaintiff despite demands and service of notice. It was further found that the plaintiff had made out a case of his personal - 6 - necessity of the suit premises as pleaded in the plaint, which was fully proved by valid evidence proving that he had personal necessity of opening a Clinic for his patients in his suit premises as he had no other suitable place for it.

9. So far the claim of defendant no.5 is concerned, the learned courts below considered the same as a separate issue and after considering the matters, pleadings and evidence of the parties in detail it was found that defendant no.5 and his heirs failed to prove their title in the Gola in suit by valid materials and case of settlement by ex-co- sharer landlord could also not be proved and has been found to be absolutely false and baseless. It was also found that defendant no.5 has been set up by defendant no.2 during the pendency of the suit only to deprive the plaintiff and delay the proceeding of the eviction suit. It was also found that defendant no.5 had not acquired any title even by adverse possession as his possession over Gola in suit was on the basis of permission of defendant no.2 without consent of the plaintiff. Hence, the said defendant no.2 himself being a tenant, the fate of defendant no.5 has to follow the fate of defendant no.2.

10. So far defendant no.4 is concerned, learned courts below after considering the pleadings and evidence of the parties specifically found that she claimed her ownership on the basis of auction purchase in court auction sale, but after perusal of the pleadings and evidence adduced by the parties, the learned courts below specifically found that the subject matter of the auction sale was C.S. Plot no.1392 and had nothing to do with the suit premises, - 7 - which was situated in part of C.S. Plot no. 1391. Hence, it was found the claim of defendant no.4 and his substituted representatives with respect to the suit premises was absolutely baseless and had no legs to stand.

11. The appellants also raised a plea that the land having vested in the State of Bihar, the plaintiff could not have any right, title or interest in the suit property. The said claim could also not be supported by any valid material and in any view of the matter if according to defendant no.4 or defendant no.5 the land has vested in the State of Bihar they are stopped from raising any claim over the suit premises on the basis of their own admissions.

12. In the aforesaid facts and circumstances, this Court does not find any illegality in the judgments and decree of the learned courts below nor does it find any substantial question of law in the aforesaid two second appeals, which are, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )