Dr. Satyanarayan Gupta v. Ram Lakhan Sahu

: Mr. Shashi Shekhar Dwivedi, Senior Advocate. Mr.Shailendra Kumar Dwivedi, Advocate. For respondent no.2 : Mr. Krishna Kant Singh, Advocate. ---- O R D E R

06.05.2009 Let defect no.1 vide stamp report dated 08.04.2009 be ignored.

2. I.A.No.757 of 2009 has been filed on behalf of the appellant for condoning the delay in the filing of the instant second appeal. Considering the statements made in the interlocutory application, it appears that genuine reasons have been shown due to which delay had occurred. Accordingly, delay is condoned and the said interlocutory application is allowed.

3. This second appeal has been filed by defendant no.2- respondent no.2-sole appellant against the judgments and decree of both the learned courts below. - 2 -

4. The matter arises out of Eviction Suit No.01 of 2004 which was filed by plaintiff-respondent no.1-respondent no.2 for eviction of defendant no.1-sole appellant-respondent no.1, who was claimed to be the tenant, along with his sub-tenant, defendant no.2- respondent no.2-appellant on the grounds of default in payment of rent by the tenant-defendant no.1 since March, 2003 and sub-letting to defendant no.2 violating the terms of the tenancy and for arrears of rent and other ancillary reliefs.

5. The said suit was decreed on contest by the learned Munsif-II, Madhubani vide his judgment and decree dated

23.09.2006. Against the aforesaid judgment and decree of the trial court only defendant no.1, who is respondent no.1 in the instant second appeal, namely the tenant, filed Eviction Appeal No.05 of 2006 which was dismissed on contest by learned Additional District Judge-cum-Fast Track Court No.1, Madhubani vide his judgment and decree dated 16.08.2008.

6. The aforesaid judgment and decree of the learned court of appeal below was not challenged by defendant no.1(tenant), who was the appellant in the title appeal, whereas the instant second appeal has been filed by defendant no.2 (sub-tenant) who had not challenged the judgment and decree of his eviction passed by the trial court, nor was he an appellant in the title appeal, rather he was merely a proforma respondent and only when defendant no.1 lost his title appeal, the said defendant no.2 filed the instant second appeal challenging the judgments and decree of both the learned courts - 3 - below.

7. From the arguments on behalf of learned counsel for the appellant (defendant no.2) and respondent no.2 (plaintiff) as well as from the materials on record, including the impugned judgments and decree of the learned courts below, it is quite apparent that defendant no.1 was originally the owner of the suit premises, whereas the plaintiff was claiming to be a purchaser from him, whereafter defendant no.1 had become his tenant on payment of monthly rent, whereas defendant no.2 is the son-in-law of defendant no.1 and, according to the plaintiff, he was a sub-tenant of his father- in-law-defendant no.1.

8. The defendant-appellant had raised an issue of title, but having admitted that he was the son-in-law of defendant no.1, it is quite apparent that the appellant (defendant no.2) had no right, title or interest in the suit property and if, according to the case of the defendants, any right was involved it was the right of defendant no.1 on the basis of the suit property being joint family property, but on the basis of the sale by defendant no.1 in favour of the plaintiff, the said right had also extinguished and in any view of the matter, the said defendant no.1, having lost in title appeal, has not bothered to challenge the judgment and decree of the learned court of appeal below and was satisfied by the said judgment and decree. In the said circumstances, defendant no.2 claiming on the basis of the fact that he was the son-in-law of defendant no.1, he has absolutely no right or interest in the suit property. - 4 -

9. In the aforesaid circumstances, the learned courts below held that pure factum of title cannot be decided in the suit, but incidentally the ownership of the parties can be looked into and on the basis of pleadings and evidence, the plaintiff has incidentally proved his prima facie ownership of the suit premises. After considering the pleadings and evidence of the parties, both the learned courts below came to a concurrent finding of fact that Kriyanama (Ext.-1) was created between the plaintiff and defendant no.1 and although, according to Finger Print Expert, the signature of defendant no.1 over the said Ext.-1 did not tally with his admitted signature, the learned courts below on the basis of the statements made by the Finger Print Expert in his deposition found that some shrewd person may change his signature for the purpose of litigation while filing his pleading and vakalatnama in the suit. Furthermore, from the other evidence available on the record, the learned courts below clearly found that there was relationship of landlord and tenant between the parties which had been fully established by the plaintiff by cogent evidence. So far the questions of arrears of rent as well as personal necessity are concerned, both the learned courts below gave concurrent findings with respect thereto after full consideration of the evidence of the parties, both oral and documentary.

10. The aforesaid findings being findings of facts, this court under the provision of Section 100 of the Code of Civil Procedure should not interfere, especially when the said findings are - 5 - based upon evidence, both oral and documentary, which have been legally considered. In the said circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)