Hari Shankar Sah v. Ram Kailash Sah

The plaintiff appellant appellant has filed this second appeal against the judgment and decree dated 23.10.2008 passed by the learned Additional District Judge, Fast Track Court, Sheohar at Sitamarhi in Title Appeal No. 8 of 2007/ 26 of 2007 whereby the lower appellate court allowed the appeal and reversed the judgment and decree passed by the trial court dated

14.12.2006 by the learned Munsif, Seohar at Sitamarhi in Title Suit No. 17 of 2003. The plaintiff filed the aforesaid suit for eviction of the defendant from the suit premises alleging that both the parties are brothers. There was partition between the parties during the Patna High Court SA No.451 of 2008 (5) dt.24-07-2013 2 life time of father Nathuni Sah, therefore, the plaintiff withdrew the partition suit No. 104 of 1997 wherein the father of the plaintiff filed a written statement giving the details of the partition and allotment of the properties to the different parties. After partition when the plaintiff requested the defendant to vacate the suit premises he agreed to pay Rs.300/- rent per month and the plaintiff allowed him to stay there as a tenant. However, the defendant became defaulter and therefore, the suit has been filed. The defendant filed contesting written statement alleging that there has been no partition between the parties and defendant is in occupation of the properties as owner thereof being a coparcener.

The trial court considering the materials available on record came to the conclusion that there had been partition between the parties and the written statement filed by father Nathuni Sah in earlier partition suit No. 104 of 1997 the suit property was allotted in favour of the plaintiff. The trial court also recorded the finding that there is relationship of landlord and tenant between the parties. Accordingly, decreed the plaintiff’s suit. On appeal, the lower appellate court recorded the Patna High Court SA No.451 of 2008 (5) dt.24-07-2013 3 finding that there is no partition between the parties and since there is no partition the defendant is residing in the suit premises as co-owner, therefore, there is no relationship of landlord and tenant between the parties. The learned counsel Mr. Kumar Uday Singh appearing on behalf of the appellant submitted that in an eviction suit the courts below could not have decided the title of the parties in full fledged manner.

In the present case, the lower appellate court did not believe the written statement filed by the father of the parties in earlier suit No. 104 of 1997 on the ground that the plaintiff did not pray for examination of expert for comparing the disputed signature of the father on the written statement whereas the onus was on the defendant who challenged that his father had not signed the written statement. The learned counsel further submitted that the witnesses have supported the case of the partition but the lower appellate court disbelieved the witnesses and recorded a wrong finding that there had been no partition and, therefore, there is no relationship of landlord and tenant between the parties. Admittedly, the plaintiff and the defendant are the two brothers being the sons of late Nathuni Sah. It is admitted fact that the present plaintiff filed earlier title suit No. 104 of Patna High Court SA No.451 of 2008 (5) dt.24-07-2013 4 1997 for partition of the suit property making the father Nathuni Sah and the present defendant as party in the suit.

It is also admitted fact that the plaintiff withdrew that suit. The main contention of the plaintiff appellant is that since there was partition between the parties subsequent to the filing of the said partition suit the plaintiff withdrew the suit. The lower appellate court recorded the finding that if in fact there was compromise and in fact there was partition they should have filed any compromise application but there is no compromise decree passed in the said suit. The plaintiff withdrew the said suit unconditionally. It is admitted fact that the present defendant neither appeared nor filed a written statement in the said suit. The written statement filed by father is not signed by the present defendant, therefore, the statement made by the father in written statement will not be read against the interest of the present defendant. Moreover, since the present suit has been filed by the plaintiff for eviction of the defendant on the ground of defaulter as provided under Section 11(1)(d) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982, the question of title cannot be decided in this case.

The main case of the plaintiff is based on his title on the basis of partition between the parties. The defence is that there has been no partition between the parties and the Patna High Court SA No.451 of 2008 (5) dt.24-07-2013 5 defendant is residing as co-owner thereof. Now, therefore, there is complicated question on title involved between the parties in the suit. In an eviction suit this complicated question on title cannot be decided as has been held by the Hon’ble Supreme Court in the case of Rajendra Tiwary vs. Basudeo Prasad and another AIR 2002 SC 136. Therefore, any decision on this complicated question of title regarding partition or no partition will not affect the rights of the parties. Now, therefore, it becomes admitted case that the parties are the co-owner of the property. Can it be said that there is relationship of landlord and tenant between the parties when the defendant is saying that he is residing as owner in the suit property.

This question is dependent on the question of partition therefore, unless there is clear decree of partition between the parties, the defendant cannot be evicted under the B.B.C. Act. Moreover, considering these aspects of the matter, the lower appellate court has recorded the finding that there is no relationship of landlord and tenant between the parties. In my opinion, therefore, this is a pure question of fact. It is settled principles of law that merely because another view is possible on the basis of materials, the High Court has no jurisdiction to substitute the other view vide the decision of the Hon’ble Supreme Court reported in 2012 (7) SCC 288 Patna High Court SA No.451 of 2008 (5) dt.24-07-2013 6 Vishwanath Agrawal vs. Sarla Vishwanath Agrawal (Pr. 37). In view of the above facts and circumstances of the case, I find that no substantial question of law is involved in this second appeal for decision and accordingly, this second appeal is dismissed at the stage of admission itself. S.S./- (Mungeshwar Sahoo, J)