- (1.) This is an appeal for setting aside order dated 31.7.1998 passed by the learned Single Judge of Patna High Court whereby he dismissed the civil revision preferred by the appellants against dismissal of the application filed by them for execution of the decree of eviction.
(2.) Appellant No.1, Bibi Zafira Khatoon and her husband Syed Mohammed Jalaluddin (since deceased) filed suit for eviction of respondent No.2, Mohammed Manzurool Haque from a portion of their residential house situated at Motihari on the grounds of personal and bonafide necessity and default in payment of rent. In the plaint, it was averred that appellant No.1 and her husband were influenced by the claim of respondent No.2 that he possessed spiritual powers and will bring peace in their family and, therefore, allowed him to occupy a portion of the house at a monthly rent of Rs.190/-. It was further averred that Syed Mohammed Jalaluddin was going to retire from service very soon and he was desirous of living in his own house. The ground of default was elaborated by stating that respondent No.2 did not pay rent for the period from January, 1981 to December, 1983. In the written statement filed by him, respondent No.2 denied the very existence of the landlord-tenant relationship between the parties. He claimed that he never occupied the house belonging to appellant No.1 and her husband or any portion thereof as a tenant. While admitting that he possessed spiritual power, respondent No.2 pleaded that appellant No.1 and her husband sought his blessings and they were immensely benefited by his association. According to respondent No.2, appellant No.1 and her husband felt that their house was haunted by evil spirits who killed their two sons and requested him with folded hands to use his spiritual power to drive away the evil spirits and, therefore, he agreed to occupy one room in the year 1978. Respondent No.2 further pleaded that Syed Mohammed Jalaluddin requested him to find out some purchaser and after some talks, the sale of house was finalized with respondent No.1, Mohammed Hussain. Thereafter, agreement (mahadanama) dated 9.1.1982 was executed between appellant No.1, her husband and respondent No.1 and the latter was given possession of the house. Respondent No.2 also made a mention of the suit filed by respondent No.1 for specific performance of the agreement for sale. Respondent No.1, who had already filed Title Suit No.76/1983 (renumbered as 196/1987) for specific performance of the agreement, got himself impleaded as intervenor defendant in the eviction suit and filed written statement supporting the case set up by respondent No.2.
(3.) The title suit filed by respondent No.1 and the eviction suit filed by appellant No.1 and her husband were clubbed because the subject matter of both the suits was common. On the pleadings of the parties, the trial Court framed 12 issues, including the following: 3. Whether the alleged Mahadanama dated 9.1.1982 valid, legal and admissible document and can be basis of any suit 5. Whether plaintiff of T.S. No.76/1983 was put in possession of the suit house by defendant Syed Md. Jalaluddin 6. Whether the alleged Mahadanama is enforceable in law and the plaintiff is entitled to a decree for specific performance of contract ;