R.K. Merathia, J. - (1.) HEARD Mr. Lal at length.
(2.) THIS second appeal has been filed against the judgment and decree dated 1.9.2009, passed by Shri Chandra Prakash Asthana, District Judge, Jamtara, in Title (Eviction) Appeal No. 1 of 2009, confirming the judgment and decree of the trial court to the extent of granting decree of eviction in favour of respondent on equitable ground, on the score of title but setting aside the judgment and decree to the extent that -the appellant is tenant of respondent and thus he is entitled to recovery of rent or dues against the rent. The trial court judgment is dated 15.4.2009, passed by Vijay Pratap Singh, Sub Judge -1, Jamtara, in Title (Eviction) Suit No. 1 of 2006, decreeing the suit on the ground that there exists relationship of landlord and tenant and that the tenant appellant has defaulted in payment of rent. It is submitted by Mr. Lal that the trial court held that the respondent -landlord could not prove personal necessity, but it decreed the suit on the ground that there was relationship of landlord and tenant between the parties and that the appellant is defaulter. He further submitted that the appellate court though reversed the finding of the trial court and held that there was no relationship of landlord and tenant between the parties, but decreed the suit on the basis of title of the plaintiff. He further submitted that in a suit for eviction under the Bihar Building ( Lease, Rent & Eviction) Control Act ( the Act for short), decree cannot be passed for eviction on the basis of title without there being relationship of landlord and tenant. He relied on the judgment reported in : AIR 2002 SC 136 -Rajendra Tiwary v. Basudeo Prasad and Anr.
(3.) IT appears that this eviction suit was filed on the ground of default and personal necessity. The trial court after taking into consideration the materials and the evidences on record in their entirety disbelieved the claim of the tenant -appellant that the landlord had made a will in favour of Sujit Kumar Srivastava, the son of the appellant and moreover the probate case filed regarding the said will was dismissed for non prosecution. It further observed that Sujit Kumar Srivastava, the son of the tenant appellant said that he was a tenant in the suit premises. The trial court ultimately held that there was relationship of landlord and tenant between the parties and that the tenant -defendant -appellant is defaulter and therefore granted decree for eviction of the appellant. The appellant preferred appeal. The appellate court held that there was no relationship of landlord and tenant but on the basis of title of the landlord -plaintiff -respondent decreed the suit.;