VISHNUDEO NARAYAN, J. - (1.) NAND Gopal Sah Versus State Of Jharkhand 1 This appeal at the instance of the plaintiff -appellant has been preferred against the impugned judgment and decree dated 23.1.2004 and 12.2.2004 respectively passed in Title (Eviction) Appeal No. 4 of 1994 by Shri Anirudh Prasad Sharma, 2nd Additional District Judge, Dumka whereby and whereunder the judgment and decree of the trial Court passed in Title (Eviction) Suit No. 20 of 1980 were set aside and appeal was allowed and the case was remitted to the trial Court for a fresh decision on further issues having been framed.
(2.) THE plaintiff -appellant has filed the said suit for eviction of the defendant from the suit land detailed in Schedule -A of the plaint and for realization of arrears of rent amounting to Rs. 600.00 . The suit land bearing Plot No. 947 having an area of 1 bigha, 9 katthas and 14 dhurs in Mauza -Rasikpur (Raghunathganj) No. 2, Police Station -Dumka. Town, Sub -Division -Dumka Santhal Pargana is Basauri land leased out to the original defendant. The case of the plaintiff -appellant, in brief, is that the suit land was let out to the defendant on the monthly rent of Rs. 25/ - on 6.2.1962 (Ext. 1/A) and the defendant is a month to month tenant and the defendant began to use the suit land for motor garage and began to carry the business of motor repairing etc. and the defendant paid the rent till June 1967 and by mutual oral agreement, the rent was enhanced to Rs. 40.00 per month and the defendant paid the rent from July 1967 till the month of January 1968 at the rate of Rs. 40.00 per month and the rent was payable in the first week of the following month. The defendant became defaulter due to the non -payment of the rent from February 1968 and after service of notice under Sec.106 of the Transfer of Property Act determining the tenancy in question and he approached the plaintiff and requested to pardon his default and made the payment of Rs. 400.00 on 20.5.1970 towards the arrears of rent for the month of February 1968 to June 1968. Thereafter the defendant again defaulted in payment of the rent from July 1968 to November 1970 and notice under Sec.106 of the Transfer of Property Act was served upon him in the month of December 1970 determining, his tenancy directing him to vacate the suit land and to pay the arrears of rent but it did yield no result and the plaintiff filed Title (Eviction) Suit No. 43 of 1971 against the defendant and the defendant appeared in the said suit and the said suit was compromised (Ext. 11) and the defendant paid the arrears of rent and undertook and agreed that he shall retain the possession of the suit land as month to month tenant under the plaintiff and in default liable to be evicted from the suit land and the suit was decreed on 17.4.1972 in terms of the compromise. The further case of the plaintiff is that the defendant again defaulted in payment of the rent from March 1979 to November 1979 and a notice under Sec.106 of the Transfer of Property Act was served upon the defendant determining his tenancy directing him to vacate the suit premises but the defendant did not vacate the suit premises even after expiry of the period given in the said notice. It is also alleged that the plaintiff also reasonably and bonafidely requires the suit land for his use and occupation. Hence the necessity of the suit.
(3.) THE case of the original defendant, inter alia, is that the suit land is not the exclusive property of the plaintiff and it also belongs to his brothers to his brother Ram Dayal Modi, Bibhuti Prasad Modi and his son Arun Modi and others and the suit land is not a Basauri land and it is outside of the jurisdiction of Dumka Municipal area where the settlement operation is going on and Sec. 5 of the Santhal Pargana Settlement Regulation 1872 bars the jurisdiction of this Court and the suit ought to have been filed before the Settlement Court. His case further is that he has taken the suit premises on a monthly rent of Rs. 25/ - which was later on enhanced to Rs. 40.00 per month but the rent was not payable in the first week of the following month, rather, it was to be paid at the convenience of the defendant and he has never defaulted in payment of rent and he has paid Rs. 200.00 on 20.5.1970 as per the terms of oral agreement. It is alleged that the plaintiff wanted to enhance the rent of the suit premises to which he did not agree and the plaintiff brought Title (Eviction) Suit No. 43 of 1971 which was disposed of in terms of compromise and the defendant was allowed to continue in the suit premises as tenant and thereafter whenever the defendant went to pay the rent, the plaintiff did not accept the same with some plea or other and asked the defendant to enhance the rent at the rate of 100.00 per month to which the defendant did not agree and the defendant paid Rs. 400.00 on 2.1.1980 being the monthly rent of the suit land from March 1979 to December 1979 and again the defendant sent Rs. 600.00 by M.O. on 11.6.1980 for the rent of fifteen months but the defendant refused to receive the same and still he is ready and willing to pay the rent to the owner of the suit premises. It is also alleged that the plaintiff and his co -sharers have several houses in the town of Dumka and other places and the plaintiff does not require the same for his personal use and occupation. Lastly, it has been alleged that notice under Section 106 of the Transfer of Property Act has not been served properly upon him. 20/5/2014 Page 37;