NARENDRA NATH TIWARI, J. - (1.) THIS appeal has been preferred by the defendant -appellant. The plaintiff had filed the suit for declaration of his title and for restoration of khas possession. The plaintiff 'scase was that the suit property described in Schedule -A was originally recorded in the name of Chaitan Kumar in the last cadastral survey. From the first wife, Chaitan Kumar had eight sons and from the second wife Chaitan Kumar had two sons -Doman and Ganesh. It was stated that Schedule -A property was in exclusive possession of Doman Kumar which was also mentioned in remarks column of the Survey record, Doman Kumar died leaving behind his only son Manager Kumar, Manager Kumar was in exclusive possession of the suit property which was later on transferred to Thulai Kumar by virtue of registered sale -deed in the year 1959. Since after the said transfer Thulai Kumar was coming in possession and after his death the same was inherited by his two sons namely Khonku and Sukhdeo. Sukhdeo transferred the said land to the extent of half share i.e. 11/2 decimal of the said plot to the plaintiff by virtue of registered sale -deed dated 6.9.1978. After the death of Khonku. his wife Khoma Kumarin also transferred his remaining 11/2 decimal of the suit plot to the plaintiff by virtue of the registered sale -deed dated 19.6.1979 and thereby the plaintiff became the exclusive owner of the Schedule -A properties. Earlier Rameshwar Bhagat used to live in the same portion and after the death of Rameshwar Bhagat, Chintamani Devi had let out a room out of Schedule -A premises, described in Schedule -B, to defendant No. 2, on the monthly rent of Rs. 15/ - . The said defendant No. 1 fell in urgent need of money and she offered to sell her occupied property described in Schedule -B and Schedule -C which the plaintiff purchased for valuable consideration by two registered sale deeds No. 4791 and 4796 both dated 19.6.1979, in order to avoid any future complication, knowing fully well that the defendant No. 1 had no title to the suit land. After the said transfer the defendant No. 1 requested the plaintiff to allow her to remain in the house for a few months and for which she agreed to pay a monthly rent of Rs. 25/ - per month and defendant No. 2 also agreed to pay the rent of Rs. 15/ - per month for allowing them to occupy the Schedule -C premises. It was stated that the plaintiff has been paying rent to the State regularly and in the recent survey operation, the plaintiffs name has been recorded and draft Parcha has been issued in his name. Further case of the plaintiff is that the said defendant Nos. 1 and 2 paid rent in respect of Schedules -A and B premises till August 1985 and thereafter they stopped payment. The plaintiff thereafter served notice demanding vacant possession but to no effect. The plaintiff then filed eviction suit Nos. 2/86 and 3/86 respectively in the Court of the Munsif, 2nd, Dhanbad which were subsequently withdrawn. It was the further case of the plaintiff that the defendant Nos. 1 and 2 have got no right, title and interest over the Schedules B and C premises and as such, the plaintiff is entitled to get khas possession by evicting them from Schedules B and C premises.
(2.) THE defendants appeared and contested the suit. The defendant Nos. 1 and 2 mainly, contested the suit by filing their joint written statement. According to the said defendants the suit was barred by a constructive res judicata as the earlier. Title eviction suit Nos. 2/86 and 3/86 were withdrawn and no permission was sought for filing fresh suit on the same cause of action. It was further submitted that Thulai Kumar during his life time had transferred plot No. 858 to Rameshwar Bhagat, husband of defendant No. 1, by sale deed dated 24.10.1964 and has put him to possession. However by mistake the plot number in the sale deed dated 24.10.1964 was mentioned as 160 instead of plot No. 858. It was submitted that after the said purchase Rameshwar Bhagat constructed a house and began to reside to the knowledge of the plaintiffs. After the death of Rameshwar Bhagat, the suit property was inherited by defendant No. 1 being the legal heir of Rameshwar Bhagat. Defendant No. 1 inducted the defendant No. 2 as a tenant on a portion of plot No. 858 on a monthly rent of Rs. 15/ - in the year 1972. Defendant No. 2 has been paying rent to defendant No. 1 of the suit house premises. It was stated that defendant No. 1 never sold any land to the plaintiff but the plaintiff has taken the benefit of the illiteracy of the defendant No. 1 and managed to get the sale -deed executed. It was stated that any such document has never been acted upon and it was not supported by any consideration. It was stated that defendant No. 1 has been occupying the Schedule -A land as an absolute owner thereof and as such the plaintiff is not entitled to any relief. On the basis of the pleadings of the parties, the trial Court framed the following issues : - -(i) Is the suit maintainable in the present form? (ii) Whether the plaintiffs have got any cause of action? (iii) Whether the suit is barred under the provisions of waiver, estoppel, acquiescence and constructive res judicata? (iv) Whether the plaintiff is entitled for any decree? (v) To what relief the plaintiff is entitled?
(3.) AFTER considering the evidences adduced by both the parties, oral and documentary, the trial Court held that there was no material to prove that the suit was bared by waiver, estoppel and acquiescence. Regarding the plea of bar of constructive res Judicata, the trial Court held that the earlier suits were withdrawn without any adjudication by the Court and also that the earlier suits were suits for eviction under the provision of Bihar Building (Lease, Rent and Eviction) Control Act, whereas the instant suit is for declaration of title and as such the suit is not barred by the principles of res judicata. The trial Court also decided issues Nos. i, ii, iv and v against the defendants and in favour of the plaintiff and the aforesaid suit was decreed with costs.;