M.Y.EQBAL, J. - (1.) THIS appeal under Sec. 100 of the Code of Civil Procedure by the defendant/appellants is against the judgment of affirmance. Plaintiff/respondent's suit for decree for eviction of the defendants from the suit premises and for delivery of possession was decreed by the Additional Munsif, Hazaribagh in Title Suit No. 1993/1969 and the same was affirmed by the Additional District Judge, Hazaribagh in Title Appeal No. 14/77 in terms of judgment and decree dated 25.1.1977.
(2.) PLAINTIFF 's case inter alia was that plaintiff is owner of Khapra posh house and land bearing plot No. 944 Municipal Holding No. 340 Ward No. VII of Haharibagh Municipality. Southern block of the said house was let out by the plaintiff to the defendants on monthly rent of Rs. 30.00 per month. The southern block consists of 4 rooms plus kitchen and latrine and was held and possessed by the plaintiff. It was alleged that since October, 1966, the defendant did not pay rent and became defaulter and made himself liable for eviction under the provisions of Sec. 11(i)(d) of the Bihar Building Lease, Rent & Eviction) Control Act, 1947. After serving legal notice by the plaintiff the aforesaid suit was filed. The defendants contested the suit by filing written statement stating inter alia that the suit was frivolous and not maintainable. Defendant denied ownership of the plaintiff over the suit premises and further that defendant was never inducted as tenant and there was no such tenancy. Defendants claimed themselves to be the owner of the entire house and there was no relationship of landlord and tenant between the plaintiff and the defendants. Defendants' further case was that defendants' ancestors migrated to Hazaribagh in search of business prospects and started their business at different places. The ancestors were four brothers, namely, Shiv Narainlal Seth, Survasukh Ram Seth, Tensukh Ram Seth and Harsukh Seth who constituted a joint Hindu Mithaksha family and joint business was started in the name of M/s Lachhiram Shiv Narain. Defendants' further case was that in the year 1917 the condition of the joint family was deteriorated and the family was in heavy debt. Jay Nath Modi and Birju Ram Modi filed Misc. Case No. 3/1915 against Sarvasukh Ram Seth. The suit premises and the contiguous northern part of the suit were auction sold and purchased by decree holder Narayan Ram Modi and others but they did not take delivery of possession. On the other hand, the joint family in order to protect the property filed Title Suit No. 56/1988 against Narayan Ram Modi and others for declaration with interest of the joint family of the suit. Subsequently, Narayan Ram Modi in order to avoid litigation offered to sell both the holdings on mere returning the decreetal amount in favour of the plaintiff of that suit and they wanted to acquire the property benami by mentioning the name of Dil Sukh Sarangi who was a close relative of the family. Accordingly, property was acquired by the joint family in the benami name of Dilsukh Rai Sarangi on payment of consideration amount by the joint family. Defendants' ancestors were plaintiff in Title Suit No. 55/28 purchased the property by getting the sale deed executed in the name of Dilsukh Rai Sarangi. Various other defenses were taken by the defendants.
(3.) THE Trial Court decreed the suit deciding all the issues in favour of the plaintiff and being aggrieved by the said judgment and decree, defendants preferred Title Appeal No. 14/77 which was finally heard by Additional District Judge, Hazaribagh who affirmed the decree passed by the trial court and decreed the suit. The defendants then preferred Second Appeal No. 72/78R which was heard by this Court and the same was allowed and the matter was remanded back to the court of appeal below for giving a fresh decision.;