Jharkhand High Court
Mrityunjay Kumar Pandey And Others vs Smt. Phulsahiban And Others on 12 October, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND, RANCHI
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S.A. No.272 of 2009
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Mrityunjay Kumar Pandey and Others .... Appellants
-- Versus --
Smt. Phulsahiban and Others .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants :- Mr. Sunil Kumar, Sr. Advocate Mr. Ayush Aditya, Advocate For the Respondents :- Mr. Suraj Singh, Advocate
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47/12.10.2023 I.A. No.8405 of 2023 has been filed wherein prayer is made for further incorporating substantial question of law disclosed in paragraph no.5 of the said petition. It has also been pointed out in paragraph no.4 that now in the year 2022, I.A. No.3251 of 2022 has been filed and in view of that the present the prayer is made out to withdraw that I.A.
2. Mr. Singh, the learned counsel for the respondent has got no objection.
3. In view of that, I.A. No.3251 of 2022 is dismissed as withdrawn.
4. Mr. Sunil Kumar, the learned Sr.counsel appearing on behalf of the appellants submits that at the time of admission of this second appeal, the substantial question of law was formulated, however, the substantial question of law proposed in paragraph no.5 of the said I.A. is further essential to decide the lis.
5. This Second Appeal was admitted by order dated 02.08.2010 formulating two substantial question of law. It appears that this matter is arising out of eviction suit and there are concurrent finding of two learned courts and the further proposed substantial question of 2 law disclosed in paragraph no.5, it appears that these are directly linked with the lis in question.
5. Mr. Singh, the learned counsel appearing on behalf of the respondents has got no serious objection if the proposed substantial question of law is incorporated.
6. In view of the above, the following additional substantial questions of law to address the issue in question is being formulated.
"(i) Whether the judgment and decree of the court below is vitiated for not considering that whether the alleged power of attorney holder can depose oral evidence in respect of a plaint wherein though the plaintiff states on solemn affirmation that the statement made in the plaint are true to her personal knowledge she does not appear in the witness box to depose in support of the pleading in the plaint?"
(ii) Whether the judgment and decree of the court below is vitiated for the fact that whether the suit for eviction of the appellants, the alleged tenant, ought to have been dismissed on the ground of estoppel "per rem judicatam" in view of the fact that in the earlier proceedings before the Hon'ble High Court, plaintiff in unequivocal terms has described the appellants/ defendants as a "Rank Encroacher" / illegal occupant of the suit property, which was duly recorded also in the order passed by Hon'ble High Court?
(iii) Whether one common suit on behalf of two separate owners, one having purchased a house for which allegedly rent was being paid and the other having purchased an orchard for which only cost of fruits were being paid was maintainable under the provision of B.B.C Act?, and
(iv) Whether the owner of a plot of land which admittedly is not a building for which no rent was being paid would come under the definition as landlord as defined order BBC Act and whether the ground of personal necessity or default is available in law for eviction under the provisions of the BBC Act?
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7. Mr. Singh, the learned counsel for the respondents submits that another date may kindly be fixed in order to prepare him on the further substantial question of law which has been formulated today. He further submits that early date may kindly be fixed.
8. I.A. No.8405 of 2023 is disposed of.
9. I.A. No.4465 of 2016 also filed for formulation of substantial question of law is also stands disposed of.
10. Since the date has already been fixed with consent of the parties, I.A. No.8118 of 2023 filed for fixing specific date of hearing of the matter is disposed of.
11. Let this matter appear on 07.12.2023 at 03.30 p.m. ( Sanjay Kumar Dwivedi, J.) SI/,