Patna High Court - Orders
Md. Mustafa Khan Alias Mustafa Khan ... vs Md. Ali Khan And Anr on 22 September, 2023
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.5 of 2018
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Md. Mustafa Khan Alias Mustafa Khan Alias Ghulam Mustafa Khan son of
Late Manzoor Khan resident of village Talkhapur Dumra, Police Station
Sitamarhi, District Sitamarhi.
... ... Appellant/s
Versus
1. Md. Ali Khan and Anr son of Md. Jan Khan resident of village Talkhapur
Dumra, Police Station Sitamarhi, District Sitamarhi.
2. Md. Kusus Khan son of Late Manzoor Khan resident of village Mananpur,
Police Station Runnisaidpur, District Sitamarhi presently residing at Village
Talkhapur Dumra, Police Station Sitamarhi, District Sitamarhi.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Md. Waliur Rahman, Advocate
Mr. Puspendra Kumar, Advocate
For the Respondent/s : Mr. J.S. Arora, Sr. Advocate
Mr. Vinod Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL ORDER
17 22-09-2023The present Second Appeal has been preferred against the judgment and decree dated 06.09.2017 and 29.09.2017 respectively, passed by the Ld. Fast Track Court No. 2, Sitamarhi in Eviction Appeal No. 26 of 2009 / 04 of 2017, reversing the judgment and decree dated 30.05.2009, passed by the Additional Munsif, Sitamarhi in Eviction Suit No. 2 of 2002.
2. The relevant facts of the case is that the Respondent No.1 herein preferred a suit against the Appellant and Respondent No.2 herein for eviction of the suit premises on the ground of personal necessity and default of payment of arrears of the rent as well as for declaration of Basgit Parcha, granted by the Circle Officer, Dumra, in favour of Defendants is invalid. Patna High Court SA No.5 of 2018(17) dt.22-09-2023 2/5
3. After trial, the suit was dismissed by the Ld. Trial Court finding that the District Collector was necessary party to decide the validity of the alleged Basgit Parcha and there in no landlord-tenant relationship between the parties. The losing Plaintiff preferred appeal before the Ld. District Judge in First Appeal bearing Eviction Appeal No. 26 of 2009 (4/2017) and Ld. First Appellate Court set aside the judgment and decree passed by the Ld. Trial Court and allowed the appeal finding that alleged Basgit Parcha is invalid, forged and fabricated and there was landlord-tenant relationship between the parties and the Respondent-Defendant was directed to vacate the premises and pay the arrears of the rent.
4. Heard both the parties.
5. Ld. counsel for the Appellant submits that Ld. Appellate Court has erred in law while deciding the validity and invalidity of the Basgit Parcha in absence of the necessary party, i.e., District Collector and Circle Officer of the concerned district and he has also given perverse finding regarding the landlord-tenant relationship between the parties without having any cogent evidence on record.
6. However, Ld. Counsel for the Respondent who has appeared in this case on notice of interim application submits Patna High Court SA No.5 of 2018(17) dt.22-09-2023 3/5 that there is no illegality or infirmity in the impugned judgment and no substantial question of law arises in the present second appeal for consideration of this Court and hence, this Second Appeal is not maintainable. To substantiate his argument, he submits that the Appellant has impliedly admitted the relationship of landlord-tenant between the parties. During the trial of the case, he has taken defence that he has got Basgit Parcha issued in his favour by the Circle Officer, which means that he was tenant over the suit property prior to issuance of Basgit Parcha because tenancy is a sine quo non for issuance of Basgit Parcha. He also submits that even finding of the Appellate Court regarding validity of Basgit Parcha is not without any basis. In fact all the documents related with issuance of Basgit Parcha was on record. Hence, on the basis of the documents, the Ld. First Appellate Court has come to the conclusion that this Basgit Parcha was invalid, forged and fabricated.
7. In view of the aforesaid facts and circumstances of the case, following substantial questions of law arise for consideration of this Court:
(i) Whether the Appellate Court has committed error to give finding regarding validity of Basgit Parcha without Patna High Court SA No.5 of 2018(17) dt.22-09-2023 4/5 impleading the District Collector and the Circle Officer of the concerned District as parties in the suit?
(ii) Whether the finding of the Appellate Court is perverse in regard to relationship of landlord-tenant between the parties.
(iii) Any other questions which may arise for consideration at the time of hearing.
8. Hence the Second Appeal is admitted for hearing.
9. There is no need to issue notice to the Respondent because he is already present.
10. Lower Court Records of Eviction Appeal No. 26 of 2009 / 04 of 2017 and Eviction Suit No. 2 of 2002 be called for from the Ld. District and Sessions Judge, Sitamarhi by special messenger subject to the payment of the cost of Special Messenger by the Respondent no.1 herein.
11. Interim order dated 21.01.2019 shall continue till next date of hearing.
12. Re-list this matter on 06.10.2022 for final hearing.
Skm/chandan/- (Jitendra Kumar, J) U
Patna High Court SA No.5 of 2018(17) dt.22-09-2023 5/5