The tenant is estopped from challenging the title of the landlord, and the court can consider the question of title incidentally to establish the relationship of landlord and tenant.

Amitav K. Gupta, J.

1. This second appeal has been preferred against the judgment and decree dated 21.01.2012 and 31.01.2012 respectively whereby the learned District Judge-III, Singhbhum East at Jamshedpur, in Eviction Appeal no.5 of 2009 affirmed the judgment dated 25.07.2008 passed by the learned Subordinate Judge-VI of Singhbhum East, Jamshedpur in Eviction Suit no.47 of 1997 decreeing the suit in favour of the plaintiff/respondent.

2. The second appeal was admitted for hearing on formulation of the following substantial question of law:-

“Whether the learned courts below have committed serious error in framing the issue and deciding the question of title over the suit property in a suit for eviction?”

3. The plaintiff, i.e. the respondent in this appeal, had instituted the suit for eviction of the defendant/tenant, the appellant herein, on the ground of default in payment of rent from February, 1994 to March, 1997. The plaintiff's case is that he is the owner of the suit premises comprising of a single storied building situated on holding no.517-A, Kasidih at Jamshedpur. The suit property was allotted to Abdul Rauf, the plaintiff's father who died in the year 1971 and the other legal heirs of Abdul Rauf, by a registered deed, relinquished their rights in the suit property in favour of the plaintiff. The defendant was inducted as a tenant with respect to one shop room in the said building by the plaintiff's father on monthly rent as per English calendar. The rent was to be paid at the end of the month and the plaintiff used to grant rent receipts against the monthly rent paid by the defendant, but, after February 1994 in violation of the terms of the tenancy, the defendant stopped paying rent and defaulted in payment of rent from February, 1994 to March 1997. On the above grounds the suit was filed for eviction of the defendant/appellant as he defaulted in payment of the rent for two months. The plaintiff also claimed arrears of rent from April, 1994 till the date of the filing of the suit.

4. The defendant contested the suit and in his written statement he asserted that the suit property was a Wakf property, thus the plaintiff did not have any title over the suit property nor was he the owner of the suit property. The defendant's case is that a vacant piece of land was given on rent initially by the Mutwali of Safdar Ali Wakf Estate, on a monthly rent of Rs.100/- which was subsequently enhanced to Rs.500/- per month in 1993. That the defendant had constructed a room at his own cost over the vacant land. The defendant stated that the plaintiff used to realise the rent from the defendant through the agent who used to grant him kachcha receipts on the assurance that pacca receipts would be made available later. The defendant used to pay the rent as and when demanded and denied that he had defaulted in payment of rent and in fact he has been paying the rent regularly to the plaintiff's agent from February, 1994 to March, 1997 and they granted the rent receipts, hence he is not liable to pay the arrears of rent from April, 1994 to March,1997.

5. On the pleadings of the parties, the trial court framed 5 issues which are as follows:-

“I. Is the suit framed maintainable and has the plaintiff a valid cause of action ?

II. Is there a relationship of landlord and tenant between the plaintiff and defendant ?

III. Whether the defendant is a defaulter in payment of rent and liable to be evicted from the suit premises and also liable for payment of arrears of rent ?

IV. Whether the suit land is a Wakf property and the suit is hit by the provision of Section 32 of the Bihar Buildings (Lease, Rent and Eviction) Control Act ?

V. To what other relief/reliefs plaintiff is entitled To?”

6. During the trial the plaintiff/respondent filed an application under Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter to be referred as the Act.) for directing the defendant to deposit the arrears of rent and to pay the cu