The landlord-tenant relationship is vital for eviction suits; title issues cannot be resolved without proper framing and processes in appellate proceedings.

JUDGMENT

HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI, J.

Heard Mr. K. K. Ambastha, learned counsel for the appellants and Mr.

Ajay Kumar Sah, learned counsel for the respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with judgment and decree dated 25.03.2004 (decree signed on 08.04.2004) passed by learned 5^th Additional District Judge, Bermo at Tenughat in T.A. No. 43 of 2003 whereby the appeal was allowed and the judgment and decree dated 12.08.2003/18.08.2003 passed by the learned Munsif, Bermo at Tenughat in Title Eviction Suit No. 01/1997 was dismissed.

3. Mr. K. K. Ambastha, learned counsel for the appellants submits that Title Eviction Suit No. 01/1997 was instituted by the respondents for eviction from the house in question and after elaborating the discussions the learned trial court has come to the conclusion that there is no relationship of landlord and tenant between the parties and that is why suit of eviction was dismissed and aggrieved with the said judgment dated 12.08.2003, the same was challenged by the plaintiffs/respondents in Title Appeal No. 43 of 2003 and the learned appellate court has affirmed the finding of the trial court with regard to issue no. “X” and held that there was no relationship of landlord and tenant between the parties however the learned appellate court has decided the title in the said appeal itself by the said judgment dated 25.03.2004. Aggrieved with this second appeal has been filed on behalf of the appellants/defendants.

4. This second appeal was admitted on 03.02.2005 on following substantial question of law: “ Whether the plaintiff’s suit having been filed under the provisions of Bihar Building (Lease, Rent and Eviction) Control Act, 1982, but they failed to establish the relationship of landlord and tenant, as concurrently found and held by the Courts below, the Lower Appellate Court would have decided the contested title at the appellate stage, in summary manner even without a proper frame of the suit, without payment of advalorem court fee and as a surprise to the defendant ?

5. The plaintiff/respondent instituted a suit stating that Prayag Tiwari purchased a land in plot no. 1651 under khata no. 1/549 in village Balidih, which includes the suit premises vide registered deed of sale, from the rightful owner thereof and was put in possession thereof. The said Prayag Tiwari constructed two adjacent rooms thereon and inducted Sarjug Tiwari-the father of the defendant no. 1, as a month to month tenant according to the English Calender in the Northern most room along with a small piece of vacant land adjoining the room, towards the end of 1963, at a monthly rent of Rs. 75/- with the condition that the tenant will neither make any addition alteration to the tenanted premises, without the consent of the landlord nor he shall sublet the tenanted premises or any part of it. After being inducted as a tenant , Sardu Tiwari was paying rent to Prayag Tiwari and Prayag was granting “Hat Chitta” to him. After few months, Prayag Tiwari died and as the plaintiff no. 1 was minor, Prayag Tiwari’s brother Joty Tiwari, used to collect the rent from Sardu Tiwari by granting “Hat Chitta” till 1981-82 when the plaintiff no. 1 become major. Further the case of the plaintiff is that Sardu Tiwari converted the said tenanted premises into four small rooms but continued to pay rent to Jyoti and also to the plaintiff no. 1, after he attained majority, against grant of “Hat Chitta” by the plaintiff no.1. In November, 1987, Sardu Tiwari sub-let the suit premises to Hari Pandit-the father of the defendant no. 2 without the knowledge and the cons