CAV JUDGMENT

Heard Mr. Abbas Haider, learned counsel for the appellants and Mr. Abdul Manan Khan, learned counsel for the respondents.

2. This Second Appeal has been filed by the defendants-appellants-appellants against the judgment and decree of affirmance dated 18th August, 2008 passed by Additional District Judge, Fast Track Court No. V, Rohtas at Sasaram, in Title Appeal No. 06/02 of 2002/2008. The matter arises out of Eviction Suit No. 03 of 1997 filed by the plaintiffs-respondents for eviction of the defendants on the ground of default in payment of rent. The plaintiffs also sought relief for directing the defendants to vacate the suit premises and hand over the possession to them as well as for payment of arrears of rent. The defendants contested the claim by denying the title of plaintiffs and further denied the relationship of landlord and tenant between the parties.

3. The eviction suit was decreed by the learned 1st Munsif, Sasaram, vide judgment and decree dated 14.12.2001 passed in Eviction Suit No. 03 of 1997, which was thereafter challenged by the defendants by preferring Title Appeal No. 06/02 of 2002/2008. Upon hearing the parties and considering the materials available on record, the Additional District Judge, Fast Track Court No. V, Rohtas at Sasaram vide judgment and decree dated 18th August 2008, affirmed the judgment and decree passed by the trial court and dismissed the appeal. However, earlier, in first round of litigation, in Title Appeal No. 06/02 of 2002/2008, the learned Appellate Court had set aside the judgment and decree dated 14.12.2001, by which Eviction Suit No. 03 of 1997 was decreed and remanded the matter back to the trial court namely, learned 1st Munsif, Sasaram, for deciding the regular Title Suit on amendment of plaint including the relief. The plaintiffs- respondents had filed Miscellaneous Appeal No. 356 of 2006 in this Court which was allowed by a Bench of this Court on 03.01.2008 and the judgment of Appellate Court was set aside. The High Court also directed the Appellate Court to consider the Title Appeal afresh and further observed that the learned lower Appellate Court is required to consider the main question in issue namely, the relationship of landlord and tenant between the parties and the question of title had to be gone into merely incidentally. The plaintiffs are dominus litis and the Court has no business to force the plaintiffs to amend its pleadings or reliefs. The Court can only decide the reliefs claimed by the plaintiffs on the basis of pleadings of the parties. If the Court does not find any relationship of landlord and tenant between the parties, for which the question of title has to be gone into incidentally, the Court below can very well reject the claim of the plaintiffs. Furthermore, merely on the ground that the defendants had denied the title of the plaintiffs and had claimed their own title over the suit premises, the learned Appellate Court below cannot be held to be legally justified in directing that the eviction suit should be converted into regular Title Suit for declaration of title.

4. Upon remand, the learned Appellate Court after hearing the parties afresh affirmed the judgment and decree dated14.12.2001 passed by the learned trial court.

5. Aggrieved by the judgment and decree passed by the learned First Appellate Court, the defendants-appellants have preferred the present Second Appeal.

6. On 20.01.2009, the following substantial questions of law were formulated while admitting the appeal:-

I. Whether a decree passed against a dead person can be sustained in law?

II. Whether admission in the criminal case can be a deciding factor in civil suit?

7. In order to determine the matter in its correct perspective, it is necessary to briefly restate the case of the plaintiffs. The case of the plaintiffs is that the property originally belonged to one Tamiz Ahmad Khan and he was in possession of the s