Patna High Court
Sohail Khan Alias Sohail Akhtar vs Junaid Eqbal Khan on 11 March, 2026
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.315 of 2008
======================================================
1. Sohail Khan alias Sohail Akhtar, Son of late Jalil Akhtar, Resident of
Mohalla Bag Bhai Khan, Ward No. 7, Town and P.S. Sasaram, District
Rohtas.
2. Shahnawaz Khan, Son of late Jalil Akhtar, Resident of Mohalla Bag Bhai
Khan, Ward No. 7, Town and P.S. Sasaram, District Rohtas.
3. Shamsher Alam alias Shamsher, Son of late Jalil Akhtar, Resident of
Mohalla Bag Bhai Khan, Ward No. 7, Town and P.S. Sasaram, District
Rohtas.
4. Jamshed Alam, Son of late Jalil Akhtar, Resident of Mohalla Bag Bhai
Khan, Ward No. 7, Town and P.S. Sasaram, District Rohtas.
5. Sarwar Alam, Son of Late Jalil Akhtar, Resident of Mohalla Bag Bhai Khan,
Ward No. 7, Town and P.S. Sasaram, District Rohtas.
6. Akhtar Alam alias Md. Aksar, Son of Late Jalil Akhtar, Resident of Mohalla
Bag Bhai Khan, Ward No. 7, Town and P.S. Sasaram, District Rohtas.
7. Kausari Begum, D/o late Jalil Akhtar, Resident of Mohalla Bag Bhai Khan,
Ward No. 7, Town and P.S. Sasaram, District Rohtas.
8. Khurshida Khatoon, D/o late Jalil Akhtar, Resident of Mohalla Bag Bhai
Khan, Ward No. 7, Town and P.S. Sasaram, District Rohtas.
... ... Appellant/s
Versus
1. Junaid Eqbal Khan, Son of Late Mohammad Ayub Khan, Resident of Village
Baradih, P.O. Muradabad, P.S. Agar, District Rohtas, At present Mohalla
Bag Bhai Khan, Town and P.S. Sasaram, District- Rohtas.
2. Mansoor Alam Khan, Son of Late Mohammad Ayub Khan, Resident of
Village Baradih, P.O. Muradabad, P.S. Agar, District Rohtas, At present
Mohalla Bag Bhai Khan, Town and P.S. Sasaram, District- Rohtas.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Abbas Haider, Advocate
Mr. Wasi Mohammad, Advocate
For the Respondent/s : Mr. Abdul Manan Khan, Advocate
Mr. Binay Kumar, Advocate
Mr. Hafiz Shahbaz, Advocate
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Mr. Allama Abdul Quadir Jamal, Advocate
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 11-03-2026
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
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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
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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 dated
14.12.2001 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
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plaintiffs. The case of the plaintiffs is that the property originally
belonged to one Tamiz Ahmad Khan and he was in possession of
the suit property. The municipal khatiyan was recorded in his
name. The said Tamiz Ahmad Khan sold his property i.e. house
standing over Municipal Plot Nos. 1776 and 1775, along with his
Zamindari of Village- Misripur for a consideration of Rs. 800/-
through a registered sale deed dated 22.08.1947 (Ext. 5) in favour
of Ghasiti Bibi and Ayub Khan (mother and son) and delivered its
possession to the purchasers. It is further pleaded in the plaint that
Ayub Khan, had remained outside from his parental village due to
his service in Simon Carves India Limited company since 1957.
The management of the Zamindari and cultivation were looked
after by Ghasiti Bibi and for this purpose Ghasiti Bibi resided at
Village- Baradih. Since the house and property of Mohalla Bagh
Bhai @ Nooranganj being the suit property was looked after by
late Amna Bibi, the mother of Ghasiti Bibi and maternal
grandmother of late Ayub Khan (father of the plaintiffs), and as
such, the municipal assessment at Sasaram with respect to Plot
Nos. 1776 and 1775 got prepared in the name of late Amna Bibi. It
is further case of the plaintiffs that father of the plaintiffs namely,
Ayub Khan constructed pucca house consisting of 3 rooms in Plot
No. 1776 from his own income. Thereafter, on 14.06.1990, he died
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leaving behind his mother Ghasiti Bibi and the plaintiffs-
respondents as his heirs. Ghasiti Bibi is the grandmother of the
plaintiffs. The grandmother of the plaintiffs gifted her right, title
and interest of Plot Nos. 1776 and 1775 in favour of the plaintiffs-
respondents through registered Gift Deed dated 11.07.1990 (Ext.
3) and the plaintiffs accepted the said gift. The plaintiffs became
the absolute owners of the suit house and their names were
substituted over the same vide Mutation Case No. 637 of 1990-91
pursuant to order dated 27.12.1990/15.06.1991 (Ext. 8). They also
obtained rent receipts on payment of rent and their names were
also entered into municipality and they got municipal tax receipts
(Ext. 6 series). It is further pleaded that the plaintiffs reside away
in connection with service and as such, house standing over Plot
Nos. 1776 remained in vacant possession. In the month of
November, 1990, the original defendant approached the plaintiffs
and requested to let out the house standing over Plot No. 1776 on
the monthly rent of Rs. 300/- per month on the terms and
conditions mentioned hereunder:-
a. The tenancy shall start from the month of December,
1990.
b. The monthly rent will be Rs. 300/- per month payable
within ten days of every next month.
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by the tenants at their expenses which will not be adjusted from
the rent money and the repairing of the house shall be done by the
landlord at his own expenses.
d. Tenant shall not make any alteration or pucca
Construction without prior approval of the landlord and if the
tenant violates the condition he will be liable for eviction.
e. The tenant will not sub-let and they will not default in
payment of rent, if they are found to be defaulter they will be
liable for eviction.
f. On the personal necessity of the landlord and also for
his relatives, the tenant will vacate the tenanted house and give
vacant possession to the landlord.
g. If the landlord seems fit and intends to extend the
tenancy, he may renew the Kirayanama.
h. The first tenancy was to be accepted from December,
1990 to October, 1991 by the first party (defendants-appellants)
Jalil Akhtar Khan.
8. Both the parties signed over it before the witnesses
and the said Agreement-cum-Kirayanama was notarized by the
Notary, Sri Jwala Prasad, Advocate on 30.11.1990. On the basis of
said Agreement-cum-Kirayanama, the defendants came in
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possession over the house as tenant and relationship between the
plaintiffs-respondents and the defendants-appellants started as
landlord and tenant with respect to the suit house. The aforesaid
tenancy was extended twice and a fresh Kirayanama was executed
which was signed by the defendants. They are residing as tenants.
The original defendant paid rent upto October, 1996 to the
plaintiffs and thereafter the defendants stopped payment of rent
from November, 1996. The plaintiffs demanded the rent and it was
promised by the tenant to clear off the due rent by February, 1997.
However, the defendants-appellants did not pay the due rent as
promised and forcibly tried to obtain the receipts from the
plaintiffs-respondents due to which the quarrel occurred. The
defendants along with his associates assaulted the plaintiffs for
which Sasaram P.S. Case No. 96 of 1997 under Sections 323, 341,
379, 504 of the Indian Penal Code was lodged by plaintiffs. The
plaintiffs-respondents asked defendants to make payment of
arrears of rent and give vacant possession of the suit house but
they did not pay any heed. Hence, the present suit was filed.
9. On summons, original defendant appeared and filed
his written statement, besides, the ornamental objection, the
defendant challenged the title of plaintiffs and pleaded that there
was no relationship of landlord and tenant between the plaintiffs
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and the defendants. It is further pleaded that the property in suit
originally belongs to Tamiz Ahmad Khan, who was issueless. It is
vehemently pleaded that Tamiz Ahmad Khan orally gifted the suit
property/house to his wife Asiya Khatoon in lieu of dower debt on
01.01.1946. The house of entire M.S. Plot No. 1776 and part
portion of Plot No. 1775 was gifted by Tamiz Ahmad Khan to
Asiya Khatoon in lieu of her dower debt in presence of her mother,
Amna Khatoon, who accepted the same and came in possession
thereof. The said Tamiz Ahmad Khan died in the year 1947 and
Asiya Khatoon had also died in 1949 leaving behind her heirs, the
brother Abdul Wahid Khan and Jalil Akhtar Khan. The original
defendant, son of late Habib Khan, inherited the suit house and
came in actual and physical possession over the same as the
brother. The alleged sale deed dated 22.08.1947 in favour of
Ghasiti Bibi and Md. Ayub Khan is illegal, invalid and might have
been created by playing fraud. Ghasiti Bibi was not entitled to
make any gift in favour of plaintiffs and Gift Deed dated
11.07.1990 is also illegal, invalid, forged and fabricated. It is
further case of the original defendant that he and his brother Abdul
Wahid Khan has also purchased 5 aanas 4 paise share of Ghasiti
Bibi in Plot No. 1775 and partitioned the land and mutated his
name separately in Plot No. 1775 and paid the holding tax and the
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holding tax of Plot No. 1776 still exists in the name of Amna Bibi.
Assessment of the holding is also in the name of Amna Bibi. The
purchased Plot No. 1775 is parti land and the name of the
purchaser is mutated. The defendant has also pleaded that he has
been coming in peaceful possession since more than 12 years to
the knowledge of all including the plaintiffs and in this way the
defendants got the title by adverse possession and by way of
ouster.
10. The story of tenancy and terms and conditions
mentioned in Agreement-cum-Kirayanama is wrong and baseless
and also denied the relationship of landlord and tenant and rent at
the rate of Rs. 300/- per month. It is vehemently denied that the
defendant has ever signed any Kirayanama on 30.11.1990 or on
any other date. The said Kirayanama was never authenticated by
Notary, Jwala Prasad. In fact, the defendant has been coming in
possession since long over the plot no. 1776. It is pleaded that the
suit is actually for declaration of the title and recovery of
possession but the plaintiffs have wrongly filed the suit under the
provisions of Bihar Building (Lease, Rent and Eviction) Control
Act, 1982, so, the plaintiffs are not entitled to get any relief,
therefore, prays for dismissal of the suit.
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11. On the basis of the pleadings of the parties before the
trial court, following issues were framed in the eviction suit by the
learned trial court:-
I. Whether the suit as framed is legally maintainable?
II. Whether the plaintiffs have got valid cause of action
and right to sue?
III. Whether the suit is barred by law of limitation?
IV. Whether the suit is bad for misjoinder and non-
joinder of necessary parties?
V. Whether there is relationship of landlord and tenant
between the plaintiffs and defendants?
VI. Whether the plaintiffs are entitled for decree of
eviction?
VII. Whether the plaintiffs are also entitled to a decree
of arrears of rent and future rent till eviction?
VIII. Whether the plaintiffs are entitled to any relief or
reliefs?
12. The learned trial court on the basis of evidence
adduced by the parties and the materials on record has held that
admittedly Tamiz Ahmad Khan transferred his right, title, interest
and possession over Plot Nos. 1775 and 1776 in favour of Ghasiti
Bibi and Ayub Khan vide registered sale deed dated 22.08.1947
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(Ext. 5). The said Ayub Khan died before the death of Ghasiti Bibi,
who was the mother of late Ayub Khan. The said Ghasiti Bibi
executed a registered Deed of Gift dated 11.07.1990 (Ext. 3) in
respect of plot no. 1775 and 1776 in favour of plaintiffs, who are
grandsons of Ghasiti Bibi which was accepted by them and they
came in possession over the suit property, their names were
mutated and they paid tax and got municipal receipts (Ext. 6
series). The plaintiffs became the owner of the property which was
never challenged by the defendants in any Court of competent
jurisdiction. It is also apparent from mutation order (Ext. 8) that
the names of the plaintiffs were mutated vide Mutation Case No.
637 of 1990-91. The plaintiffs have brought on record Ext. 2
Series which is indicative of the fact that the parties entered into
the agreement for creation of tenancy, in question, and accordingly
with certain terms and conditions, a Kirayanama was executed, the
plaintiffs proved the Kirayanama (Ext. 3). The defendants have
also accepted the plaintiffs as landlord of the defendant in bail
petition filed in Sasaram P.S. Case No. 96 of 1997 and Complaint
Case No. 148 C of 1997 filed by the defendant. The learned trial
court has held that the plaintiffs are the owners of the suit
premises. They inducted the defendant as their tenant for the
monthly rent of Rs. 300/-. The Kirayanama has been fully proved
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and the tenancy is admitted by the defendants. The plaintiffs have
been able to prove their case. They are entitled to get a decree of
eviction of the tenant from the suit premises.
13. Aggrieved by the judgment and decree dated 14th
December, 2001 passed in Eviction Suit No. 03 of 1997, the
defendants-appellants preferred Title Appeal No. 06 of 2002. After
hearing both the parties, the learned Appellate Court set aside
judgment of trial court and remanded the matter with a direction to
convert the eviction suit into Title Suit. Ultimately, the said
judgment and decree dated 01.07.2006 passed in Title Appeal No.
06 of 2002 was set aside in Miscellaneous Appeal No. 356 of 2006
by a Co-ordinate Bench of this Court and the matter was remanded
to the 1st Appellate Court to decide the issues afresh.
14. On remand, after hearing the parties, the learned
Appellate Court considered all the issues separately and
elaborately framed by the trial court and also took into
consideration the issue no. V framed by the trial court as to
whether there is a relationship of landlord and tenant between the
plaintiffs and defendants?, and issue no. II. Whether the plaintiffs
are entitled for arrears of rent and future rent till eviction?
15. Learned Appellate Court observed that the
documents Ext. 1 & 2 series prove the signature of appellants as
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tenants who executed the Kirayanama deed and signature of the
defendant-appellant has been proved by P.W. 3, Basant Kumar
Singh, Advocate. P.W. 9 has proved the signature of Jalil Akhtar
Khan (original defendant-appellant) (Ext. 1/A) in Urdu script on
Kirayanama (Ext. 2). P.W. 6, Muzaffar Jamal has also proved
Agreement-cum-Kirayanama (Ext. 2/A) from 30.10.1991 to
30.09.1992. P.W. 7, Md. Anis has proved Agreement-cum-
Kirayanama (Ext. 2/B) for the period extending from 30.09.1992
to 30.08.1993.
16. From the aforesaid documentary evidences, the
plaintiffs have proved their case that the defendants are the tenant
of the suit premises. Apart from aforesaid findings, the learned
trial court also mentioned that the original defendant-appellant in
criminal cases either filed by him or filed against him had admitted
regarding tenancy of the plaintiffs which have also been admitted
into evidence as exhibits as well as considered in the oral and
documentary evidence adduced by the parties and thus, held that
the original defendant is the tenant and plaintiffs are the landlords
of the suit premises. Once a person has admitted his tenancy, he
will be stopped from claiming ownership.
17. The Appellate Court also discussed the documents
filed by the defendants-appellants before the trial court such as
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Municipal rent receipts (Ext. A to A/7) issued in the name of Amna
Bibi, the electric receipts for security deposit in the name of Abdul
Wahid Khan (Ext. D) and other documents. The original
defendant, late Jalil Akhtar Khan claimed the suit premises in his
written statement as absolute owner and specifically pleaded that
Tamiz Ahmad Khan originally gifted the suit property and house
standing over it along with Plot No. 1775 in lieu of dower debt of
Rs. 40,000/- and 4 Asharfies to his wife, Asiya Khatoon on
01.01.1946, who was sister of the original defendant, late Jalil
Akhtar Khan and his brother, late Abdul Wahid Khan. Tamiz
Ahmad Khan died after a year i.e. in the year 1947 and thereafter,
Asiya Khatoon also died in the year 1949 leaving behind her heirs,
the brother, Abdul Wahid Khan and Jalil Akhtar Khan (original
defendant) who inherited the suit house along with Plot Nos. 1775
and 1776 and became absolute owner. Ext. A to A/7 i.e. the rent
receipts issued in the name of Amna Bibi do not show the title and
possession of Jalil Akhtar Khan. The name of Jalil Akhtar Khan
(original defendant) has not been mutated in municipal register
and defendant has not been able to produce any such documents of
the disputed property. Ext. C cannot be connected with the
disputed holdings. The appellants or his predecessor have not
proved their title and possession over the disputed land as absolute
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owner. So far story of oral gift is concerned, Tamiz Ahmad Khan
gifted the property in favour of Asiya Khatoon (his wife) in lieu of
dower debt which could not be accepted as the gift in lieu of
dower debt under Mohammedan law which is called as Hibba-bil-
Aiwaz and it should be registered (if value is more than Rs. 100/-)
gift deed in lieu of dower debt. The oral gift of the disputed
property could not be made in favour of Asiya Khatoon on
01.01.1946 thus, no property of the suit premises could ever pass
to the original defendant, Jalil Akhtar Khan and his brother, Abdul
Wahid Khan. The original defendant has made a futile attempt to
grab the suit property on the basis of alleged oral Hibba-bil-Aiwaz
dated 01.01.1946 by Tamiz Ahmad Khan as also to defeat
registered sale deed dated 22.08.1947 (Ext. 5) executed by Tamiz
Ahmad Khan in favour of late Ghasiti Bibi and her son, Ayub
Khan. The landlords-plaintiffs have proved that they are the owner
of the suit property whereas the tenant-original defendant
miserably failed to disprove the case of the plaintiffs-landlords by
reliable evidences and the relationship of landlord and tenant is
proved. The plaintiffs have proved their prima facie ownership
over the suit land. The defendant has not disproved it therefore,
there is relationship of landlord and tenant between the plaintiffs
and defendants.
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18. The learned Appellate Court further held that since
the defendants-appellants had raised the plea of their own title and
possession over the suit property denying the title and possession
of the plaintiffs and stopped payment of rent from November,
1996, a valid cause of action arose in favour of this plaintiffs and
lastly it has been observed that the judgment and decree of the trial
court is based on valid reasons and does not require interference
by the Appellate Court. Accordingly, the judgment and decree of
the trial court was affirmed.
19. Mr. Abbas Haider, learned counsel for the appellants
submitted that the present suit was filed for eviction of defendants
on the ground of default in payment of rent and for payment of
arrears of rent. The eviction suit has been filed invoking the
provisions of Bihar Buildings (Lease, Rent and Eviction) Control
Act. It is further submitted that the established legal position
governing the eviction suit which is brought within the scope of
the BBC Act is that, there has to be an established landlord-tenant
relationship between the plaintiffs and defendants of the case. It is
further submitted that the oral gift deed of 01.01.1946 by Tamiz
Ahmad Khan to his wife in presence of his mother, Amna Khatoon
has not been considered in correct perspective. The wife of Tamiz
Ahmad Khan died issueless leaving behind his two brothers
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namely, Jalil Akhtar Khan (original defendant) and Abdul Waheed
Khan. It is further submitted that during pendency of the Title
Appeal, the original defendant-appellant, Jalil Akhtar Khan died
on 07.03.2004 and an application for substituting the names of his
heirs was filed on 01.05.2004 wherein, Abdul Wahid Khan was
arrayed as appellant no. 9. The said Abdul Wahid Khan died on
11.05.2008 during the pendency of title appeal and an application
for substitution of the names of his heirs was filed but the
judgment was passed against a dead person. The judgment against
a dead person is nullity in the eyes of law because the legal heirs
of the deceased party did not get an opportunity to represent their
case.
20. Learned counsel for the appellants further submitted
that both the learned Courts below have heavily relied upon Ext.
12 and 12/A i.e. bail petition in Sasaram P.S. Case No. 96 of 1997
and have come to the conclusion that tenancy is admitted between
the parties. The admission in a criminal case has got no bearing in
civil dispute which has to stand on its own evidences and cannot
take aid of the evidences adduced in criminal trial. The statement
contained in bail application have been relied upon by both the
courts and they came to the findings that relationship of landlord
and tenant is admitted. In this connection, reliance has been placed
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in the case of Seth Ramdayal Jat Vs. Laxmi Prasad reported in
AIR 2009 SC 2463 wherein, Hon’ble Supreme Court has held that
admission in a criminal case cannot be relied upon and become an
adjudicatory factor in deciding a civil case. It is further submitted
that the entire deposition of defendant, D.W. 9, shows that no
question was put before him in the cross-examination regarding
his purported admission in the bail petition on the issue of
existence of relationship of landlord and tenant. The defendant has
not admitted relationship of landlord and tenant. Both the courts
did not consider the documents and evidences adduced by the
defendants. Both the courts below have completely overlooked the
contents in paragraph 5 of Ext. 12/A, wherein, it has been stated
that the appellants are tenants in the room of informant from
before in which they are co-sharers. It is further submitted that
non-consideration of material evidences of the parties amounts to
perversity in the judgment.
21. Per contra, learned counsel for the plaintiffs-
respondents submitted that there is a concurrent findings of
learned courts below on proper consideration of evidences on
record that there is a relationship of landlord and tenant between
the parties, the defendant is defaulter and is liable to be evicted
from the suit premises. It is further submitted that the substantial
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questions of law are not applicable to the present case. So far 1st
substantial question of law is concerned, the original defendant-
appellant had died on 07.03.2004 during pendency of Title Appeal
and his heirs were substituted in Title Appeal No. 08 of 2002 vide
order dated 22.11.2004. However, besides the heirs of original
defendant i.e. sons and daughters of deceased original defendant-
appellant, the name of Abdul Wahid Khan was also substituted as
heir of deceased Jalil Akhtar Khan (original defendant). The
plaintiffs/respondents objected to the substitution of Abdul Wahid
Khan, who was neither the legal heir of the deceased original
appellant nor a necessary party in the appeal. The learned lower
Appellate Court on the objection of the plaintiffs-respondents
passed following orders:- “Considering the submissions and
objection, the petition of the appellant dated 01.05.2004
(substitution petition) is allowed and it will be open for the
respondent to place his objection as legal right of the appellant
(deceased) brother.”
22. It is also submitted that during the pendency of title
appeal, the said Abdul Wahid Khan died, his legal heirs were not
substituted in the appeal as he was not a proper and necessary
party. Therefore, due to non-substitution of the heirs of Abdul
Wahid Khan, the appeal will not stand abated. The said Abdul
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Wahid Khan was neither a proper nor necessary party. Hence, his
heirs are also not a necessary party. It is submitted that the Hon’ble
Supreme Court repeatedly held that non-substitution of a
formal/proforma party in case will not cause abatement rather it
will be proceeded against the remaining party.
23. So far substantial question no. 2 is concerned, the
admission of a party in a criminal case may be an important piece
of evidence in a civil suit, if the facts in issue are same in both the
cases. The Hon’ble Supreme Court has considered this question in
a large number of cases and categorically held that admission of
guilt in a criminal case would be admissible in evidences in a civil
suit being relevant in the fact in issue. Therefore, any statement
made in a criminal case could be proof of the relationship of
landlord and tenant. It is further submitted that in a large number
of cases decided by the different High Courts or Hon’ble Supreme
Court, it has been held that although the judgment of a criminal
case is not binding upon the Civil Court but the admission of the
party in a criminal case which is also fact in issue in civil suit is
relevant and a good piece of evidence, if the fact in issue is same
in civil suit as well as criminal case. Moreover, the learned courts
below have not at all relied upon the judgment of any criminal
court but they have considered the admission of the defendant in
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criminal case. Apart from that, they have also considered number
of unimpeachable evidences on record, the sale deed, gift deed and
Kirayanama which all are exhibited during evidences. Both the
substantial question of law, under the facts and circumstances, are
not applicable in the present case.
24. Having regard to the submissions made on behalf of
the parties and materials available on record as well as impugned
judgments, it is quite apparent that the premises, in question, was
acquired through registered Gift Deed dated 11.07.1990 (Ext.3) by
the plaintiffs. The plaintiffs became the absolute owners of the
premises, in suit, and their names were mutated over the same
pursuant to order dated 27.12.1990/15.06.1991(Ext. 8). The
original defendant has denied the title of the plaintiffs. It is also an
admitted case of the defendants that they are residing in the suit
premises. Moreover, the Gift Deed executed in favour of the
plaintiffs has neither been challenged nor cancelled by any Civil
Court. This Court in the case of Maharana Pratap Singh Vs.
Ambika Prasad Singh, reported in 2023 (2) PLJR 321 as well as
in the case of Shamim Ara Naz & Anr. Vs. Mohammad
Quamruddin, reported in 1997 (1) PLJR 526 has held as follows
“When the learned court below has come to a prima facie finding
that the plaintiff established his ownership over the suit premises
Patna High Court SA No.315 of 2008 dt.11-03-2026
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then the application ought not to have been rejected on the ground
that there was no evidence of payment of rent by the defendant to
the plaintiff or their vendor”. The defendants-appellants have
asserted that they are residing in the premises as absolute owner
but they have failed to substantiate their claim.
25. In the present case, although the original defendant
denied the title of the plaintiffs and claimed his title as absolute
owner being the brother of wife of Tamiz Ahmad Khan, but the
said Tamiz Ahmad Khan executed a sale deed in favour of Ghasiti
Bibi and Ayub Khan (father of the plaintiffs) on 22.08.1947.
Ghasiti Bibi, who is the grandmother of the plaintiffs, gifted her
right, title and interest of the suit property in favour of plaintiffs-
respondents through registered Gift deed dated 11.07.1990 (Ext.3).
The plaintiffs became the absolute owners of the house in suit. The
substantial question of law having been framed by this Court in
this appeal with regard to decree passed against a dead person
cannot be sustainable in law. It is admitted fact that appellant no. 9
in Title Appeal No. 06 of 2002/ 02 of 2008 was substituted, who is
the brother of deceased original defendant. It is admitted fact that
the original defendant-appellant died leaving behind his sons and
daughters, who were appellant nos. 1 to 8 before the trial court.
The brother of original defendant cannot have interest in the suit
Patna High Court SA No.315 of 2008 dt.11-03-2026
24/26
premises in presence of appellant nos. 1 to 8. Moreover, in
eviction suit, title of the parties could not be decided and it can
only be gone into incidentally. The eviction suit was filed against
original defendant and after his death the judgment passed in
eviction suit is binding upon the heirs of the original defendant,
who were appellant nos. 1 to 8 in Title Appeal before the First
Appellate Court. The substitution petition of deceased brother of
the original defendant-appellant in title appeal was allowed with a
liberty to raise objection with regard to legal right of the brother of
original defendant. The original eviction suit was not filed against
Abdul Wahid Khan (appellant no . 9 in Title Appeal) and no relief
was claimed against said appellant no. 9. The appellants before the
first appellate court made him party- appellant for claiming his
right, title and interest. Hence, Abdul Wahid Khan was neither heir
of original defendant nor a proper or necessary party in the appeal.
All the heirs (sons and daughters) have filed the present appeal and
represented the interest of original defendant. Therefore, the
impugned judgment is not passed against a dead person neither the
judgment is nullity in the eye of law. Therefore, the substantial
first question of law is answered against the appellants.
26. So far second substantial question of law is
concerned, both the courts below firstly decided the plaintiffs
Patna High Court SA No.315 of 2008 dt.11-03-2026
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being owner of the premises, in question, and on the basis of
evidence adduced by the parties i.e. Kirayanama executed by the
parties (Ext.3) and signature on the said Kirayanama has been
proved by the plaintiffs and prima facie title is in favour of the
plaintiffs having acquired the title on the basis of registered Gift
deed dated 11.07.1990 (Ext. 3) and there is a specific case of the
plaintiffs that since November, 1990, the defendant has not paid
rent. Since the defendant denied the claim of title of the plaintiffs,
and therefore he was not paying rent to the plaintiffs. Both the
courts below also discussed the admission of the defendant in
criminal proceeding apart from the above oral and documentary
evidences. Therefore, the second question of law is also decided
against the appellants.
27. In view of the above discussions and findings, the
judgment and decree of the learned court below is affirmed and in
the aforesaid facts and circumstances of the case, the substantial
questions of law formulated in this appeal are answered against the
appellants.
28. Thus, this Second Appeal has got no merit and
accordingly, it is dismissed.
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26/26
29. The stay of proceeding of Execution Case No. 05 of
2005 granted by this Court vide order dated 27.11.2008 is hereby
vacated.
30. Pending interlocutory application(s), if any, shall
stand disposed of.
(Khatim Reza, J)
Sankalp/-
AFR/NAFR AFR CAV DATE 30.10.2025 Uploading Date 17.03.2026 Transmission Date N/A