Sohail Khan Alias Sohail Akhtar vs Junaid Eqbal Khan on 11 March, 2026

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    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
           ======================================================
           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

    SPONSORED

    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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    c. Electric Charges and the white washing shall be done

    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
    Patna High Court SA No.315 of 2008 dt.11-03-2026
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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
    Patna High Court SA No.315 of 2008 dt.11-03-2026
    22/26

    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
    23/26

    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.

    Patna High Court SA No.315 of 2008 dt.11-03-2026
    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
     



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