P.K. Deb, J.
1. All these four appeals have arisen out of the common judgment passed by both the Courts below. The appellate Court has reversed the dismissal of the suits as recorded by the Munsif, Motihari and decree has been granted in favour of the plaintiff-respondent.
2. The facts in all the four appeals are similar in nature which can be briefly stated as follows. The plaintiff in all the suits is the same. Only the defendants were separate individuals. According to the plaintiff, the suit property was owned by his grand-father Lalita Prasad Choudhary who had three sons, namely, Satya Prasad Choudhary-defendant No. 3, Ganga Prasad Choudhary-defendant No. 2 from one wife while Rajendra Prasad Choudhary from another wife. Defendant No. 2 Ganga Prasad Choudhary has three sons, namely, Birendra Prasad Choudhary, Surendra Prasad Choudhary and Braj Kishore Prasad Choudhary-plaintiff. The holding in dispute, the description of which has been given in the schedules of the plaint, was said to be fallen into the share of Lalita Prasad Choudhary exclusively through a partition decree in partition Suit No. 39 of 1933 (Ext. 3). After the death of Lalita Prasad Choudhary, his two sons, that is, defendants 2 and 3 only remained in possession over the suit property and by an amicable partition in the year, 1969, between defendants 2 and 3, the suit property fell in the exclusive share of defendant No. 2, i.e., the father of the plaintiff and ultimately, another partition took place amongst the father and the brothers of the plaintiff and the suit property fell into the share of the plaintiff and according to the plaintiff, father his other brothers and his uncle have got no concern about the suit property. But to avoid any complication, his father and uncle had been made defendants in the suit.
3. It was further case of the plaintiff that the four rooms in the suit holding had been given on rent to defendants of the four suits on a rental of Rs. 10/- per month. But, they ailed to pay the rent since long and as such, they became defaulters. It was further stated that the plaintiff being an Army man, wanted to settle his family within the suit holdings and as such, both on the ground of defaulter and also of personal necessity, four eviction suits have been filed against the four appellants of these four appeals together with arrears of rent.
4. The suits were contested by all the four appellants and they almost took the same pleas in their written statements that Lalita Prasad Choudhary, grand-father of the plaintiff, was admitted to be the owner of the suit property originally. But according to the defendants, Nabi Sah and Lakhan Sah, two brothers had auction-purchased the Municipal Plot No. 2741 along with houses and Sohan standing thereon and out of that 8 dhoors of auction-purchased land, oral exchange was made in respect of 7 dhoors of land meaning thereby, over the suit land and by virtue of the said exchange, the defendants have come in possession. They have totally denied of any relationship of landlord and tenant between the plaintiff and the defendants rather they have set up their title saying that plaintiff, his father or his uncle never came in possession of the suit property. By the way, they have also challenged the partition being commenced stage by stage amongst the heirs of Lalita Prasad Choudhary in the suit as mentioned in the plaint. Although title was also challenged but the plaintiff did not feel it proper to transfer the eviction suits into the regular suits rather they continued the suits to be proceeded as eviction suits only.
5. Voluminous numbers of witnesses have been examined from both sides. From the side of the plaintiff, about nine witnesses have been examined on the point of settlement between the plaintiff and the defendants in respect of the suit rooms.
6. The original Court incidentally decided the title of the plaintiff rejecting the plea of oral exchange being taken by the defendants and the original Court further recorded a doubt about the partition being held between defendant No. 2 and 3 as at one point of time, it could be admitted by some of the defendants that they were tenants under defendant No. 3. All the four suits were ultimately dismissed. The above appeals were preferred by the plaintiff-respondent and the appellate Court had also analogously heard all the four appeals. The learned appellate Court on re-appraisal of the oral evidence adduced from the side of the plaintiff regarding the settlement of suit rooms in favour of the defendants, came to the finding that the settlement was made long before and the same was with defendant No. 3 as at some point of time, payments of rent were made to defendant No. 3. He has also believed the partition being held at stages in respect of the suit property which had ultimately fallen into the share of the plaintiff and as such, decreed all the suits on the ground of defaulters. Regarding the ground of personal necessity, the same had been rejected by the appellate Court also holding that such ground could not be proved by the plaintiff by adducing any cogent evidence. Hence, these four appeals before this Court.
7. It was contended by the earned Counsel appearing for and on behalf of the appellants, at the first instance that even if the decree for eviction passed by the appellate Court are said to be all right then also, as the learned appellate Court failed to decide the point of partial eviction, the appeals must go back to be re-heard either by the original Court or by the appellate Court. Such submission at the first point was found to be misconceived. No eviction decree had been granted on the ground of personal necessity. So, the question of personal necessity does not arise. The evictions have been recorded by the appellate Court only on the ground of default. Regarding the payment of rent, the defendants have never taken any plea that they have ever paid any rent. Although at some point of time, one of the defendants had admitted that the rent was paid to defendant No. 3. So, if the relationship of landlord and tenant was there and as at no point of time, rent has been paid for the last three years, preceding the date of filing of the suits, either to defendant No. 3 or to the plaintiff, the suits of evictions on the ground of defaulter, can be maintained and such decree cannot be questions as being bad.
8. Then, the another point has been raised that as the partition has been urged from the side of the plaintiff and could not be proved, then the eviction suits were not maintainable. Such plea of the learned Advocate for the appellants is also unsustainable in law. If there is joint property, taking it for granted for argument's sake that the partition could not be proved, then also one of the co-sharers is entitled to proceed with the eviction suit and there is no bar in it if the other co-sharers are parties and they do not oppose the eviction. Here, only plea was that defendant No. 3 was also co-sharer along with the plaintiff and defendant No. 2. But, the plaintiff being a co-sharer, which has not been denied, can maintain an eviction suit.
9. The plea of title taken by the defendants had been rejected by both the Courts below. So, there is no scope to raise this plea before the second appellate Court again. Regarding the relationship of landlord and tenant, there are reverse findings by the appellate Court and the original Court. There is no written settlement between the parties. Oral evidence has been adduced from the side of the plaintiff regarding the relationship of landlord and tenant. The original Court has disabled such oral evidence and on re-appraisal by the appellate Court, it has been found that relationship of landlord and tenant could be proved.
10. The approach in discussing the evidence from the side of the appellate Court towards the settlement, is correct, cogent and proper then in right way the reasonings of the original Court had been rejected. Moreover, this factum of settlement is based on the factual aspect alone and no law point is involved. The reasonings given by the original Court in disbelieving the oral evidence of settlement have been discarded by the appellate Court and believed the settlement. It could not be shown as to how the appellate Court's judgment suffers from illegality while believing the factum of settlement. On perusal of both the judgments, I do not find that there is any point of law involved in these four second appeals. Only because the appellate Court's judgment is a judgment of reversal, the same cannot be a ground for admission of the second appeal as no point of law is involved.
11. In the circumstances, when no substantial question of law are there, there four appeals have got no force and hence, rejected under Order XLI, Rule 11 of the Code of Civil Procedure.