Mrityunjay Kumar Pandey And ... vs Smt. Phulsahiban And Others
2023 Latest Caselaw 3925 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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S.A. No.272 of 2009

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      Mrityunjay Kumar Pandey and Others                     .... Appellants
                                   --     Versus      --
      Smt. Phulsahiban and Others                            .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants :- Mr. Sunil Kumar, Sr. Advocate Mr. Ayush Aditya, Advocate For the Respondents :- Mr. Suraj Singh, Advocate

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47/12.10.2023 I.A. No.8405 of 2023 has been filed wherein prayer is made

for further incorporating substantial question of law disclosed in

paragraph no.5 of the said petition. It has also been pointed out in

paragraph no.4 that now in the year 2022, I.A. No.3251 of 2022 has

been filed and in view of that the present the prayer is made out to

withdraw that I.A.

2. Mr. Singh, the learned counsel for the respondent has got

no objection.

3. In view of that, I.A. No.3251 of 2022 is dismissed as

withdrawn.

4. Mr. Sunil Kumar, the learned Sr.counsel appearing on behalf

of the appellants submits that at the time of admission of this second

appeal, the substantial question of law was formulated, however, the

substantial question of law proposed in paragraph no.5 of the said I.A. is

further essential to decide the lis.

5. This Second Appeal was admitted by order dated

02.08.2010 formulating two substantial question of law. It appears that

this matter is arising out of eviction suit and there are concurrent finding

of two learned courts and the further proposed substantial question of

law disclosed in paragraph no.5, it appears that these are directly linked

with the lis in question.

5. Mr. Singh, the learned counsel appearing on behalf of the

respondents has got no serious objection if the proposed substantial

question of law is incorporated.

6. In view of the above, the following additional substantial

questions of law to address the issue in question is being formulated.

"(i) Whether the judgment and decree of the court below is vitiated for not considering that whether the alleged power of attorney holder can depose oral evidence in respect of a plaint wherein though the plaintiff states on solemn affirmation that the statement made in the plaint are true to her personal knowledge she does not appear in the witness box to depose in support of the pleading in the plaint?"

(ii) Whether the judgment and decree of the court below is vitiated for the fact that whether the suit for eviction of the appellants, the alleged tenant, ought to have been dismissed on the ground of estoppel "per rem judicatam" in view of the fact that in the earlier proceedings before the Hon'ble High Court, plaintiff in unequivocal terms has described the appellants/ defendants as a "Rank Encroacher" / illegal occupant of the suit property, which was duly recorded also in the order passed by Hon'ble High Court?

(iii) Whether one common suit on behalf of two separate owners, one having purchased a house for which allegedly rent was being paid and the other having purchased an orchard for which only cost of fruits were being paid was maintainable under the provision of B.B.C Act?, and

(iv) Whether the owner of a plot of land which admittedly is not a building for which no rent was being paid would come under the definition as landlord as defined order BBC Act and whether the ground of personal necessity or default is available in law for eviction under the provisions of the BBC Act?

7. Mr. Singh, the learned counsel for the respondents submits

that another date may kindly be fixed in order to prepare him on the

further substantial question of law which has been formulated today. He

further submits that early date may kindly be fixed.

8. I.A. No.8405 of 2023 is disposed of.

9. I.A. No.4465 of 2016 also filed for formulation of substantial

question of law is also stands disposed of.

10. Since the date has already been fixed with consent of the

parties, I.A. No.8118 of 2023 filed for fixing specific date of hearing of

the matter is disposed of.

11. Let this matter appear on 07.12.2023 at 03.30 p.m.

( Sanjay Kumar Dwivedi, J.)

SI/,