SECOND APPEAL 55 of 2016 on 27 November 2007

1.

2. 16-10-2025

IN THE HIGH COURT OF JUDICATURE AT PATNASECOND APPEAL No.55 of 2016

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Shashi Bhushan Singh S/o Late Madho Singh, R/o Village Anuan, P.S.- Karpi, District- Jehanabad, now Arwal. at present Mohalla Raja Bazar, SalempurDumra, P.S.- Shashtri Nagar, P.O.- B.V. College, District- Patna Pin Code-800014.

... ... Defendant no.1- Appellant- AppellantVersus Ramjanam Prasad Singh S/o Late Madho Singh, Resident of Village-Anuan, P.S.- Karpi, District- Jehanabad, Now Arwal, at present Holding No.583/A Chaudhary Hotel Road Mohalla Raja Bazar, P.S. Shastri Nagar, P.O.-B.V. College, District- Patna, Pin code- 800024.

Sunil Kumar S/o Late Ramesh Chandra Singh R/o Village Mangurahi, P.S.-Baroon, District- Aurangabad at present Superintendent Custom CentralGovernment of India Goshala Road Sanhaui, P.S. Sanhauli, P.O.- KhagariaDistrict- Khagaria, Pin code- 851204.

... ... Defendant no.2- respondent no.2-respondent no.2

======================================================Appearance :For the Appellant/s: Mr.Bal Bhushan Choudhary, Advocate For the Respondent/s: Mr.Rajendra Prasad Singh, Advocate======================================================

CORAM: HONOURABLE MR. JUSTICE KHATIM REZACAV ORDER

Heard Mr. Bal Bhushan Choudhary, learned counsel for the appellant and Mr. Rajendra Prasad Singh, learned counselfor the respondent No.1.

2. This Second Appeal has been preferred by thedefendant-appellant against the judgment of affirmance dated07.11.2015 passed in Title Appeal No. 282 of 2007 by the learned 6[th] Additional District Judge, Patna City, Patna, wherebythe judgment and decree dated 27.11.2007 passed in Title SuitNo. 63 of 1998 by the learned Execution Munsif, Patna, hasbeen upheld by which the leaned Trial Court decreed the suit infavour of plaintiff/respondent and dismissed the counter claimof the defendant no.1- appellant.

3. The respondent no.1 herein was the plaintiff before thelearned Trial Court.

4. The plaintiff-respondent had filed Title Suit No. 63 of1998 seeking a decree for specific performance of contract andalso for declaration that the judgment and decree passed in TitleSuit No. 9 of 1997 in favour of the defendant-appellant was nulland void. The plaintiff sought a direction upon defendant no.2(respondent-defendant second party) to execute and register asale deed in his favour. The learned Trial Court held that thesuit was maintainable and that the defendant-appellant hadobtained an ex parte decree in Title Suit No. 9 of 1997 byplaying fraud upon defendant no.2 as well as upon the Court. Itwas further found that the plaintiff was in possession of thedisputed holding on the basis of the agreement for sale and notas a tenant under defendant no.1. The learned Trial Court alsoheld that the plaintiff is entitled to a decree as claimed on the basis of the agreement for sale dated 12.11.1989 executed bydefendant no.2 and defendant no.1 is not entitled to obtain anyeviction decree against the plaintiff as claimed in his counter-claim and further held that the suit is not barred by law oflimitation as well as the defendant no.1 has no right, title orinterest over any part of the suit holding and that the plaintiffhas valid cause of action to file the present suit.

5. Being aggrieved, the defendant-appellant filed TitleAppeal No. 282 of 2007, which was dismissed and the judgmentand decree was affirmed by the learned 6[th] Additional DistrictJudge, Patna City vide judgment and decree dated 07.11.2015.Hence, the present Second Appeal has been filed by thedefendant-appellant.

6. In order to gauge the matter in its correct perspective, itis necessary to briefly restate what the suit entails. The plaintiff-respondent filed Title Suit No. 63 of 1998 for specificperformance of contract in respect of the land appertaining toSurvey Plot No. 889, under Khata No. 265, Tauzi No. 5296,Thana No. 10, situated at Mauza-Raja Bazar, Pargana- Phulwari,P.S. Gardanibagh, District-Patna. The said land originallybelonged to Bibi Ayasha Khatoon and others, who sold thesouthern portion measuring six decimals to defendant no.2

through a registered sale deed dated 19.02.1979 on payment ofvaluable consideration and put the purchaser in possessionthereof. Subsequently, said Bibi Ayasha Khatoon and others solda portion of the land of Survey Plot No. 889, which had earlierbeen purchased by defendant no.2, in favour of Sri Hari SaranSingh, the father-in-law of defendant no.2 and also deliveredpossession to the purchaser. Further case of the plaintiff-respondent is that defendant no.2 being in need of money formeeting his legal necessities advertised for sale of the Schedule-I property described in the plaint. The negotiation for sale wasfinalized with the plaintiff-respondent for a total considerationof Rs. 12,500/-. Since defendant no.2 urgently required theentire amount for the medical treatment of his father, theplaintiff-respondent paid the full consideration of Rs. 12,500/-to defendant no.2. Upon receipt of the entire considerationamount, defendant no.2 executed an agreement for sale dated12.11.1989 in favour of the plaintiff-respondent.

7. Further case of the plaintiff is that the agreement to sellwas drafted by the defendant-appellant, who is the full brotherof the plaintiff, and after fully understanding the terms andconditions thereof, and upon receiving the entire considerationamount, the defendant/appellant made an endorsement on the agreement to sell in presence of witnesses, namely Hari SharanSingh, the father-in-law of defendant no.2, who also, in his ownpen, endorsed that Sunil Kumar Singh had received the entireconsideration amount in his presence. As per the terms of theagreement, defendant no.2 delivered possession of theSchedule-I property of the plaint to the plaintiff and allowedhim to use the property as owner with absolute rights ofpossession, enjoyment and control thereof. All acts carried outon the property were performed by the plaintiff-respondent inhis capacity as owner. According to the terms of the deed ofagreement, the sale deed was to be executed and registered afterthe medical treatment of the father of defendant no.2. In theevent of failure on the part of defendant no.2, the plaintiff wasentitled to get the sale deed registered through the process oflaw. It is further pleaded that the sale deed with respect to theSchedule-I property could not be executed and registered at therelevant time because the father of defendant no.2 was seriouslyailing and the plaintiff, being an employee in the subsidiaryIntelligence Bureau, Ministry of Home Affairs, Government ofIndia, was required to obtain prior permission from hisdepartment before purchasing any property in his name. Underthese circumstances, the agreement to sell dated 12.11.1989 was executed.

executed.

8. It is further pleaded that the plaintiff-respondent no.1,along with the original agreement to sell dated 12.11.1989,applied for permission from his department, and suchpermission was accorded on 14.12.1989 by the CentralIntelligence Office, S.I.B., Patna. A few days after thepermission was granted, the plaintiff-respondent no.1 wastransferred to Kohima (Nagaland) and was relieved from hisposting. Due to the great distance, there was a gap incommunication between the plaintiff-respondent no.1 anddefendant no.2, on account of which the plaintiff could notobtain any information regarding the illness of defendant no.2and his father nor did defendant no.2 provide any suchinformation. The plaintiff further pleaded that he made severalrequests to defendant no.2 for the execution and registration ofthe sale deed, both personally and through registered/UPCpostal communication, but the defendant no.2 evaded the sameon one pretext or another. In accordance with the terms of theagreement, the plaintiff constructed a house on the suit land andbegan residing there with his family. Consequently, theplaintiff’s name was mutated in the records of Patna MunicipalCorporation (PMC) and he has been paying municipal taxes thereon. The plaintiff also obtained electricity and waterconnections and transferred his ration card and gas connectionto the suit property. After completing construction, the plaintiffperformed the Grih Pravesh ceremony thereby confirming hisright, title, interest and possession over the Schedule-I propertyunder the agreement to sell dated 12.11.1989.It is furtherpleaded that the defendant-appellant has no connection or claimwith regard to the right, title, interest or possession of anyportion of the Schedule-I property. The plaintiff further contendsthat the defendant-appellant, being aware of the agreement tosell and having drafted it himself, started creating hindrance. On14.07.1998, the plaintiff learnt that the defendant-appellant hadobtained an ex parte decree from the Court of Munsif, 2[nd]Patna, in Title Suit No. 09 of 1997 against defendant no.2,without impleading the plaintiff as a party. The plaintiffimmediately approached the Civil Court, Patna, and obtainedcertified copies of the relevant papers of Title Suit No. 09/1997.From the certified copy of the records, it transpired that thedefendant-appellant committed fraud against both defendantno.2 and the plaintiff by obtaining the alleged ex parte decree on06.09.1997. The defendant-appellant had falsely disclosed theaddress of defendant no.2 as West Lohanipur and in collusion with the Nazarat Peon, showed service of summons upon him tothe Court. It is further alleged that the defendant-appellantobtained the signature of defendant no.2 on blank papers andVakalatnama in respect of the proceedings of T.S. No. 258/85pending in the Court of Sub-Judge- X, Patna, wherein he wasthe lawyer for the plaintiff and then used those signatures tofabricate the appearance and written statement of defendant no.2in T.S. No. 09/97 without the knowledge or consent ofdefendant no.2. On subsequent dates, the defendant-appellantfailed to appear and got the suit fixed for ex parte hearing andobtained an ex parte decree in his favour. The plaintiff-respondent no.1 further submits that he was always ready andwilling to perform his part of the contract and remained willingto complete the registration of the sale deed, but the defendantno.2 refused to perform his part of the contract under theagreement.Further, it is pleaded that the defendant/appellant hasneither acquired any right, title, or interest in the suit propertynor has any locus standi to institute the suit and the allegeddecree is not binding either on the plaintiff or ondefendant/respondent no.2.

9. On summons, defendant no.2/respondent no.2 appearedand filed his written statement. He admitted all the averments of

the plaint. He further stated that the defendant-appellant, who isthe plaintiff’s own brother, drafted the agreement dated12-11-1989 in his own handwriting and affixed his signaturetherein, representing himself as the legal practitioner. Inaccordance with the terms of the agreement, defendant no.2placed the plaintiff in possession of the lands mentioned in theagreement for sale and also authorized him to manage mattersrelating to the remaining portion of the property as defendantno.2 primarily resides elsewhere due to his official duties andthe care of his ailing father. It is further stated that defendantno.2 was always ready and willing to execute and register therequisite sale deed in favour of the plaintiff; however, owing tounavoidable circumstances arising from his father’s illness andlack of time due to official duties, the sale deed could not beexecuted despite the plaintiff having obtained the necessarypermission from his department. Further case of defendant-respondent No. 2 is that he has never avoided his obligationsunder the agreement and remains ready and willing to performhis part of the contract. It is admitted that the plaintiff-respondent constructed a house on a portion of the landmeasuring three decimals and is residing there with his family.He also got his name recorded in the Patna Municipal Corporation (PMC) in accordance with the terms of theagreement and has obtained an electricity connection for thepremises. It is further pleaded that the defendant-appellant, whois the brother of the plaintiff and had earlier acted as theplaintiff’s lawyer in Title Suit No. 258/85, was well aware of theagreement to sell executed in favour of the plaintiff by thisdefendant, as he was the scriber of the said agreement. Takingadvantage of the defendant's lack of time and without hispermission, the defendant-appellant received the original deedof agreement from the court of the Sub-Judge I, Patna, andretained it in his possession. Having became aware of this,defendant-respondent No.2 lodged a complaint before thelearned Trial Court and also before the Bar Council allegingprofessional misconduct on the part of the said lawyer. It isfurther pleaded that Title Suit No. 258/85 was decreed byjudgment and decree dated 16.03.1991. In that judgment, thelearned Trial Court found that despite the mischief involved, alldefendants in that suit admitted that the plaintiff was entitled torecover possession of the suit land, which included six decimalsbelonging to defendant No.2. Defendant-respondent No. 2 alsostates that the defendant-appellant filed a frivolous Title SuitNo. 09/97 in the Court of Munsif 2[nd], Patna, using a fictitious

address purportedly belonging to this defendant. Uponverification of the records of that suit, it was discovered that theplaintiff of the said suit, who is a practicing lawyer, committedfraud and deception by falsely showing this defendant’s addressas being in Lohanipur West, Patna. In collusion with theNazarat Peon, the plaintiff attempted to show that summon wasserved even by forging the defendant’s signature. Further, it wasrevealed that the said Shashi Bhusan Singh filed a forged andfictitious ‘Vakalatnama’ and a fabricated written statement inthe name of defendant no. 2. All these acts, including thealleged receipt of summons, appearance in Court and filing of awritten statement were fraudulent and carried out by defendant-appellant, who engaged a lawyer of his own choice andintentionally failed to pursue the case, thereby obtaining an exparte decree against defendant no. 2 in Title Suit No. 09/97.Thisex parte decree is void ab initio and does not create any legalrights or interests in favor of Shashi Bhusan Singh; hence, it isnot binding on defendant no. 2. At the relevant time in 1997,this defendant was posted in Gaya and resided there with hisfamily and therefore, was not residing at Lohanipur West, Patna.He never received any summons in connection with Title SuitNo. 09/97 and never appeared in the proceedings nor filed any written statement. The original deed of agreement to sellexecuted by this defendant in favour of the plaintiff never cameinto the possession of the defendant-appellant. All allegationsand assertions made by the defendant-appellant in that suitagainst this defendant are categorically false, baseless anddenied. It is further stated that defendant no. 2 never receivedany payment whatsoever from Shashi Bhushan Singh(appellant) nor did the said Shashi Bhushan Singh have anyinvolvement in the transaction except that he acted as the scriberof the agreement to sell. He only learnt about the transactionbecause he worked as a lawyer in Title Suit No. 258/85.Inconclusion, it is asserted that the plaintiff-respondent is entitledto a decree of specific performance against defendant no. 2.

10. The defendant-appellant has appeared and filed hiswritten statement-cum-counter claim, wherein he pleads that theplaintiff-respondent has no locus standi to file the present suitagainst the defendant-appellant. The defendant-appellantsubmits that the suit is based on a deed of agreement for saledated 12-11-1989 allegedly executed by defendant no.2/respondent no. 2, which creates a right only against thevendor. Consequently, the plaintiff-respondent cannot assert anyinterest in the property against any other person until his suit for

specific performance is decreed. Further, the defendant-appellant pleads that the plaint erroneously combines twodistinct causes of action against two separate parties: one arisingon 12-11-1989 involving defendant no. 2/respondent No. 2 andthe another on 14-07-1998 based on the decree in Title Suit No.09/97 against the defendant no.2. This combination is barredunder law and hit by the law of limitation. The deed ofagreement for sale is dated 12-11-1989 and the suit was filed bythe plaintiff on 28th July 1998 i.e., after a lapse of 8 years, 8months and 16 days which is time-barred and the limitationperiod for filing a suit for specific performance of contract isonly three years. Therefore, the present suit is barred by thestatutory limitation period. It is further pleaded that the delay infiling the suit is attributable only to the plaintiff and not todefendant no. 2. Consequently, the suit is liable to be dismissedon this ground alone. Further, the decree in Title Suit No. 09/97is against defendant no. 2 only and does not affect the plaintiff,who was neither a party nor impleaded on either side. Theplaintiff has not acquired any right, title or interest in theproperty by virtue of the alleged agreement for sale. Therefore,the plaintiff has no locus standi to seek any relief from the Courtagainst the defendant-appellant. It is further submitted that the plaintiff has no connection with defendant no. 2 nor does theplaintiff hold possession through him under the allegedagreement for sale. The plaintiff’s claim of having constructed abuilding on the suit premises is entirely false, fabricated and aconcocted story intended only to unlawfully misappropriate themonthly rent payable to the defendant-appellant. The land inquestion, measuring six decimals of S.P. Plot No. 889 wasacquired by the defendant-appellant from his own income. Theentire construction on the land was carried out by him between1992 and 1997. The defendant-appellant has also been regularlypaying all government taxes related to the property and has beenresiding permanently on the southern side of the plot for a longtime. All allegations made by the plaintiff in the plaint aredenied by the defendant-appellant.

11. The further case of the defendant-appellant is that theplaintiff is his elder brother, who took the premises in-questionon a monthly rent of Rs. 2,000/- starting from 01-10-1997 andgranted receipt dated 03-07-1997. In this receipt, the plaintiffacknowledged that the entire consideration amount had beenpaid by the defendant-appellant himself, as stated in the allegeddeed of agreement. The plaintiff has been residing in thedefendant-appellant’s premises as a tenant. If the plaintiff has

obtained any receipt from the Patna Municipal Corporation(PMC), such receipt was procured collusively and without theknowledge or consent of the defendant-appellant. Further, aspart of the counter-claim, it is stated that the plaintiff occupiesthe suit premises as a month-to-month tenant according to theEnglish calendar month. Consequently, the rent due for the suitpremises amounts to Rs. 36,000/- for the period from01-10-1997 to March, 1999. The defendant-appellant has notreceived any rent in respect of the monthly amount of Rs.30,000/- which was adjusted against expenses incurred forfixing the door, windows, grills and other fittings, the cost ofwhich was paid by the defendant-appellant based on thecommitment made at the time of letting out the premises.Therefore, a rent arrear of Rs. 6,000/- remains due and payableby the plaintiff. The plaintiff has become a defaulter under thelaw and is liable to eviction under Section 11(a) of the BiharBuildings (Lease, Rent and Eviction) Control Act. (B.B.C. Act).Further, the plaintiff has committed a breach of contract byfiling the present suit. The defendant-appellant claims thiscounter-claim under Order VIII, Rule 6A of the Civil ProcedureCode (C.P.C) to avoid multiplicity of litigation. Accordingly, thedefendant-appellant prays for relief in the form of eviction of the plaintiff/respondent from the suit premises as described inSchedule-1 of the plaint and a decree for Rs. 6,000/- as arrearsof rent in favour of the defendant-appellant against the plaintiff.

12. In response to the counter-claim filed by thedefendant, the plaintiff-respondent has submitted a writtenstatement denying all allegations made in the defendant-appellant’s written statement-cum-counter claim. The plaintiffasserts that these allegations are entirely false, incorrect andtherefore, not maintainable. Further, it is completely untrue thatthe plaintiff, Ranjan Prasad Singh, is residing in the suitpremises as a tenant of the defendant-appellant. In fact, the suitpremises were handed over to the plaintiff by defendant No. 2,the original landlord, pursuant to an agreement for sale dated12-11-1989. The defendant-appellant, being the youngerbrother, was fully aware of the legal procedures and had evendrafted the aforementioned agreement for sale. Consequently,the defendant-appellant has no interest or concern of any kind inthe suit property. The defendant-appellant’s claim of ownershipover the suit premises is wholly baseless and contrary to thefacts and the plaintiff accordingly denies it. Since no landlord-tenant relationship has ever existed between the plaintiff and thedefendant-appellant, the provisions of the B.B.C. Act have no applicability in this case. The plaintiff is in lawful possession ofthe premises and is not liable to eviction. The plaintiff denies thedefendant’s allegations made in the counter claim and furtherstates that the written statement-cum-counter claim is false,fabricated and without merit. The alleged rent amount claimedby the defendant is imaginary and incorrect. The defendant-appellant has no cause of action to file the counter claim againstthe plaintiff and therefore, the counter claim is not maintainableand should be dismissed outright.

13. The learned Trial Court, after considering thepleadings, evidence adduced by the parties and materials onrecord, decreed the suit and dismissed the counter claim filed bythe defendant-appellant, which was challenged by thedefendant-appellant in Title Appeal No. 282 of 2007.

14. After hearing the parties and considering thematerials on record, the learned 6[th] Additional District Judge,Patna City (Patna), dismissed the appeal vide judgment anddecree dated 7.11.2015, thereby affirming the judgment anddecree of the learned Trial Court. Aggrieved by the saidjudgment and decree of the learned Court of Appeal, the instantSecond Appeal has been filed.

15. After hearing the submissions made on behalf of the parties and on perusal of the materials on record, including thejudgment of the learned Courts below, it appears that the learnedCourt of Appeal below, being the final court of facts, afterconsidering the pleadings of the parties and the evidenceadduced by them, came to a clear finding that theplaintiff/respondent has valid right and possession over the suitland by virtue of the agreement for sale dated 12.11.1989 andafter execution of the sale deed, he became the absolute ownerof the disputed land. The title will be transferred to the plaintiffafter the execution of the sale deed by defendant no. 2. Thelearned Appellate Court further held that upon perusal of Ext. 6,the deed of agreement for sale, it is evident that this Exhibit wasdrafted by the younger brother of the plaintiff, namely SashiBhushan Singh, the defendant-appellant. Defendant No. 2 hasasserted in Ext. 6 that after receiving the consideration amountof Rs. 12,500/- from Ramjanam Singh (plaintiff), he executedthe deed of agreement for sale in respect of 3 decimals out of 6decimals of land and put the plaintiff in possession of the suitland and allowed the plaintiff to utilize the same as the owner ofthe suit land. It is also mentioned that the plaintiff has the libertyto get the execution of the sale deed after the death of his father.Therefore, it is clear from perusal of Ext. 6 that the deed of agreement for sale was executed by defendant No. 2 in favour ofthe plaintiff-respondent on 12.11.1989 and that defendant No. 2received the consideration money and that defendant No.2/respondent No. 2 put the plaintiff-respondent in possession ofthe land as mentioned in the deed of agreement for sale. Thedefendant-appellant (D.W.1), in his deposition at paragraph 5,stated that he paid the consideration money on 12.11.1989 andkept the said money at his home. He admitted that he has notbeen an income tax payer since 1989 till date. Further, heasserted that he is unable to produce any receipt or document toprove the payment of the said consideration amount. Thiswitness also admitted in paragraph 20 that he drafted the deed ofagreement for sale (Ext. 6) on 12.11.1989.However, defendantno. 2, in his written statement, has admitted the fact that theplaintiff paid the consideration amount of Rs. 12,500/-. Ext. 6also clearly shows that defendant no. 2 put the plaintiff inpossession of the land as mentioned in the deed of agreementfor sale. Ext. A-1 is the receipt filed and proved on behalf of thedefendant-appellant alleged to be a rent receipt for Rs. 2,000/-dated 03-07-1997 as monthly house rent. The plaintiff hasdenied that the signature of R.J.P. Singh on the receipt is his.Moreover, the receipt appears to be on a plain sheet of paper

rather than on stamp paper or full scape (non stamped) paper.The learned Appellate Court, upon comparing the plaintiff’ssignature on the alleged receipt dated 03-07-1997 (Ext. A-1)with the signature of the plaintiff on the verification of the plaintin Title Suit No. 63/98 and on Ext. 1/A Vakalatnama, found thatthe signatures do not match. The plaintiff has denied and notadmitted his signature on Ext. A-1.The defendant-appellanthaving taken the risk of not examining an expert witness despitethe opportunity to do so, cannot now challenge the judgmentunder appeal on the ground of not affording an opportunity toexamine an expert. Therefore, the learned Appellate Court heldthat Ext. A-1 was not executed by the plaintiff/respondent. Exts.2 and 2/e are municipal tax receipts, which demonstrate that theplaintiff-respondent, Ram Janam Singh, paid municipal tax forholding No. 583/A from 1996 to 2000. It is a settled principle oflaw that an agreement for sale does not confer title. However,this document supports the fact that possession of the propertyunder the agreement for sale was delivered to the plaintiff. Therecital of the agreement for sale clearly shows that possession ofthe land, in question, was delivered to the plaintiff. Exhibits 2 to2/e, as well as Exts. 8 to 8/a (electricity bills) establish theplaintiff’s possession over the suit land.

16. The learned Appellate Court further held that uponperusal of the records, it transpires from the order sheet dated20-01-2005 that the affidavit of evidence of defendant no. 2 wasfiled and he was partly examined on that date. The case wasthen fixed for further cross-examination on 22-01-2005, and onthat date defendant no. 2 was cross-examined by the plaintiffand partly examined by the defendant-appellant. The case wassubsequently adjourned. On 05-03-2005, defendant no. 2 wasagain partly examined by the defendant-appellant, and the suitwas fixed for further cross-examination on 11-03-2005. On thatdate, the defendant-appellant filed a petition to close theevidence of defendant no. 2. It is further observed that thedefendant-appellant had the opportunity to cross-examinedefendant no. 2 but he deliberately delayed the proceedings. Inview of these facts, it cannot be said that defendant no. 2absconded from the witness box or that his written statementcould not be considered. Defendant no. 2 appeared, filed hiswritten statement gave evidence in court and was cross-examined at length by the plaintiff. Despite two dates scheduledfor cross-examination, the defendant-appellant could notconclude the process, and the learned court below closed theevidence on the prayer of defendant no. 1. Defendant no. 2

admitted the plaintiff’s case, including the fact that Ext. 6, thedeed of agreement for sale was executed by defendant no. 2 infavour of the plaintiff. It is also admitted that the said Ext. 6 wasdrafted by defendant no. 1. Defendant no. 2 admitted the entirefacts of the plaint in his written statement. It is a well-settledprinciple of law that admitted facts do not require further proof.Therefore, it is clear that the appellant had personal knowledgeof the terms settled in the agreement for sale between defendantno. 2 and the plaintiff. The transaction was concluded inpresence of the defendant-appellant. Accordingly, the defendant-appellant cannot challenge the validity of the deed of agreementfor sale or the payment of consideration money. In light of theabove facts, the written statement filed by defendant no. 2cannot be discarded and must be taken into account in resolvingthe dispute between the parties. Further, the alleged rent receipt,Ext. A-1, was not signed by the plaintiff and is not a genuinerent receipt. It appears to have been fabricated by defendant no.1 for reasons best known to him. There is no landlord-tenantrelationship between the plaintiff and the defendant-appellantwith respect to the alleged suit premises. The learned lowerAppellate Court rightly held that the defendant-appellant is notentitled to an eviction decree against the plaintiff as claimed in the counter claim. Accordingly, dismissed the appeal filed by thedefendant.

17. Considering the materials on record and thesubmissions of the learned counsel for the parties, it appearsthat both the Courts below have concurrently held that the deedof agreement for sale (Ext. 6) was executed by defendant no. 2in favour of the plaintiff and that the entire consideration moneywas paid at the time of execution of the agreement for sale inpresence of witnesses, namely Hari Saran Singh, the father-in-law of defendant no. 2, who endorsed that Sunil Kumar Singhreceived the entire consideration money in his presence. It isalso an admitted fact that the defendant-appellant, who draftedthe deed of agreement is a lawyer. It is further admitted that thedefendant-appellant is the full brother of the plaintiff. Thedefendant-appellant failed to prove his counter-claim that 6decimals of land of S.P. Plot No. 889 were acquired by himfrom his own income and that the entire construction work wascarried out by him. The plaintiff is the elder brother of thedefendant-appellant and as per the case of defendant-appellant,his elder brother ( plaintiff) had taken the premises in-questionon a monthly rent of Rs. 2,000/- from 01-10-1997, as evidencedby the receipt dated 03-07-1987, in which the plaintiff acknowledged the payment of the entire consideration money bythe defendant-appellant himself. The defendant-appellantproduced Ext. D, which is a receipt of Patna MunicipalCorporation standing in the name of Shanti Bhusan Singhrelated to house No. 583 dated 21-09-2000. However, thedisputed house of the plaintiff, bearing house No. 583/A, doesnot help the defendant-appellant in establishing possession ofthe suit premises. Both the Courts have concurrently held thatdocument Ext. A-1 was not signed by the plaintiff and is not avalid rent receipt. A comparison of the plaintiff’s signatures onthe verification of the plaint in Title Suit No. 63/98 and on Ext.1/A ‘Vakalatnama’ clearly shows that the signatures on Ext. A-1do not match from those of the plaintiff-respondent no. 1.Consequently, both Courts have held that Ext. A-1 was notexecuted by the plaintiff. Moreover, defendant no. 2 fullysupported the case of the plaintiff and confirmed the executionof the deed of agreement for sale (Ext. 6) in favour of theplaintiff on payment of entire consideration money of Rs.12,500 by the plaintiff to the defendant No.2.

18. Considering the facts and findings of both the Courtsbelow, I am not inclined to interfere with the concurrent findingof the learned Courts below. There is no question of law shyambihari/- U

inasmuch as no substantial question of law is involved in this case.

19. Accordingly, the instant Second Appeal is dismissedat the stage of hearing under Order XLI Rule 11 CPC.

20. Pending interlocutory application(s), if any, shall stand disposed of.

(Khatim Reza, J)