Jharkhand High Court
M/S.Kedar Nath Shyam Sundar & vs Hemalata Kotecha & Ors. on 19 May, 2010
Equivalent citations: 2010 (4) AIR JHAR R 526, AIR 2011 (NOC) (SUPP) 914 (JHAR.), (2010) 3 JCR 556 (JHA), AIR 2011 (NOC) (SUPP) 914 (JHA)
Author: Prashant Kumar
Bench: Prashant Kumar
CIVIL REVISION NO. 47 OF 2005
[In the matter of an application under Section 14 (8) of Bihar Building
(Lease, Rent and Eviction) Control Act, 1982]
1. M/s. Kedar Nath Shyam Sundar
2. Kedar Nath Agrawal
3. Shyam Sundar Agrawal@Bhallu
..... .......Petitioners/Defendants
Vs.
1. Hemlata Kotecha
2. Har Govind Kotecha
3. Chandra Kant Kotecha
4. Parbina Vashani
5. Geeta Gadhiya
6. Indu Thakkar
7. Punita Kotecha
8. Harshad Kotecha @ Pappu
..... ......Opposite Parties/Plaintiffs
For the Petitioners/Defendants: Mr. Manjul Prasad. Sr. Advocate
Mr. Manoj Kumar
For the Opposite Parties/Plaintifs:Mr. P.K. Prasad, Sr. Advocate
Mr. Ayus Aditya
........
PRESENT HON'BLE MR. JUSTICE PRASHANT KUMAR C.A.V. ON 21.4.2010 Delivered On: 19.05.2010 Prashant Kumar, J: This revision is directed against the judgment and decree dated 19.3.2005 passed by Munsif, Hazaribagh in Eviction Suit No. 22 of 1998, whereby and whereunder the petitioners/ Defendants were directed to hand over vacant possession of the suit premises to the opposite party no. 8.
2. It appears that the opposite parties/plaintiffs filed a suit for eviction of petitioners/defendants from the suit premises, the details of which given in Schedule-A to the plaint, on the ground of personal necessity . It is stated that the suit premises was originally owned by Shyam Ji Amba Ram Kotecha, the father of Durlabh Ji Kotecha( Original plaintiff no. 1) . It is further stated that on 22.2.1949 Shyam Ji Kotecha partitioned his property amongst his four sons and the suit premises alloted in the share of Durlabh Ji Kotecha. Further case of the opposite parties/plaintiffs is that, the original Plaintiff no. 1 let out the suit premises to petitioners/defendants on rent of Rs. 65/- per month . It is further stated that later on the rent was enhanced. It is further stated that at the time of filing of the suit, the petitioners/defendants were paying Rs. 501/- per month as rent. It is further stated that Durlabh Ji Kotecha ( Original Plaintiff No. 1) also partitioned his properties amongst his sons. The suit premises came in the share of opposite party no. 8 (Plaintiff no. 2) namely, Harshadji Kotecha. It is stated that the deed of partition was accordingly prepared and authenticated before the Notary Public, Ramgarh on 12.7.1995. It is stated that thereafter opposite party no. 8 got the suit property mutated in his name. It is further stated that opposite party no 8 being an un- employed graduate is sitting idle without any job and business. It is further stated that opposite party no. 8 is residing in the house of his brother. Accordingly, it is stated that opposite party no. 8 require the suit premises for his residential purposes as well as for opening a shop for running the business of Motor Tyre, Tube & its Accessories. It is also stated that from the partial eviction of the suit premises, the purpose of the opposite party no. 8 will not be served, thus he requires the entire suit premises. It is stated that the opposite party no. 8 had requested the defendants to vacate the suit premises but they finally on 1.12.1998 refused to vacate the same, therefore the present suit filed.
3. It appears that the petitioners/defendants contested the suit and filed written statement. It is admitted by petitioners that the original plaintiff no. 1 is the owner of suit premises. It is also admitted by the petitioners/defendants that they are occupying the suit premises as tenant. However the petitioners/defendants denied the assertion of opposite parties/plaintiffs that a partition took place in the year 1995 and in the said partition the suit premises come in the share of opposite party no. 8. It is further stated that the opposite party no. 8 is not unemployed and is doing the business of Motor parts, Motor tyre and tube in a portion of Holding No. JC 23/A standing over the Plot No. 474 near Shanti Talkies, Ramgarh. It is further stated that besides the aforesaid business, opposite party no. 8 is also dealing in edible oil and food grains as commission agent. It is also stated that opposite party no. 8 is also looking after the management of Cinema Halls namely, Shanti Talkies and Ashok Cinema. It is stated that plaintiffs have no personal requirement for the suit premises. It is also stated that even assuming that the opposite parties/plaintiffs have personal necessity for the suit premises, then also the purpose of opposite parties/plaintiffs will be served from partial eviction of the suit premises. Accordingly, it is submitted that the suit is liable to be dismissed with costs.
4. On the basis of rival pleadings of the parties, the learned court below framed following issues.
i. Is the suit maintainable in its present form?
ii. Whether the plaintiffs have valid cause of action for the
present suit?
Iii. Whether the suit was barred by the Law of Estoppel,
Acquiescence, and Waiver?
iv. Whether the suit was bad for misjoinder of the parties?
v. Whether the provisions of the B.B.C. Act, 1982 was
applicable within Ramgarh Cantonment area where the suit property was situated?
vi. Whether the plaintiffs requirement of the suit premises for their personal use and occupation was reasonable, bonafide and in good faith?
Vii. Whether the partial eviction of the suit premises would serve the need of the plaintiffs?
Viii. Whether the plaintiffs are entitled for the decree as claimed for in the suit?
ix. To what relief or reliefs the plaintiffs are entitled to?
5. It appears that in the court below, the parties adduced both oral and documentary evidence in support of their cases. It then appears that the learned court below after considering the evidences decided all the issues in favour of opposite parties/plaintiffs and decreed the suit, against that present revision filed.
6. Sri Manjul Prasad, Senior Advocate appearing for the petitioners/defendants, submitted that the learned court below not appreciated the evidence correctly and wrongly come to the conclusion that the opposite parties/plaintiffs require the suit premises for bonafide personal necessity. It is further submitted that the opposite parties/plaintiffs require the suit premises for starting a business of Motor Tyre, Tube and its Accessories. It has come in the evidence that the said business can be opened in a space of 8'x11' because other similar shops are located in aforesaid space. Accordingly, it is submitted that learned court below wrongly came to the conclusion that by partial eviction the purpose of personal necessity of the opposite parties/plaintiffs will not be served. It is submitted that aforesaid erroneous finding of learned court below cannot be sustained in this revision.
7. On the other hand Sri P.K. Prasad, Senior Advocate appearing for the opposite parties submitted that the opposite party no. 8 had adduced evidences to show that he is unemployed at the time of filing of the suit and on that date he was residing in the house of his brother. Thus, the court below rightly came to the conclusion that the opposite parties/plaintiffs require the suit premises for personal necessity. It is further submitted that the opposite parties/plaintiffs require the suit premises for business as well as for his residential purpose, therefore the court below rightly concluded that partial eviction of petitioners from suit premises will not served the purpose of opposite party no. 8. Accordingly, it is submitted that there is no illegality and/or irregularities in the impugned judgment of the court below.
8. Having heard the submission, I have gone through the record of the case. It appears from Ext-2 that in the year 1949 the suit premises along with other properties came in the share of original plaintiff no. 1. From Ext. No. 3 it further appears that the suit premises and other properties came in the share of opposite party no. 8. The aforesaid fact is also supported by P.W. 2, P.W. 6 and P.W. 7. It further appears from Ext.-6 that opposite party no. 8 got his name mutated against the suit property. Thus, the aforesaid evidences show that opposite party no. 8 is the sole owner of suit property.
9. P.W. 2, who is the brother of opposite party no. 8, has stated in his deposition that since the opposite party no. 8 has no other residential house, therefore, he is residing in the house of P.W. 2. The evidence available on record further shows that the opposite party no. 8 married in the year 1997 and he is a graduate. There are also evidences on record to show that earlier opposite party no. 8 was looking after the management of Cinema Hall, but after the closer of Cinema Hall he became jobless, therefore he wants to open a shop of Motor Tyre, Tube and its Assessors at the suit premises. Apart from that he also wants to reside in the suit premises, because the said suit premises had three separate rooms and a Veranda. The contention of petitioners/ defendants that the opposite party no. 8 is running a shop at Holding No. JC23/A is not correct. Ext- 10 and 11 shows that on Holding No. JC/ 23A one Bijay Kumar Sobti is running a business in the name and style of M/s Bijay Engineering Works. The said Bijay Kumar Sobti has been examined in this case as P.W. 10. He stated that he is doing a business on Holding No. JC 23A in the name and style of Bijay Engineering Works. He admitted that he is tenant of opposite party no. 8. He further specifically stated that opposite party no. 8 never did any business on Holding No. JC /23A. Thus, in view of Ext. 10 and 11 read with statement of P.W. 10, I find that at the time of filing of the suit, opposite party no. 8 was not doing any business on Holding No. JC/23A. Petitioners/defendants not produced any evidence to show that opposite party no. 8 was doing business of edible oil and food grains as commission agent. Thus, I find that the court below rightly came to the conclusion that at the time of filing of the suit the opposite party no. 8 was unemployed and was residing in the house of his brother, therefore requirement of suit premises on the ground of personal necessity is bonafide and reasonable. Thus, I find no irregularity in the said finding.
10. Now, coming to the finding of learned court below on the point of partial eviction, I am of the view that the said finding is also correct. Because the opposite party no. 8 stated that he required the suit premises for his residential purpose as well as for the purpose of business. It has been asserted by the petitioners/defendants that the area of the suit premises is 60'x16' consisting of three rooms with a Veranda on the northern side. Thus, even if some portion of the suit premises is being used for business purpose the rest of the suit premises required by the opposite party no. 8 for residential purposes. Thus, in my view, by partial eviction the purpose of the opposite party no. 8 will not be served. Therefore, I find no ground to interfere with the aforesaid finding of the learned court below.
11. In view of the discussion made above, I find no illegality in the impugned judgment and decree. Thus, the same is hereby affirmed.
12. In the result, I find no merit in this revision application and the same is accordingly dismissed. However, the parties shall bear their own costs.
( Prashant Kumar,J.) Jharkhand High Court, Ranchi Dated 19 / 05 /2010 Sharda/NAFR