Patna High Court
Mani Lal vs Indra Sao on 3 October, 1997
Equivalent citations: 1998(1)BLJR579
Author: P.K. Deb
Bench: P.K. Deb
JUDGMENT P.K. Deb, J.
1. This Revision petition has been preferred under Section 14(8) of the B.B.C. Act against the judgment and decree dated 25.8.1995 passed by the then Munsif, Ranchi in Title Suit No. 6/92.
2. The plaintiff-Opposite party filed the abovementioned suit under Section 14 of the B.B.C. Act for eviction of the petitioner on the ground of his personal necessity as he required the entire tenanted premises for using the same as approach to the inner portion of his house.
The suit premises is a portion of old Holding No. 352 and new holding No. 498 within Ward No. 2 of Ranchi Municipal Corporation situated at Mahabir Chowk, Upper Bazar, Ranchi. According to the plaintiff, as per registered deed of partition dated 25.11.1991 the plaintiff and his brother separated themselves and the suit premises had fallen into his share. The defendant was a tenant at the rental of Rs. 40/- since before partition in the suit premises. According to the plaintiff, he was feeling much inconvenience for ingress and outgress to his residential premises on the back of the suit premises as there was no passage. He is now using the common passage with his elder brother, but the brother who has been separated by the partition deed is raising objections for using the common passage and was asking the plaintiff to get his own passage and as such the plaintiff requires the suit premises for his own use and occupation. According to the plaintiff, after the partition, the defendant was informed by lawyer's notice dated 17.12.1991 and the defendant was attorned to the plaintiff and he also accepted the attornment by a written notice dated 10.1.1992. According to the plaintiff, the defendant has paid rent upto 1st January, 1992. The suit has been filed for personal necessity of the plaintiff.
3. Defendant on appearance after taking due permission filed written statement contending, inter alia, that the suit was not maintainable and that the plaintiff has no cause of action etc. The defendant had also denied the partition of suit premises as alleged by the plaintiff and that the same was beyond his knowledge and that the suit premises did never fell into the share of the plaintiff and that the plaintiff was not his landlord. According to the defendant, one Bhagwan Sahu son of Rmphal Sahu was the original owner of the suit property and the defendant came in possession of the suit premises as a tenant on nominal rent of Rs. 5/- only long back. According to the defendant, the plaintiff and his brother had entered into a conspiracy to demolish the suit d premises in order to get much money by making further construction. The harassment made to the defendant gave rise to a proceeding under Section 107 Cr.P.C. and 144 Cr.P.C. and the plaintiff was directed not to disturb the possession of the defendant till he goes on paying rent. It was further contended that at the advice and instigation of evil persons in the locality the plaintiff and his elder brother were still harassing the defendant and as such he had to file Title Suit No. 74 of 1986 for declaration of his tenancy right and forceful eviction and in that suit the plaintiff appeared and filed written statement. The said suit was disposed of on 11.5.1989 on the basis of the written statement of the defendant and on the petition filed on 8.10.1986 wherein the plaintiff assured the defendant not to damage any wall or structure of the tenanted shop under Manilal Sao. According to the defendant, in view of the decision arrived at in the aforementioned Title Suit, the present suit is not maintainable and the same is barred by resjudicate etc. It was further stated that the personal necessity which had been alleged by the plaintiff was nothing but a false plea only to get the defendant evicted from the suit premises.
4. On the basis of the pleadings, following issues were framed:
1. Is the suit as framed maintainable?
2. Has the plaintiff got valid cause of action for the suit?
3. Is there relationship of landlord and tenant in between the plaintiff and defendant?
4. Does the plaintiff require the suit premises for his own use and occupation reasonably and in good faith?
5. Can requirement, if any, of plaintiff be satisfied by partial eviction?
6. To what other relief or reliefs, if any, is the plaintiff entitled to?
5. In the suit, the registered partition suit, Ext. 3 was proved and it could be found by the learned Court below that the tenanted premises came into the share of the plaintiff. It was also held on the basis of the evidence on record that the defendant after partition had attorney to the plaintiff and as such the relationship of landlord and tenant existed between the parties.
6. In the course of proceedings in the suit, an Advocate Commissioner was appointed for local inspection and he submitted his report also and the learned Court below on the basis of that report came to the finding that the plaintiff had no other passage to enter in to his residential portion on partition except that of the common passage between the two brothers and as such the plaintiff definitely requires the suit premises to open up passage for ingress and outgress to his residential premises by demolishing the suit premises. Hence the decree of eviction has been granted.
7. Mr. Debi Prasad, appearing for and on behalf of the defendant-petitioner challenged the impugned judgment of eviction on the following grounds:
(i) The partition deed never reveals that the common passage which is being used now by both brothers had gone into the share of the plaintiff's elder brother and as such the plaintiff has got no passage for ingress and outgress;
(ii) The position of the suit premises does never satisfy the alleged necessity for the purpose of opening up of passage unless Soni Electricaly which have been set up just before the filing of the suit is being disturbed. Reference has been made to that effect to the evidence of PW-2.
(iii) The Advocate Commissioner's report which has been referred to by the learned Court below in the impugned judgment has never been accepted by the Court, although objection was raised against the Commissioner's report and that objection was never been heard. So such reliance on the Commissioner's report is totally bad in the eye of law;
(iv) Legally, there is no scope of any personal necessity covered under the provisions of Section 11(1)(c) of the B.B.C. Act regarding opening up of passage for coming to the residential premises.
8. On the other hand, Mr. P.K. Prasad, appearing for the plaintiff-Opposite party has controverted all the submissions of Mr. Debi Prasad by referring to the evidence on record and also by referring several judgments of this Court and also the Supreme Court.
9. On the first point, as formulated above, it is the submission of Mr. Debi Prasad that the partition deed which has been marked as Ext. 3 in the case nowhere clarifies that there is no passage for coming in and out of the plaintiff. Several properties have been included in the partition deed and wherein the suit property has been included i.e. Schedule-A Clause-2, it is just mentioned that the northern half of Ranchi Municipal Survey Plot No. 657 of Ward No. II having been part of old Ranchi Municipal Holding No. 352 and new Holding No. 498 with Pucca wall situated at Upper Bazar, Mahabir Chowk having area of 1677 Square feet and this portion had gone into the share of the elder brother of the plaintiff meaning thereby southern portion had gone to the share of the plaintiff. There is nothing regarding the passage for entrance and outlet to the portion allotted to the brothers but a passage is there on the northern portion and it is admitted in the evidence from the plaintiff's side that the said passage is being used by both the brothers and the word 'common' has also been used by the witnesses. Unless, specifically it has been mentioned that this passage has gone into the share of elder brother, there is no scope to construe that this passage cannot be used by the plaintiff rather it would be presumed that when there is only one passage and when nothing has been written then same passage remained as passage between the brothers.
10. Mr. P.K. Prasad, appearing on behalf of the plaintiff tried to impress upon this Court that if the partition deed and the Advocate Commissioner's report and the sketch map given by him are construed then it could be found that the northern half including the passage had gone into the share of the elder brother.
11. I have already mentioned that the Advocate Commissioner's report had not been accepted by any specific order by the learned Court below and any reliance put on that Advocate Commissioner's report, when objected to form the side of the defendant would be against the provisions of law. Moreover, the partition could be made between the brothers that too with respect to the residential house without making any provisions for the passage seems to be an impossibility and in normal course when there is nothing specific written it must be construed as a common passage on the northern side for ingress and outgress for both the brothers. Hence, the first point formulated goes in favour of the defendant.
12. As regards the second point, form the evidence of one of the plaintiff's witnesses, it could be found that the passage cannot be made if the defendant is evicted unless a portion of Soni Electricals can be taken possession of. PW-2 again stated that Soni Electricals had been inducted after the partition was made and before filing of the suit. Whether he has been inducted much earlier or recently has got no much bearing when there is no eviction suit against Soni Electricals and as per the plaintiff's witness passage cannot be made without taking a portion of Soni Electricals.
13. About the third point, I have already stated that Advocate Commissioner's report had not been accepted by the Court below but reliance was put on that report, although written objection was filed fro the side of the defendant and that objection had not been considered by the learned Court below and as such reliance on such report is definitively wrong and illegal.
14. About the fourth point i.e. whether opening up a passage by demolishing the suit house comes within the purview of necessity as contemplated under Section 11(1)(c) of the BBC Act is required to be decided.
Section 11(1)(c) of the BBC Act reads as follows:
Whether the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord.
15. Mr. Debi Prasad, by relying on the judgment of this Court as reported in 1969 BUR 164 Abdul Ghaffar v. Swal Ram Beenapani Sarkar v. Inderdeo Singh submitted that for the purpose of passage no eviction suit for personal necessity can be maintainable. By referring to the wordings of Section 11(1)(c), it is the contention that the suit building can be taken possession of the eviction on the ground of personal necessity, but for the purpose of demolition of the same, there is no scope to pray for eviction on the ground of personal necessity.
16. Facts of those two cases were not akin to the present case. These two judgment were considered by a Single Bench of this Court in Civil Revision Nos. 83, 85 and 86 of 1996 (R)(Analogous) and in that case it was held that if after taking possession of the suit premises on the ground of personal necessity if there is any remodelling or reconstruction of it for which plan had been passed, it cannot be said that 11(1)(c) would not been attracted in such sort of cases. In the present case, the question of remodelling or reconstruction is not there. Here only purpose is for demolition for opening up a passage and in my view the same may not be covered within the provisions of Section 11 (1)(c) in this particular case. 1988 PLJR 255 Krishna Kant Pandey and Anr. v. Sunita Bala Sarkar relates to a case wherein a Single Bench of this Court has restricted the scope of the Section 11(1)(c) holding that the bonafide necessity under this provision can be restricted only for the purpose of residence or trade or vocation and nothing more than that.
17. But in a congested area if in a given case the co-sharers have partitioned and there is dearth of passage for ingress and outgress then perhaps a tenanted premises can be required for making out the passage but that would depend upon the circumstances of each particular case. Only because a tenant is there for a long time, he cannot have a vested right to the detrimental interest of the landlord if the landlord cannot enjoy his own residence properly for the existence of the tenanted premises, then in my view, for the purpose of passage a tenant can be evicted also.
In this connection, 1996 (1) PLJR 216 Ratan Lal Rai v. Sheo Kumar Kamalla of the Division Bench of this Court may be referred to, therein the bonafide necessity was for demolition of the building for the purpose of the landlord's requirement to go from one portion to another and it was held to be not attracted for bonafide necessity under Section 11(1)(c) of the Act. But, if the dire necessity is there for ingress and outgress to the own residential house on partition between the co-sharers, as stated above, then in my view the said purposes for opening up of a passage can be attracted under Section 11(1)(c). In the Division Bench, two grounds were there. One ground was for opening a shop and another ground for coming from one portion to another portion of the building premises. Second ground was held to be not attracted under Section 11(1)(c).
18. Generally, for opening up of a passage may not be construed as a bonafide necessity under Section 11(1)(c) of the Act but if the dire necessity is there having no ingress and outgress of the landlord to enjoy his own residential premises then in that case in my view the opening of passage for taking tenanted premises comes within the purview of Section 11(1)(c). But in the present case, I have already held that dire necessity from the side of the plaintiff could not be proved as much as that the plaintiff has no passage to go to his residential premises could not be proved. In that view of the matter, the eviction decree granted cannot be held to be valid in the facts and circumstances of the case. Moreso, from the circumstances, it could be found that there was previous litigation between the parties and in that litigation between the parties there was also an undertaking from the side of the plaintiff to the defendant not to disturb defendant's possession. But still the plaintiff is attempting to disturb defendant's possession on the plea of passage on the basis of partition which did not clarify that plaintiff cannot use the common passage as the same is in exclusive possession of the elder brother.
19. The Revision petition is thus allowed and the eviction decree is hereby set aside.