Patna High Court
Ram Anugrah Narayan Singh vs Shishir Kumar Das on 15 September, 2010
Author: Ravi Ranjan
Bench: Ravi Ranjan
CIVIL REVISION No.661 OF 2006
(Against the order dated 23.1.2006 passed by
Munsif I, Gaya in Eviction Suit No. 36/1994)
RAM ANUGRAH NARAYAN SINGH, Son of Shiv Dayal Singh, Resident of
Mohalla 171 Tel Bigha Rangbahadur Road, Choudhary Gali, P.S. Kotwali,
District Gaya
------------------------------------ Defendant /Petitioner
Versus
1. SHISHIR KUMAR DAS
2. Amir Kumar Das
3. Parveer Kumar
4. Samir Kumar Das
5. Swapan Kumar Das
All sons of late Shyama Charan Das, all residents of Mohalla Telbigha,
Rang Bahadur Raod, Chaudhri Gali, P.S. Kotwali, District Gaya
6. Smt. Kum Kum Kumari wife of Sri Tusar Mazumdar, daughter of late
Shayama Chaan Das, resident of 317 Purwasynthee Lane Flat No. H,
Dad Dam, Kolkata - 301
7. Smt. Sobha Das wife of Sri Udaya Narayan daughter of late Shyayama
Charan Das, C/o Lallan Narayan Near Bhurkhunda Class Factory,
Ramgarh, Jharkhand
------------------------------------------Plaintiffs / Opposite Parties
For the Petitioner : Mr. S.S. Dvivedi, Sr. Advocate
For the O.Ps. : Mr. Chitragupta Prasad, Advocate
PRESENT
THE HON'BLE MR. JUSTICE DR. RAVI RANJAN Dr. Ravi Ranjan J: This Civil Revision, filed under section 14(8) of the Bihar Buildings (Lease, Rent and 2 Eviction) Control Act, 1982 (hereinafter to be referred to as "the Act") is directed against the order dated 23.1.2006 passed by the Munsif 1st , Gaya in Eviction Suit No. 36/1994, whereby and whereunder the defendant-petitioner has been directed to vacate the suit premises and hand over the vacant possession to the plaintiffs-opposite parties.
Bereft of details, short facts necessary for consideration of this case, are as under:
The original plaintiff, Parwati Devi (since dead) had filed the suit against defendant- petitioner for eviction from the suit premises described in Schedule II of the plaint. It has been stated in the plaint that the husband of the original plaintiff, Parwati Devi (since dead), purchased the holding No. 155 (old), 171(new) Ward No. 1(old)/4(new), Mohalla Telbgha Ragbahadur Road, District Gaya and the husband of the original plaintiff subsequently died leaving behind 5 sons and 2 daughters. It is stated in the plaint that though the two sons out of five are living out of Gaya, but they used 3 to visit Gaya off and on. Two daughters have already been married and are living with their in-laws. Three sons, namely, Amar Kumar Das, Swapan Kumar Das and Shishir Kumar Das, are living with the original plaintiff, out of whom Amar Kumar Das and Shishir Kumar Das are married, whereas Swapan Kumar Das is unmarried. Further case of the plaintiff is that her two sons, namely, Shishir Kumar Das and Praveer Kumar Das purchased a residential house in the vicinity of holding in question as described in Schedule II of the plaint. The original plaintiff due to paucity of fund and for the purpose of livelihood had inducted the defendant as tenant in three rooms, kitchen, bathroom on the ground floor of Schedule II of the plaint. However, subsequently, she was facing difficulty in living with her unemployed son in the holding, which is in the name of Shishir Kumar Das and Praveer Kumar Das due to increase of the number of the family members as Shishir Kumar Das having married last year started living with his wife. In that holding there are only three rooms, which are 4 not sufficient to accommodate all the family members. Further case of the plaintiff is that initially she tried to make construction in a portion of the holding no. 169 on the first floor. However, the estimated expenditure was more than one lac, which the plaintiff was not in position to spend being a widow and poor lady living with two unemployed sons. The original plaintiff, thus, requested the defendant to deliver the vacant possession of the Schedule II premises, which she requires reasonably in good faith for her own accommodation as her present accommodation was insufficient to accommodate the plaintiff and her family members including her unemployed sons. It is also stated that the plaintiff getting no way-out for the time being, decided to construct one room, latrine and bathroom on the first floor of the building, which is in occupation of the defendant as tenant and materials were collected for such construction. However, to utter surprise, the defendant did not allow the labourers to go on the first floor for 5 making construction. For that purpose, it is stated, the plaintiff filed Title Suit No. 17 of 1994 before the Munsif 1st, Gaya, for decree of permanent injunction against the defendant. Thus, under the compelling circumstances the present suit for eviction of the defendant on the ground of requirement of the suit premises reasonably in good faith for her occupation along with her family members was filed. The original plaintiff died during the pendency of the suit and her legal representatives were substituted.
The defendant-petitioner appeared and contested the suit by filing written statement. It has been stated that the plaintiff is in habit of filing several suits and cases for evicting the defendant only with a purpose to avoid the legal obligation and her duty to perform the part of the contract. It is stated that a deed of agreement for sale was executed in favour of the defendant on 17.12.1993. It is also stated that the plaintiff has suppressed the factum of the second marriage of her husband with Perima Devi and, in fact, Shishir Kumar Das and 6 Sunil Kumar Das and two daughters, namely, Sobha Devi and Poonam Devi @ Kumkum are from the second wife of the husband of the plaintiff. The concealment of this fact and even filing of the present eviction suit are only to avoid the negotiation and legal duties to perform the part of contract as per the terms and conditions laid down in the aforesaid agreement for sale dated 17.12.1993. Thus, it is stated that after execution of the aforesaid agreement for sale dated 17.12.1993, the plaintiff has no right to evict the defendant on the ground of personal necessity as the original plaintiff has not fully discharged the duty of performance of contract as part of the consideration amount, i.e., Rs. 15000/- out of a total of Rs. 1,95,000/-, has already been paid. It is stated that the aforesaid deed of agreement for sale was stolen during travel and for which a sanha had been lodged, thus, the same could not be produced.
The trial court on the basis of the pleadings of the parties has framed seven issues. The 7 main issues being as to whether the plaintiff requires the suit premises reasonably in good faith ? The plaintiffs produced seven witnesses. On the other hand, the defendant has examined twenty-one witnesses. The trial court upon consideration of the materials on record and scrutiny of the evidence led on behalf of the parties has come to the conclusion that the plaintiffs have been able to prove their requirement of the suit premises reasonably and in good faith. The trial court has also come to the conclusion that necessity of plaintiffs would not be satisfied by the partial eviction of the suit premises. Thus, the defendant has been ordered to vacate the suit premises and hand over the same to the plaintiffs.
I have heard the parties and perused the records of this case.
Learned counsel appearing for the defendant - petitioner submitted that the whole
purpose of filing this eviction suit was only to avoid 8 the obligation and legal duties of the plaintiffs to perform their part of contract as per the terms and conditions of deed of agreement for sale dated 17.12.1993 executed by them for sale of the suit premises in favour of the defendant for total consideration amount of Rs. 1,95,000/- out of which Rs. 15,000/- had already been paid in cash. It had further been submitted that the defendant was ready to perform his part of contract but the plaintiff was evading performance of contract on their part and had filed this eviction suit. Learned counsel submitted that, in lieu of such agreement and part payment of consideration money, possession of entire property was delivered to the defendant and as such, he did not remain to be a tenant after 17.12.1993, i.e., the date of the aforesaid agreement for sale. In paragraph no. 13 of the written statement, the defendant has stated that in another suit filed by the plaintiff, the defendant has filed written statement stating therein that the original deed of agreement for sale along with some other 9 documents, which were kept in the briefcase, were stolen in 1994 when the defendant was traveling by Doon Express and a sanha in this regard was lodged.
The second contention of learned counsel was that since the suit was filed by the original plaintiff for her personal requirement of the suit premises reasonably and in good faith, however, after her death, during the pendency of the suit, her legal representatives though were substituted but the plaint has not been amended accordingly to show that the requirement of premises for personal use of the plaintiffs still exists and the premises was also required reasonably and in good faith by her legal representatives. Learned counsel contended that in such circumstances, the suit, which was filed for personal necessity of the original plaintiff, was bound to fail. Lastly, the learned counsel submitted that the issue regarding partial eviction was not framed and such issue has not been considered by the court below in proper perspective as per the mandate to proviso of Section 11(1) (C) of the Act.
10
On the other hand, learned counsel appearing on behalf of the plaintiffs - opposite parties submitted that there had been no serious challenge by the defendant to the bona fide claim of the plaintiffs regarding personal necessity of the suit premises reasonably and in good faith. The whole case of the defendant revolved around a fictitious deed of agreement, which had never been brought on record by him nor had any cogent evidence been adduced in this regard. That apart, it had been submitted that such issue regarding the performance of contract could not be decided in a suit for eviction. Thus, the plaintiffs have been able to prove their bona fide requirement of the premises concerned, as the witnesses examined on their behalf have stood the test of cross-examination. So far the issue of personal necessity after the death of original plaintiff is concerned, it had been urged that the original plaintiff had brought the eviction suit on the ground that she required the same reasonably and in good faith for occupation of the original plaintiff herself and also 11 for her two unemployed sons, which would be evident from the statement made in paragraph no. 7 of the plaint. It is stated therein that the plaintiff, being the widow and poor lady living with two unemployed sons is unable to spend Rs. one lac for construction so that the plaintiff with two unemployed sons and one unmarried son could live in the suit premises. Thus, it is clear that the suit premises was required not only for accommodation of the lady herself but also for residential purpose of her family members including her three sons out of whom two were unemployed.
In that view of the matter, it was contended that there was no requirement of
amendment of the plaint as the requirement of her sons already stands described in the plaint. It was also submitted that the trial court, though has not framed the issue of partial eviction separately, has considered this aspect and recorded a finding that no reasonable purpose would be served by partial eviction of the defendant. It has noticed that the plaintiffs in course 12 of their cross-examination have stated to that effect and they have not been cross-examined by the defendant on this point.
Upon consideration of rival submissions, this Court does not find any substance in the contention raised on behalf of the defendant - petitioner regarding personal necessity of suit premises in good faith by the plaintiffs - opposite parties. The original plaintiff had clearly narrated about the requirement of the suit premises in the several paragraphs of the plaint, which is to be read in its entirety. Though, the statement made in paragraph no. 14 of the plaint is that the plaintiff needs the premises for her own occupation and is entitled to get a decree of eviction on the ground of personal necessity, however, it does not mean that the same was required only for her own residence as in several paragraph she has stated in the plaint (specially in paragraph nos. 5 to 7) that she along with the family including her two unemployed sons are living there and requires the premises as another 13 premise purchased by her sons Shishir Kumar Das and Praveer Kumar Das is having only three rooms, whereas Shishir Kumar Das has got married and his wife is also residing with him. In that circumstance, since there is increase in the family members it has become difficult for the original plaintiff and her other sons specially two unemployed sons to reside therein, thus, the suit premises is required reasonably and in good faith. Thus, on careful reading of the plaint as a whole, it appears that the case of original plaintiff is that the suit premises is reasonably required for residential purpose of the plaintiff herself and her family members including the two unemployed sons. Thus, even though no further amendment in the plaint has been made by the plaintiffs, after their substitution in place of their deceased mother, it cannot be held to be such infirmity for which eviction suit should be dismissed. That apart, after the death of the original plaintiff, the defendant has also not brought any amendment in his written statement stating that after the death of 14 original plaintiff the ground of requirement of the suit premises has vanished and, thus, this submission raised on behalf of the defendant- petitioner is noted to be rejected. From the scrutiny of the deposition of the witnesses examined on behalf of the parties, the trial court has correctly come to the conclusion that except the defendant himself none of the defendant witnesses had seriously denied the bona fide requirement of suit premises by the plaintiffs for their personal use and so far the question on issue of deed of agreement is concerned, apart from the fact that the such agreement for sale has not been brought on record, it appears that even though that omission has been explained in the written statement by bringing out a story of theft of the documents, the defendant witnesses have not been found to be trust-worthy for proving the factum of such agreement. That apart, such issue cannot be decided in a suit for eviction brought by the original plaintiff for eviction on the ground of personal necessity. Thus, in the opinion of this Court the 15 relationship of landlord and tenant in between the parties stands proved.
In the facts and circumstances of the case, this Court does not find any error in the
findings recorded by the trial court. The fact is that the suit premises is required by the plaintiffs reasonably and in good faith for their personal use.
However, so far as the question of partial eviction is concerned, it is by now well settled that duty is cast upon the court to consider the case of partial eviction even if such plea was not taken by the tenant and the court has to consider the question of adequacy of the partial eviction by considering the dimension etc. of the suit premises along with the evidence led on behalf of the parties. The question has to be considered objectively and not on the basis of mere desire or ipse dixit of the landlord to occupy such area as he wants. It is a fact that the plaintiffs in their evidence have stated that no purpose would be served by partial eviction but the Court should have satisfied itself regarding the fact as to whether such 16 requirement would be fulfilled by partial eviction or not. The court below has not recorded any finding with regard to the adequacy of the suit premises for the purpose of the plaintiffs after partial eviction of the tenant.
In view of above facts and circumstances, the matter is remitted back to the trial court to decide the issue of partial eviction in accordance with law. However, all other findings recorded by the court below including one with regard to requirement of the suit premises by the plaintiffs have not been disturbed and are kept intact. Since this is a suit for eviction on the ground of personal necessity, the case requires disposal with utmost expedition. Accordingly, I direct court below to decide the aforesaid issue within four months from the date of receipt of the lower court records and a copy of this order. It is further made clear that if the defendant-petitioner creates any hindrance in disposal within the aforesaid time fixed by this Court, then the court below will dispose o the suit on the materials brought on record 17 by the plaintiffs.
With the aforesaid observations and
directions this civil revision is allowed in part.
However, there will be no order as to costs.
( Dr. Ravi Ranjan, J.) The Patna High Court The 15th September, 2010 Spd/- N.A.F.R.