Patna High Court
Md. Jahangir vs Smt. Kirti Devi on 9 October, 2001
Equivalent citations: 2001(3)BLJR2204
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb
JUDGMENT Prasun Kumar Deb, J.
1. This revision petition has been preferred under Section 14(8) of the Bihar Buildings (Lease Rent and Eviction Control) Act, 1960 against the judgment and decree dated 28-2-2001 passed by the Munsif, IInd, Bhagalpur in Title Eviction Suit No. 1 of 1996. The plaintiff Opposite party's case is that she had purchased the suit holding from Prabhat Chandra Mishra through registered sale deed dated 23-8-1995/24-8-1995 and her name has been recorded in Bhagalpur Municipality on the basis of her possession and she got her name mutated in the Shirista of State of Bihar and was granted receipts on payment of rent. Admittedly the defendant-petitioner is a tenant in the suit premises on the basis of monthly rental of Rs. 250 on the basis of a Kiryanama dated 5-7-1986 which has been marked as Exhibit D executed by the exiandlord the Prabhat Chandra Mishra in favour of the petitioner. According to the plaintiff he purchased the suit property to settle her handicapped and unemployed son Binod Kumar Poddar by starting a Medicine Shop and, as such, suit premises is badly required by the plaintiff for bonafide personal necessity in good faith. Hence, the suit was filed. According to the defendant he was a monthly tenant in the suit premises but as soon as an agreement for sale with Prabhat Chandra Mishra was made on 10-6-1995/19-6-1995 then the tenancy of the plaintiff had merged into his apparent ownership of the suit property being in possession and hence, the suit is not maintainable under the B.B.C. Act. The contention of the plaintiff regarding personal necessity as also been challenged tooth and nail. The defendant has also filed the suit for specific performance on the basis of agreement of sale against Prabhat Chandra Mishra in which the plaintiff has also intervened and the said suit is proceeded. The defendant has also claimed to have not carried out the terms and conditions as per the lease/Kiryanama between the defendant and the landlord Prabhat Chandra Mishra and in that way also the suit is bad. Another contention was raised to the effect that the defendant-tenant has never been attorned to the Plaintiff on her purchase and hence the eviction suit is not maintainable.
2. Both the parties adduced oral and documentary evidence. Learned Court below framed the following issues on the pleadings of the parties:
1. Is the suit, as framed maintainable?
2. Has the plaintiff got cause of action for the suit?
3. Whether there is relationship of landlord and tenant between the plaintiff and the defendant?
4. Whether the plaintiff requires the suit premises for her use and occupation reasonably and in good faith?
5. Is the plaintiff entitled to decree as prayed for?
6. To what relief or reliefs, if any, is the plaintiff entitled?
3. On consideration of the evidence adduced by the parties both oral or documentary the Court below held that the suit is maintainable in its present form and that the relationship of landlord and tenant exists between the plaintiff and the defendant and that the plaintiff has got requirement of the suit premises for settling her handicapped and unemployed son by setting up a Medical shop and then decreed the suit by the impugned judgment.
4. Mr. Ganpati Trivedi, learned Counsel appearing for and on behalf of the defendant-petitioner has raised the maintainability of the suit on the ground that as soon as it could be proved from the side of the defendant that he had an earlier agreement regarding the purchase of the suit property and a huge amount has been advanced towards earnest money then the purchaser of the suit property is not in a position to evict the tenant. According to him the tenancy has been merged as soon as the agreement of sale has been entered into such tenancy had merged with his apparent heirs. In support of his contention he has referred to a recent judgment of the Apex Court as reported in (2000) 9 SCC 339 (R. Kanthimathi and Anr. v. Beatrice Xavier (Mrs.). That was the case under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. But the facts and circumstances of that case is totally different. Under the T. N. Rent Act on grounds of wilful default in payment of rent and commission of an act of waste is a ground of eviction and it was held that when in such circumstances an agreement of sale has been arrived at between the tenant and the landlord then for wilful default on payment of rent cannot be a ground for eviction. In that circumstances of the case the wilful default and a commission of an act of waste as contemplated under the T.N. Buildings Act had been given consideration of and it was held that on the ground of defaulter in that circumstances eviction suit was not maintainable as on default being made and of consideration thereof the agreement of sale was being entered into. But here in the present case the suit is not on the ground of defaulter but of personal necessity. The Clause of wilful default or of a commission of waste is not there under the B.B.C. Act and this Court has consistently held that only because there is a plea from the side of the tenant that an agreement of sale was entered into between the landlord and himself the same does not take away the right of eviction on the ground as contemplated under Section 11 of the B.B.C. Act. It is the settled principle of law that by entering into an agreement of purchase a person cannot become an owner apparent and till the sale-deed is executed in his favour it does not become ownership and, as such, the question of merger of tenancy with the ownership does not arise at all. Thus I do not find that the learned Court below has committed any error in holding that the suit is maintainable. Regarding non-fulfillment of the terms of the Kiryanama Ext. D cannot be ground. Such Kiryanama is not a legal document and the same is not a registered one although the same entered into between the parties for a term of ten years. The Kiryanama executed by the tenant or by the landlord in favour of the tenant can be admissible only for collateral purposes to the effect that the relationship of the landlord and tenant exists on a monthly rental. Other terms and conditions are not implementable if such Kiryanama or the lease is not a registered deed. This point has been fairly conceded by Mr. Trivedi appearing for and on behalf of the petitioner. Regarding the personal necessity no argument has been placed by Mr. Trivedi and practically he had no scope to argue on such factual aspect as the leaned trial Court has considered the matter of personal necessity at length by referring to the evidence adduced by the parties. Mr. Mazumdar, Senior Counsel appearing for and on behalf of the plaintiff-Opposite party has argued that the plaintiff has purchased the suit property only for the purpose of settling his handicapped and unemployed son by opening up of a medical shop. So the intention of the plaintiff-petitioner is clear from the very day of purchasing the suit property. The handicapped son has also adduced evidence and it could be proved by cogent evidence that the personal necessity as pleaded from the side of the plaintiff could be proved as real, bona fide and not an imaginary one. Hence, the learned Court below had decided the issue of personal necessity in favour of the plaintiff-Opposite party.
5. The other point raised regarding attornment it has already become settled that the if the properties have been purchased from the landlord and a notice has been given to the tenant then the relationship is being legally established as landlord and tenant between the tenant and the purchaser. Here in this case also it could be proved from the side of the plaintiff that after purchase notice was sent to the tenant and practically by legal implication the relationship has been established between the landlord and the purchaser landlord.
6. The last point that has been raised from the side of Mr. Trivedi has got some force. It is his contention that in the eviction suit the duty is cast by the Act itself upon the Court to adjudicate whether the personal necessity as envisaged from the side of the landlord could be satisfied by partial eviction or not but that issue has neither been framed nor been adjudicated by the learned Court below. Mr. Mazumdar submitted by referring to a single line of the judgment to the effect that the landlord has stated in her evidence that whole of the suit premises is necessary for the purpose of opening up of a medical shop suffices the need of deciding the partial eviction. It has rightly been pointed out by Mr. Trivedi that such stray statement in the judgment does not suffice the necessity of deciding the issue of partial eviction. It has further been submitted by Mr. Mazumdar that the suit premises is a small one and question does not arise of partial eviction because by partial accommodation in the suit premises can never be construed to be sufficient for the purpose of opening up of a medicine shop. Only of smallness of the suit premises does not mean to give away the adjudication regarding personal necessity. Even in a business market complex a very small shop having one and two cubits width opening may be construed to be sufficient for the purpose of doing business even though the same depends upon the circumstances of each particular case. However the tenant had not been given that opportunity to adduce evidence regarding partial eviction. The question of taking of plea of partial eviction in the written statement does not arise because such issue comes to play at the decision at by the adjudicating Court that the person exists and the eviction can be done on the ground of personal necessity. In that way when such decision is not arrived at the learned Court below, I am constrained to send the case back on remand for the purpose of deciding that issue holding that the decision in the other issue by the learned Court below are proper, just and hence upheld.
7. The revision petition is allowed to a limited extent by setting aside the eviction decree and remitting the case back to the learned lower Court to frame an issue on partial eviction and then give opportunity to both the parties to adduce further evidence on that issue alone and then decide the question of eviction as a whole or in part. Such process should be completed preferably within three months next from the date of the receipt of a copy of this order bys the learned Court below. Sent down I.C.R. immediately.