Patna High Court
Ekbal Hussain vs Binod Kumar Barnwal on 7 October, 2010
Author: Ravi Ranjan
Bench: Ravi Ranjan
CIVIL REVISION No.2011 OF 2009
(Against the judgment and order dated 9.10.2009 passed by
Civil Judge, Junior Division, 1st, Siwan in Eviction Suit No. 4 of
2009)
EKBAL HUSSAIN, Son of Late Shashid Ahmad, resident of village
Mohaddipur, P.S. Siwan (Muffasil, District Siwan,
....Defendant .. Petitioner
Versus
BINOD KUMAR BARNWAL, Son of late Babu Rameshwar Prasad, Resident
of village Gauri Market, P.S. Siwan (Nagar), District - Siwan
..... Plaintiff .... Opposite Party
For the Petitioner : Mr. Ram Chandra Sahni, Advocate
For the O.Ps. : Mr. Ranjan Kumar Dubey, Advocate
PRESENT
THE HON'BLE DR. JUSTICE RAVI RANJAN
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Dr. Ravi Ranjan, J.This Civil Revision, has been preferred against part of the order dated 9.10.2009 passed by the Civil Judge, Junior Division Ist, Siwan, in connection with Eviction Suit No. 4 of 2009, whereby and whereunder the suit was decreed in favour of the plaintiff - opposite party and the defendant - petitioner was ordered to be evicted the premises within 30 days.
Shorn of details, short facts necessary for consideration of the controversy in issue, are as under:
The plaintiff has brought the Eviction 2 Suit No. 4 of 2009 for eviction of the defendant - petitioner from the suit property which stands fully described in Schedule „Ka‟ of the plaint, which is a shop of an area of 6 feet x 12 feet appertaining to Ward No. 8(new), Holding no. 125(New). It has been stated in the plaint that the defendant - petitioner was inducted as tenant by the mother of the plaintiff on payment of monthly rent of Rs. 485/- per month on 1.11.1989 for 11 months. However, the defendant continued to remain as a tenant on payment of enhanced rent of Rs. 700/- per month, which was being paid to the plaintiff. Plaintiff has stated that one of the conditions of the tenancy was that if during the period of such tenancy, the properties of the joint family of the plaintiff are partitioned then the family member to whom the shop would be allotted in such partition would be deemed to be the landlord. Further case of the plaintiff is that in the month of May 2008 the properties of the joint family was partitioned in Partition Case No. 181 of 2008 and the plaintiff was allotted the disputed shop and he became its landlord.
It has been stated by the plaintiff that the plaintiff has 3 only been allotted the concerned shop and in another shop he has been given "sahan". The shop is in dilapidated condition and the plaintiff wants to get it renovated and use it for maintenance of his family which includes two minor children and the plaintiff‟s wife. Thus, the plaintiff has come up with the case that for earning the livelihood of the family, after partition of the joint family, he bona fide requires the suit premises for doing business. The plaintiff approached the defendant for vacating the suit premises who assured to do it within two months. However, on one pretext or other he has deferred the matter and lastly in February, 2009 when he refused to vacate the premises then a legal notice was served upon him, which was answered by the defendant challenging the ownership of the plaintiff and refusal to vacate. Thus, in above view of the matter the plaintiff was compelled to file the present eviction suit for eviction of the defendant and also for payment of rent etc. till the disposal of the suit.
The defendant-petitioner appeared and contested the suit by filing written statement. The 4 relationship of the landlord and tenant between the plaintiff and defendant was denied on the pretext that the shop concerned belonged to the grandmother of the plaintiff and he used to pay rent to her only and the plaintiff was merely an agent of his grandmother, however, the suit has been filed by him as a landlord. The defendant stated that on 1.11.1989, on the basis of a written agreement, he was inducted as tenant by the grandmother of the plaintiff, namely, Gauri Devi and at that time he has also paid Rs. 2,50,000/- as a security to the landlord Gauri Devi. He has stated that he has paid the enhanced rent of Rs. 700/- per month to the landlord Gauri Devi. The defendant has also refuted the claim of the plaintiff that in Partition Case No. 181 of 2008 there has been any partition in his joint family by metes and bounds and the shop has been allotted to him and has stated that the entire story of partition has only been set up with a view to grab the security money as aforesaid, which was paid by the defendant to the landlord Gauri Devi. It has also been stated that plaintiff is the owner of another shop in the name and style of "Roop Kala" and, thus, he does not 5 have any bona fide personal necessity of the suit premises as the aforesaid shop is sufficient for earning his livelihood. Defendant has further stated that in the market complex, which is known as Gauri Market, there are ten shops belonging to Gauri Devi out of which three has been rented to the tenants and seven shops are in the occupation of the landlord, Gauri Devi, herself. Further statement is that defendant does not have any other source of livelihood and if he is evicted from the shop he would be facing constraints in maintaining his family.
The trial court on the basis of the pleadings of the parties has framed six issues. The main issue being 3 and 5 with regard to the landlord tenant relationship as well as regarding bona fide personal requirement of the suit premises by the plaintiff. Upon consideration of materials on record including the evidence led on behalf of the parties and consideration of the materials on record and scrutiny of the evidence led on behalf of the parties the court below has come to the conclusion that there is landlord tenant relationship between the plaintiff and 6 the defendant and the plaintiff bona fide requires the suit premises for his personal use, i.e., to use the same for doing business to earn bread for his family. Though a separate issue with regard to partial eviction has not been framed, however, such issue has also been considered by the court below and a finding has been recorded that the width of the shop being six feet only, the partial eviction would not be possible for satisfying the needs of the plaintiff as well as the defendant. The defendant was also directed to pay the rents from the date of filing of the suit till its disposal. However, it appears that the aforesaid part of the order has not been challenged by the petitioner as this civil revision has only been preferred against the part of the impugned order, whereby he has been directed to vacate the suit premises.
I have heard the parties and perused the records of this case
Learned counsel appearing for the petitioner submitted that the story of partition between the family members of the plaintiff and the suit property was allotted to the plaintiff is merely an eye wash. It is 7 submitted that the whole story has been set up only for the purpose of evicting the defendant - petitioner from the suit premises and with a view to grab the security money of Rs. Two lacs fifty thousand which was given by the petitioner to the landlord Gauri Devi. Learned counsel submitted that the petitioner was tenant of Gauri Devi and in that view of the matter the plaintiff did not have any right to evict the petitioner in the absence of any landlord tenant relationship. Learned counsel further submitted that even if the story of partition through the Lok Adalat is assumed to be true in that case also it is manifest from the Ext. 2, i.e., the compromise arrived at between the parties, that the petitioner along with his brother Saroj Kumar Baranwal was also allotted a shop in the name and style of "Roop Kala". That apart it is also stated therein that their mother Gauri Devi would live along with Saroj Kumar Barnwal and the plaintiff Binod Kumar Barwal, who would look after her and they would enjoy the property, which has been allotted to mother Gauri Devi till her life time. After her death the property would be allotted in equal share to the three brothers, 8 who were petitioner nos. 1 , 2 and 3 ( including the plaintiff herein) in that case.
In above view of the matter, it is submitted that plaintiff has much of other options also wherefrom his requirement of earning livelihood for his family members could be satisfied . Thus, it is contended that the plaintiff could not prove his bona fide requirement of the suit premises. It has also been contended that the shop being the sole source of earning livelihood of the defendant, it would be very harsh upon him and his family members if he is evicted. Learned counsel lastly submitted that plaintiff has stated in his plaint that the suit property is the only shop which has been given to him is old construction in dilapidated condition, thus, the plaintiff needs to reconstruct the same for its better use and setting up of his business. However, no evidence has been led on his behalf requirement of either on point of reconstruction or even that the plaintiff has enough resources for such reconstruction. Learned counsel for the petitioner has placed reliance upon a decision of the Apex Court in Vijay Singh & 9 ors. V. Vijayalakshmi Ammal reported in (1996) 6 SCC 475 to show that while deciding the question as to whether the demolition of the existing building is needed or not, the Court has to consider the age and condition of building, whether the building is actually in dilapidated condition requiring its immediate demolition and reconstruction, and also the financial condition of the landlord for the demolition of the construction and its renovation. It is submitted that having not been done so by the Court, the impugned order is fit to be set aside.
On the other hand learned counsel appearing on behalf of the plaintiff - opposite party submitted that there was partition by metes and bounds and all the parties have filed a compromise petition before Lok Adalat and the same has been accepted.
It is well settled that the tenant cannot question the partition in the family of the landlord or the ownership of the landlord. The family members of the petitioner has not challenged the factum of partition by reaching of compromise and all the parties are in possession of their respective shares. It is true 10 that the plaintiff was inducted prior to partition but the moment there has been partition in the family and the shop has been allotted to the plaintiff, which has been supported by evidence led on behalf of the plaintiff, oral and documentary both, the tenant is not in a position to challenge the same. The brother of the plaintiff Saroj Kumar Barnwal also who has been examined as a witness being P.W. 3, has supported the factum of partition by metes and bounds after arriving to compromise through the Lok Adalat in a pre-litigation case No. 181 of 2008. He has also accepted that the suit property has been allotted in the share of the plaintiff and in another shop "sahan" has been allotted to him. Ext. 2 is the compromise petition, which has been exhibited by the parties before the Lok Adalat. Learned counsel submitted that at one place the petitioner refutes the partition by means of compromise in a pre-litigation case before the Lok Adalat, whereas at the same time he also placed reliance upon certain paragraphs of the compromise petition. It is submitted that the aforesaid act of the petitioner itself goes to show that he was 11 aware about the compromise between the family members of the plaintiff and thus, he cannot be allowed to deny the compromise at one hand and take advantage of certain statements made in a compromise petition on the other hand. Learned counsel submitted that it is true that "Roop Kala" along with Matching Centre has been allotted to the petitioner along with his brother Saroj Kumar Baranwal but in the compromise petition itself it is clearly stated that the aforesaid shop has given to the plaintiff and the brother for marriage of their daughters as marriage of one of the brother‟s daughter has been performed earlier from joint family fund. Thus, it was a family arrangement. Learned counsel has placed reliance upon a decision of the Apex Court rendered in Sait Nagjee Purushotham & Co. Ltd. V. Vimalabai Prabhulal [(2005) 8 SCC 252] to impress upon this Court that even requirement of extending business also could be taken into account for eviction of tenant. I find force in the submissions made on behalf of the plaintiff - opposite party.
The trial court upon consideration of materials 12 including the evidence led on behalf of the parties, both documentary and oral, has come to the conclusion that the compromise in the family, even arrived at before Lok Adalat in a pre-litigation case, would be sufficient to prove that the plaintiff has become the landlord of the suit property as the parties, thereafter, have come into the possession of their respective share. The factum of partition has also been supported by P.W. 3 Saroj Kumar Baranwal, who is brother of the plaintiff. Thus, the defendant - petitioner was not in a position to controvert the same. So far the issue of reasonable requirement of the plaintiff is concerned, it is true that the plaintiff and his brother Saroj Kumar Baranwal have been given earning from the "Roop Kala" shop also but that has specifically been given for the marriage of their daughter by way of family arrangement. Thus, that would not mean that plaintiff would be in a position to utilize for the same for maintenance of his family. It is also manifest from the compromise petition that earning from the mother‟ share has also given to the Saroj Kumar Barnwal and the plaintiff Binod Kumar Barnwal. 13
However, the same has been given for the maintenance of the mother herself. The plaintiff has stated that he needs the shop for establishing business therein for the purpose of earning livelihood for the family consisting of his children as well as spouse as he has remained unemployed for long and after partition in the family he would have to earn bread independently. So far the question of the reconstruction of house on account of its being old and dilapidated is concerned the same stands as stated in paragraph no. 7 of the plaint. However, there is no specific denial by the defendant that the house is not in a dilapidated condition, though it is denied to be an old house and the plaintiff intends to reconstruct the same in written statement. It is not specifically stated in his written statement that the plaintiff does not have sufficient means for reconstruction of the concerned shop. A Division Bench of Patna High Court in Punit Rai v. Mohd. Majid reported in AIR 1964 Patna 348 has held that in the absence of specific denial of the averments of the plaint, the same must be assumed to be admitted by the defendant. Thus, this Court is also 14 of the opinion that no error has been committed by the court below in holding that there is landlord and tenant relationship between the parties and the plaintiff is in reasonable need of the concerned shop. The endeavour of the defendant to refute and deny the partition in the family through a pre-litigation case and at the same time also relying upon certain paragraphs of the compromise petition filed therein is also not acceptable. The Court below has also dealt with the issue as to whether the requirement of plaintiff could be fulfilled by partial eviction of the suit property so that the tenant is also not disturbed. It has noticed that the defendant himself has stated that shop is very small and not fit for being business. The court below has come to the conclusion that shop in question, being only 6 feet in width, if divided in equal half, would not be useful for any of the parties for doing business.
I do not find any error in such finding recorded by the court below also. Thus, this Court is of the opinion that the defendant - petitioner could not point out any error in the order impugned warranting 15 interference of this Court in its revisional jurisdiction.
As a result, this civil revision fails and is, accordingly, dismissed.
However, there shall be no order as to costs. The Patna High Court ( Dr. Ravi Ranjan, J.) The 7th October, 2010 Spd/NAFR