Patna High Court
Dina Nath Gupta & Ors vs Ganesh Pd. Mahto on 30 July, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.85 of 2011
Against the Judgment and Decree dated 13.12.2010 passed by Addl.
District Judge, Fast Track Court V, Samastipur in Title Appeal
(Eviction) No.01 of 2005 reversing the Judgment and Decree of the
trial Court dated 18.12.2004 passed by Sub Judge VI, Samastipur in
Eviction Suit No.5 of 2002.
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Dina Nath Gupta & Ors
.................Defendants-respondents-Appellant/s
Versus
Ganesh Pd. Mahto
.................Plaintiff-appellant-Respondent/s
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Appearance :
For the Appellant/s : Mr. S. S. Dwivedi, Sr. Advocate,
Mr. Waliur Rehman, Advocate,
For the Respondent/s : Mr. Jitendra Kishore Verma, Advocate.
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Dated : 30thday of July, 2013
PRESENT
CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO CAV J U D G M E N T
1. The original appellant Vidyanath Prasad Gupta had filed this Second Appeal against the Judgment and Decree dated 13.12.2010 passed by the learned Addl. District Judge, Fast Track Court No.5, Samastipur in Title Appeal (Eviction) No.1 of 2005 whereby the learned lower appellate Court allowed the appeal and reversed the Judgment ad Decree dated 18.12.2004 passed by the learned Sub Judge Vi, Samastipur in Eviction SuitNo.5 of 2002.
2. The plaintiff respondent filed the aforesaid suit praying for eviction of the defendant from the suit premises on the ground of personal necessity. 2 Patna High Court SA No.85 of 2011 dt.30-07-2013 2 / 19 The original appellant before this Court was Vidyanath Prasad Gupta. It may be mentioned here that during the pendency of this Second Appeal, the sole original defendant appellant died and legal representatives have been substituted as appellants. The plaintiffs sought the relief of eviction on the ground of personal necessity alleging that the defendant is a tenant for a long time on a monthly rent of Rs.800/- which was increased to Rs.16,00/- per month and thereafter the defendant stopped payment of rent from Ist of May, 2002. The plaintiff always granted receipt after receiving the rent. The defendant was paying rent sometimes by himself and some times through his son. The plaintiff is poor and used to sell kerosene oil on Thela. Now, it is difficult to maintain the family on the income of sell of kerosene oil. His son Sonu Kumar had become adult and sitting idle. Therefore, the suit premises is required for use and occupation of the son and father in which they want to start a small business.
3. The original defendant appeared and filed application for leave to contest and thereafter filed the written statement alleging that the plaintiff is not the owner of the suit property. The suit property has been purchased by Dinanath Gupta who is son of original defendant from the sister of the plaintiff. Therefore, the disputed and complicated question of title cannot be decided in this eviction suit. Therefore, the suit itself is not maintainable. There is no relationship of landlord and tenant between the parties. The suit property measuring 5 dhur 2.5 kanwa is in possession of the son of the defendant wherein Sri Ram Machinery Firm is running. In such circumstances unless the son Dinanath Gupta is made party the suit is not maintainable. The rent receipts produced which are after 01.10.2000 till 1 st May, 2002 are forged and there is no signature of the son of the defendant on the said rent receipts. Since April, 1982, the son of the defendant 3 Patna High Court SA No.85 of 2011 dt.30-07-2013 3 / 19 namely, Dinanath Gupta is paying rent but the rent receipt was granted in the name of the original defendant as usual. The son of the defendant is the only proprietor of Sri Ram Machinery, therefore, the defendant is not the tenant in the suit premises. The defendant was residing earlier in the suit premises as tenant with his family but subsequently he constructed his house and shifted there and since April, 1982 his son is running Hardware shop Sri Ram Machinery. The son of the defendant requested the plaintiff to execute an agreement and accept the son of the defendant as tenant and the plaintiff purchased the stamp himself and executed the agreement. Subsequently the son of the defendant purchased 5 dhur2 ½ kanwa from the sister of plaintiff namely, Kaushilya Devi by sale deed dated 18.5.2002 and since 18.05.2002 the son of the defendant became owner of the property and the son of the defendant has filed partition suit No.17 of 2002.
4. On the basis of the aforesaid pleadings of the parties, the trial Court framed various issues and then recorded the finding that the defendant Vidyanath Gupta is not the tenant rather the plaintiff has admitted Dinanath Gupta as his tenant ad now Dinanath Gupta is residing in the suit premises as purchaser of the suit property. Therefore, there is no relationship of landlord and tenant between the parties. Accordingly, dismissed the plaintiff‟s suit.
5. The plaintiff then filed title appeal before the lower appellate Court. The lower appellate Court after re-appreciating the evidences documentary as well as oral recorded the finding that there is relationship of landlord and tenant between the parties and the plaintiffs has been able to prove his personal necessity ad accordingly allowed the appeal and reversed the 4 Patna High Court SA No.85 of 2011 dt.30-07-2013 4 / 19 Judgment of the trial Court and decreed the plaintiff‟s suit or evict ion on the ground of personal necessity.
6. At the time of admission of this Second Appeal on 10.09.2012 the following substantial question of law were formulated :
(i) Whether the appellate Court has illegally held a relationship of landlord and tenant with the defendant on the strength of an ancient tenancy in his favour in derogation of and without considering the legal effect of Ext.B read with Ext.-C,D, E, F, G, H, I and Ext. J series in favour of Dinanath Gupta?
(ii) Whether an order of eviction of Dinanath Gupta could be passed by the appellate Court in the garb of a decree against Vidyanath Gupta, even without pleading him as a party?
(iii) Whether in a suit of eviction on the ground of personal necessity, the plaintiff is duty bound to show his prima facie title, which he had failed to do, especially in the light of Ext.-I, the admitted sale deed by admitted co-owner Kaushalya Devi (sister of the plaintiff) regarding half of the property and the plaintiff‟s suit could be decreed regarding whole of the disputed land, over which prima facie he has no title?
(iv) Whether the judgment of the appellate Court is vitiated due to absolute non-consideration of oral evidence of defendant except two of them and the appellate Court has miserally failed to consider the reasoning of trial Court, while reversing its finding?
7. At the time of hearing of the Second Appeal on 01.07.2013, another substantial question of law was formulated which is as follows :-
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(i) Whether the Judgment of the lower appellate Court is vitiated for non-consideration of the Proviso to 11 (1) (C) i.e., partial eviction while granting eviction decree against the appellant on the ground of personal necessity?"
8. The learned senior counsel, Mr. S. S. Dwivedi submitted that the finding recorded by the lower appellate Court regarding the relationship of landlord and tenant is perverse because of the fact that the lower appellate Court on the basis of ancient tendency without considering the overwhelming documentary evidence ext. „B‟, ext. „C‟ , D, E, F, G, H I and J series which are in favour of Dinanath Gupta recorded the finding. According to the learned counsel had the lower appellate Court considered these documentary evidences the result would have been otherwise. The learned counsel submitted that in the year 2000, an agreement was entered into between the plaintiff and Dinanath Gupta wherein the plaintiff admitted Dinanath Gupta as his tenant and the agreement is ext. „B‟. Ext. „C‟ is an application filed by the plaintiff wherein he has also admitted that Dinanath Gupta is the tenant and admission is the best evidence. The learned counsel submitted that in view of the above fact the first substantial question of law formulated be answered in favour of the appellant.
9. The learned counsel further submitted that because Dinaanath Gupta is the tenant who has been substituted on the death of Vidyanath Gupta, therefore, on the strength of decree passed against the father Vidyanath Gupta the son Dinanath Gupta who is the real tenant cannot be evicted from the suit premises more so when the plaintiff did not add him as party defendant in the suit. Therefore, the second substantial question of law be answered in favour of the appellant.
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10. So far the third substantial question of law is concerned, the learned counsel for the appellant submitted that since the suit was filed for the eviction only on the ground of personal necessity, the plaintiff was required to prove his exclusive title in the suit property and admittedly the plaintiff is not the exclusive owner of the property as Dinanath Gupta had already purchased the portion of the property and became the co owner with the plaintiff, therefore, these substantial question of law be also answered in favour of the appellant.
11. So far the fourth substantial question of law is concerned, the learned counsel submitted that the lower appellate Court has not considered the entire oral evidences of the defendant and also has not considered the reasonings of the trial Court and reversed the Judgment, therefore, the Judgment is vitiated. So far the substantial question of law formulated at the time of hearing is concerned, the learned counsel submitted that while decreeing the plaintiff suit for personal necessity the lower appellate Court has not at all considered the mandatory provision, i.e, Proviso to Section 11 (C) of the Bihar Building (Lease , Rent and Eviction ) Control Act, 1982. Therefore, also the Judgment of the lower appellate Court is liable to be set aside. The learned counsel Mr. Dwivedi submitted that the appellant No.1, Dinanath Gupta had field partition suit on the basis of sale deed obtained from the sister of the plaintiff and the said suit had been decreed. To bring on record the Judgment of the trial Court and application under Order 41 Rule 27 C.P.C. has been field being I.A. No.7809 of 2012. It was directed earlier that this interlocutory application shall be considered at the time of final hearing of the appeal. Both the parties were heard on this interlocutory applications at length.
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12. On the other hand, the learned counsel, Mr. Jitendra Kishore Verma appearing on behalf of the respondent submitted that none of the substantial question of law formulated in this second appeal arises for decision and moreover the said substantial question of law are not at all substantial question of law. The Judgment of the lower appellate Court elaborately dealt with all the evidences and considering the fact that in the written statement the sole defendant tenant had admitted the tenancy the lower appellate Court found that there is relationship of landlord and tenant between the parties. This finding of the lower appellate Court is based on evidence as such the same cannot be interfered with in the exercise of jurisdiction under Section 100 of the Code of Civil Procedure. According to the learned counsel, Ext.B was never pleaded either in the affidavit seeking leave to contest or in the written statement by the defendant but the same was filed in the Court for the first time on 19th February, 2003 after the plaintiff was examined in Chief. When the plaintiff was cross examined by the defendant the defendant never confronted the document to the plaintiff. The plaintiff field the affidavit i.e., examination-in-Chief on 19th February, 2003 on which date the document ext. „B‟ and ex‟ C‟ were field. The plaintiff was cross examined, by the defendant on 20th and 21st February, 2003. The learned counsel regarding ext. „C‟; submitted that it appears to be forged document because it appears that the application was filed by the plaintiff in the office of Assistant Executive Engineer, Electricity Samastipur but the original application has been filed. There is no explanation as to how the original came in possession of the defendant. Moreover the signature of this document was also not confronted to the plaintiff at the time of cross examination. According to the plaintiff the signature are forged signatures and the plaintiff was never given opportunity to explain the same. The 8 Patna High Court SA No.85 of 2011 dt.30-07-2013 8 / 19 defendant knowingly and intentionally did not produce the document with the written statement and also did not file prior to the filing of the affidavit, i.e., examination in Chief of plaintiff. At the time of cross-examination also the documents were not shown to the plaintiff in the witness box, therefore, these documents are inadmissible evidence and cannot be taken to be admission of the plaintiff, therefore, the lower appellate court has rightly not considered these documents which are inadmissible evidence. So far the other exhibits are concerned, they are income tax return. Therefore, the documents are self serving document which cannot be used against the plaintiff.
13. The learned counsel next submitted that all these documents ext. „B‟ to „J‟ are in the name of Dinanath Gupta. Therefore when the tenancy in favour of Vidyanath Gupta was continuing there is no question of creating fresh tenancy in favour of Dinanath Gupta arises. According to the learned counsel unless the original tenant surrender the vacant possession of the tenanted premises the tenancy never terminate. The plaintiff specifically denied to have executed ext. „B‟ in favour of Dinanath Gupta. The learned counsel further submitted that the original defendant Bidyanath Gupta was the tenant therefore, plaintiff made him party defendant in the eviction suit. Since Dinanath Gupta was not tenant of the plaintiff, there is no question of adding him as party arises. On the death of Vidaynath Gupta the tenancy right was inherited by Dinanath Gupta, therefore, he can be evicted on the basis of decree passed against the original tenant Vidyanath Gupta. Moreover Dinanath Gupta is claiming title on the basis of purchase from the sister of the plaintiff. Therefore unless in the final decree, the property is allotted in his share he cannot continue as a matter of right to possess the suit premises wherein admittedly Vidyanath Gupta was the tenant. The 9 Patna High Court SA No.85 of 2011 dt.30-07-2013 9 / 19 learned counsel further submitted that so far tenancy is concerned, it is admitted by the original defendant tenant Vidyanath Gupta. Therefore, he is estopped from challenging the title of the plaintiff. Vidyanath Gupta admitted the fact that he came in possession of the suit property as tenant. The tenancy never terminated. Now, the original defendant‟s son Dinanath Gupta is claiming title on the basis of purchase and as far as eviction suit is concerned, this question of title is a foreign question to the eviction suit and cannot be decided in this suit. In such view of the matter the present substituted appellants cannot challenge the title of the plaintiff. So far the claim of the substituted appellants that they are co sharer is concerned also involved the question of title which cannot be gone into. The learned counsel further submitted that earlier the plaintiff suit was dismissed recording a finding by the trial Court that there is no relationship of landlord and tenant. The appellate Court found that Dinanath Gupta is the necessary party to the eviction suit because he has purchased the portion of suit property from Kaushalya Devi from co-sharer of the property and the appellate Court directed the trial Court to give him opportunity to be herd. The matter was remanded. Against the said remand order, the plaintiff field Misc. Appeal before the High Court and Dinanath Gupta also field Misc. Appeal before the High Court. Both the Misc. Appeal were heard and the Hon‟ble High Court set aside the remanded order and remanded the matter to the lower appellate Court directing the lower appellate Court to decide the appeal on merit on the basis of materials available. The High Court also held that in eviction suit complicated question of title cannot be decided. So, the question of title of Dinanath Gupta cannot be decided in this eviction suit. After being substituted in place of the appellant Vidyanath Gupta again the same question is being raised by Dinanath Gupta at this stage, therefore, the 10 Patna High Court SA No.85 of 2011 dt.30-07-2013 10 / 19 same cannot be reopened which has already been concluded earlier by the High Court.
14. So far the fourth substantial question of law is concerned, the learned counsel submitted that the sufficient or otherwise of the evidence is not a substantial question of law. The lower appellate Court has considered the relevant evidences which are material for the decision of the controversy therefore, the lower appellate Court Judgment cannot be set aside on the ground that some of the evidences have not been considered by the lower appellate Court. So far partial eviction is concerned according to the learned counsel, the defendant never expressed his willingness that he is ready to occupy the half portion and that the plaintiff requirement will be served if the defendant is evicted from part of the suit premises.
15. In view of the above contention of the parties and from perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court has considered the materials available on record and then recorded the finding that there is relationship of landlord and tenant between the parties. It may be mentioned here that according to the original defendant Vidyanath Gupta he was the tenant of the plaintiff and he was residing in the suit premises with his family members including Dinanath Gupta. He constructed the house and shifted there and the son remained in the suit premises as tenant from the month of April, 1982. The lower appellate Court on the basis of the evidence recorded the finding that the original defendant Vidyanath Gupta never vacated the suit premises.
16. In the case of T. Lakshmipathi Vs. P. Nithyananda Reddy A.I.R. 2003 SC 2427, the Hon‟ble Supreme Court at paragraph 17 held as follows :-
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"17. In the case at hand, it cannot be denied, nor has it been denied, that the appellants herein are not purchasers of the entire ownership interest in the property. What they have purchased is interest of some out of all the co-owners of the property. The interest of the respondent No.1, whatever be its extent, has not come to vest in the appellants. The appellants have also acquired the tenancy rights in the property. Thus they have acquired partial ownership and full tenancy rights. It cannot be said that the interests of the lessee and the lessor in the whole of the property have become vested in the appellants at the same time and in the same right. The lease cannot be said to have been determined by merger."
17. In the case of Ajiz Khan Vs. Abdul Hajiz Khan 1991 (2) P.L.J.R. 752, this Court has held that the question of merger of interest arises only when person acquires a higher interest in respect of the entire property and not in respect of a portion thereof, particularly when there was no severance of joint tenancy. Here, admittedly, the original defendant is not challenging the title of the plaintiff. Dinanath Gupta who has been substituted is challenging the title although the question of title cannot be decided in this eviction suit. He has inherited the right of tenancy of his father, in other words, he has stepped into the shoe of his father and has been substituted as tenant. As has been stated by the learned counsel for the respondent, earlier this Court in Misc. Appeal 498 of 2006 heard along with Misc. Appeal No.20 of 2007 decided the matter on 16.07.2010 and held that Dinanath Gupta is claiming title which cannot be decided in a suit for eviction.
18. In the case of Rajendra Tiwary Vs. Basudeo Prasad AIR 2002 SC 136 the Hon‟ble Supreme Court has held that existence of relationship of landlord and tenant between the parties is sinquanon for granting the relief. The question of title of the parties to suit premises is not relevant and is beyond scope of Court exercising jurisdiction under Bihar Building (Lease, Rent and Eviction) Control Act, 1982.
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19. In the case of State of Andhra Pradesh and others vs. D. Raghukul Pershad (dead) by LRs. and others (2012) 8 SCC 584 the Hon‟ble Supreme Court considering Section 116 of the Evidence Act held that the tenant who is in possession of demised premises is estopped from questioning landlord‟s title so long as tenant does not surrender possession to landlord. Admittedly, in the present case the lower appellate court held that original defendant failed to prove the fact that he ever surrender possession of the suit premises to the landlord plaintiff. His only case is that in the year 1982 he left the suit premises and shifted to his own house constructed by him. His son Dinanath Gupta continued in possession of the property and was carrying on business. Ext. B is of the year 2000. In such circumstances, when the first tenancy between the plaintiff and Vidyanath Gupta never terminated there is no question of creation of fresh tenancy arises. It is the specific case of the original defendant that he was residing in the suit premises along with his family. It is admitted fact that there is no partition between him and the son. Therefore, the tenancy was between the plaintiff and Vhdyanath Gupta although his son might have been in possession of the property and was carrying on business but that will never create tenancy in favour of his son. The counterfoil rent receipt filed by the plaintiff upto year 2000 shows that rent was given on behalf of original defendant by Dinanath.
20. In the case of D. Satya Narayana vs. P. Jagdish (1987) 4 SCC 424 relied upon by the Hon‟ble Supreme Court in the case of State of Andhra Pradesh (Supra) it has been held that the tenant who has been let into possession by the landlord cannot deny the landlord‟s title however, defective it may be, so long as he has not openly surrendered possession to his landlord.
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21. So far non consideration of Ext. „B‟ , C, D, E to J are concerned, it may be mentioned here that the original defendant Vidyanath Gupta did not mention about the date of the alleged agreement ext. „B‟. In the written statement also only reference has been made that his son might have entered into agreement. This ext. „B‟ and „C‟ were produced in the trial Court on 19th February, 2003. The plaintiff had already field affidavit, i.e, examination in Chief on 19thFebraruy, 2003 wherein he has stated that any document produced is a forged document. In cross-examination at paragraph 50, P.W.1 who is a plaintiff also denied to have seen ext. „;B‟ but the said deed ext. „B‟ was never shown to him, i.e., the same was never confronted to him when he denied to have seen the said document.
22. In the case of Sita Ram Bhau Patil vs. Ramchandra Nago Patil (dead) by LRs. and another AIR 1977 SC 1712 the Hon‟ble Supreme Court at paragraph 16 has held as follows :
"16. If admission is proved and if it is thereafter to be used against the party who has made it the question comes within the provisions Section 145 of the Evidence Act. The provisions in the Indian Evidence Act that 'admission is not conclusive proof' are to be considered in regard to two features of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the evidence Act and if it is to be used against the party who has made it, "it is sound that if a witness is under cross- examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule" (see Bal Gangadhar Tilak v. Shrinivas Pandit, 42 Ind App 135 at p. 147 :
(AIR 1915 PC 7 at p. 11)). The Judicial Committee in that case said, "it has to be observed with regret and with surprise that the general principle and the specific statutory provisions have not been 14 Patna High Court SA No.85 of 2011 dt.30-07-2013 14 / 19 followed". The general principle is that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the same. The specific statutory provision is contained in Section 145 of the Indian Evidence Act that "A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilised against him."
23. In view of the above settled proposition of law this Ext. B and C cannot be said to be admission of the plaintiff and the said document cannot be used against the plaintiff. It is reiterated here that during cross- examination of the plaintiff the defendant never confronted him regarding his admission that he had admitted Dinanath Gupta as his tenant. It may be mentioned here that when the tenancy between the plaintiff and Vidyanath Gupta never terminated there is no question of creation of tenancy between plaintiff and defendant arises. So far the non-consideration of Ext. D to J are concerned, all these documents are the documents in the name of Dinanath Gupta because these documents are income tax return etc. On the basis of these documents the relationship of landlord and tenant cannot be found out. So far Ext.C is concerned, there is no explanation as to how the original has been produced from the custody of the defendant. It is expected that the document should be in possession of the office of the Assistant Electrical Executive Engineer.
24. According to the learned counsel for the appellant Dinanath Gupta, the present substituted appellant and others were not made party in the eviction suit, therefore, they cannot be evicted on the strength of the decree 15 Patna High Court SA No.85 of 2011 dt.30-07-2013 15 / 19 passed against Vidyanath Gupta, the father. In this connection it may be mentioned that since the tenancy in favour of Vidyanath Guptya never terminated and he continued to be the tenant, the plaintiff could not have filed the suit against a person i.e. Dinanath Gupta who is not the tenant. He was not at all a necessary party. Moreover Dinanath Gupta is claiming title on the basis of purchase made by him. As has been held by the Hon‟ble Supreme Court the question of title cannot be decided in the present suit for eviction filed under the Bihar Building (Lease, Rent & Eviction) Control Act, 1982.
25. The interlocutory application being I.A. no. 7809 of 2012 has been filed by the appellant. The judgment of the trial court in partition suit No. 117 of 2002 filed by Dinanath Gupta against Ganesh Mahto and others has been produced with the said interlocutory application and it was submitted that since it is a public document formal proof is not necessary. In view of the decision of the Hon‟ble Supreme Court in the case of Union of India vs. Ibrahim Uddin and another 2013 (1) PLJR 48 SC this interlocutory application is heard at the time of hearing of this second appeal. The learned counsel for the appellant submitted that now in view of this decision in partition suit Dinanath Gupta has got half share in the property. In such circumstances, plaintiff cannot maintain this suit for eviction on the ground of personal necessity. Regarding this submission, it may be mentioned that this judgment produced as additional evidence is only a preliminary decree.
26. In the case of Gajara Vishnu Gusavi vs. Prakash Nanasahed Kumble and others 2009 (4) PLJR 225 SC the Hon‟ble Supreme Court has held that purchaser of a coparceners undivided interest in joint family property is not entitled to possession of what he had purchased. He has a 16 Patna High Court SA No.85 of 2011 dt.30-07-2013 16 / 19 right only to sue for partition of property and ask for allotment of his share in suit property. In the present case, in view of the preliminary decree the defendant has got a share in the joint family property. On this ground alone he cannot resist the possession of this suit premises because a final decree is yet to be prepared in the partition suit. In view of the above decision of the Hon‟ble Supreme Court he is not entitled to possession of a particular property. Moreover, so far this question is concerned, it is a question of title which cannot be decided in this eviction suit on the ground of his title. The earlier claim was negatived by the High Court in the Misc. Appeal No. 20 of 2007 which was heard along with the Misc. Appeal No. 498 of 2006. This court on 16.7.2010 held that the question of title raised by Dinanath Gupta cannot be decided in this eviction suit. Now, therefore, Dinanath Gupta after substitution cannot be allowed to agitate the same matter regarding title again. In my opinion, therefore, whether he has got title to the suit property or not is not a question to be decided in this eviction suit. If a final decree is passed in his favour and if the present suit property will be allotted in his favour, he will be entitled for delivery of possession of the property but at this stage he being the purchaser cannot claim possession on particular property i.e. the suit property particularly when his father was the tenant in the suit premises. In my opinion, therefore, there is no relationship of landlord and tenant between the plaintiff and Dinanath Gupta and the lower appellate court has rightly held so. In such circumstances, Dinanath Gupta was not necessary party. In view of Section 12 of Bihar Building (Lease, Rent and Eviction) Control Act anybody who is in possession of the suit property can be evicted. Here Dinanath Gupta is claiming title on the basis of the preliminary decree.
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27. So far proving of exclusive title of the plaintiff on the subject matter of suit is concerned, it may be mentioned that there is no dispute regarding title of the plaintiff. The original tenant has never denied the title of the plaintiff. The learned counsel relied upon a decision of the Hon‟ble Supreme Court in the case of M. M. Quasim vs. Manohar Lal Sharma and others AIR 1981 SC 1113. It appears that in that case an agent had filed the suit for eviction on the ground of personal necessity. In the present case, the plaintiff is the owner of the property and is not an agent. As stated above the original defendant did not deny the title of the plaintiff. The present substituted appellant Dinanath Gupta is denying the title on the basis of preliminary decree. As admitted no final decree has been passed and moreover this question raised by Dinanath Gupta is question of title between the plaintiff and Dinanath Gupta. This is not a title suit, therefore, this title between Dinanath Gupta and the plaintiff cannot be decided in the eviction suit. Here the appellants have inherited the tenancy right of Vidyanath Gupta, therefore, they cannot take other stand then that of Vidyanath Gupta. As has been discussed above, the Hon‟ble Supreme Court as well as this Court has held that the tenancy right transferred to the appellant does not merge in the ownership and the lease cannot be said to have been determined by merger.
28. The substantial question of law formulated at the time of this second appeal relates to the consideration of partial eviction. The learned counsel for the appellant submitted that the lower appellate court has not considered mandatory provision of partial eviction and, therefore, the judgment is vitiated. Regarding this submission this Court in the case of Sri Vinod Kumar Gupta vs. Smt. Pushpa Devi 2005 (3) PLJR 719 has held that the landlord cannot be saddled with the onus of proving as to whether 18 Patna High Court SA No.85 of 2011 dt.30-07-2013 18 / 19 the bona fide requirement can be substantially satisfied by order of partial eviction as once the landlord has proved his bona fide need of the premises onus shifts on the tenant. Proviso to Section 11(1)(C) says that where the court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the court shall pass a decree accordingly and fix proportionately fair rent for the portion in occupation of the tenant.
29. In the case of Jyoti Prasad Verma vs. Basanti Devi 2006 (4) PLJR 346 this Court has held that if any tenant takes plea for partial eviction then in that case he must came before the court with clean hand and must say that he is ready to pay the rent at the prevalent market rate failing which his plea for partial eviction should not be considered.
30. In the present case at our hand, it is not the case of the defendant that the partial eviction will satisfy the need of the plaintiff and that he is agreeable for the partial eviction. On the other hand, the ground of the original tenant is that he has already shifted his residence after constructing his house. Originally he was residing in the suit premises with his family members. The present appellants are the family member of Vidyanath Gupta. The original tenancy never terminated. There is no relationship of landlord and tenant between Dinanath Gupta and the plaintiff. Dinanath Gupta is claiming title on the basis of preliminary decree. Now therefore, the substituted appellants cannot be allowed to say that the judgment is vitiated because of question of partial eviction has not been considered by the lower appellate court. From the case of the parties, it is clear that original defendant was residing in the suit premises and they have shifted the 19 Patna High Court SA No.85 of 2011 dt.30-07-2013 19 / 19 residence. The defendant never raised any question of partial eviction either in the written statement or in the evidence.
31. In relation to 4th substantial question of law is concerned, it is settled principles of law that adequacy or sufficiency of evidence is not a substantial question of law. The lower appellate court has no doubt not considered all the evidences but has considered some of the evidences which are relevant for consideration. It is not the case of the appellant that on the basis of the evidences no prudent person could have come to the conclusion which the lower appellate court has found.
32. In view of the above discussion, I find that Ext. B and C to J which were not considered by the lower appellate court will not vitiate the judgment of the lower appellate court. The said document cannot be said to be the admission of the appellant and, therefore, cannot be used against the appellant.
33. In view of my above discussion all the substantial questions of law formulated are answered against the appellant and in favour of the plaintiff respondents.
34. In the result, this second appeal is dismissed with cost of Rs.10,000/- to be paid by the defendant appellant to the plaintiff respondent within two months from today, failing which the plaintiff respondent is at liberty to realize the same through the process of the court.
(Mungeshwar Sahoo, J.) Sanjeev/A.F.R.