Patna High Court - Orders
Sahnaj Bano & Ors vs Mussarat Jehan on 27 April, 2009
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.406 of 2008
1. SAHNAJ BANO, WIFE OF MD. SAMIM RESIDENT OF VILLAGE-
JOLAHACHAK, MAKHDUMCHAK, P.S.-SIGORI, DISTRICT-PATNA.
2. AFSARI KHATOON @ BHUSHANI @ AFSARI BANO WIFE OF MD. NASIM
@ BADSHAH RESIDENT OF VILLAGE-NAUBATPUR, LAKH AMARPUR,
P.S.-NAUBATPUR, DISTRICT-PATNA.
3. BHUSHAN @ HASSAN IMAM, SON OF LATE RAFIQ RESIDING AT
VILLAGE RAHMATGANJ, P.S.-MASAURHI, DISTRICT-PATNA.
.................. DEFENDANTS ......... PETITIONERS
Versus
MUSSARAT JEHAN, WIFE OF MD. SAGIR AHMAD RESIDENT OF
VILLAGE RAHMATGANJ, P.O. & P.S. - MASAURHI, DISTRICT-PATNA.
.............. PLAINTIFF ............ OPPOSITE PARTY
For the Petitioner : Mr. Arun Kumar, Advocate
Mr. Anil Kumar Singh, Advocate
For the Opposite Party : Mr. Mahendra Prasad, Advocate
PRESENT
HON'BLE JUSTICE MIHIR KUMAR JHA
6 Mihir Kr. Jha, J Heard counsel for the parties.
This Civil Revision Application is directed against the
judgment and decree dated 15th April, 2006 in Eviction Suit No.
1/1994 passed by the Munsif, Civil Court, Masaurhi (Patna),
directing the defendant-tenant-petitioners to vacate the suit
premises within fifteen days and give its delivery of possession to
the plaintiff-opposite party.
The plaintiff-opposite party had filed Eviction Suit
No. 1 of 2004 claiming, interalia, that she was owner/landlord of
the house bearing holding no. 147, Ward No. 2 on a piece of land,
Plot No. 1026 under Khata No. 179 measuring an area of 1 katha
situated at Mauza-Rahmatganj, Masaurhi within the district of
Patna. In the plaint she had claimed that the suit premises
consisted of three rooms and was let out to the defendant-
petitioners for fixed period of eleven months on 2.7.2007 on a
monthly rental of Rs. 250/-. It is the case of the plaintiff-opposite
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party that the defendant-petitioners had occupied the suit premises
and had started living therein and also paying rent on month to
month basis till October, 2002, but thereafter payment of rent was
stopped from November, 2002 and a sum of Rs. 4,000/- had fallen
due against the defendant-petitioners up to February, 2004. The
plaintiff-opposite party, however, without claiming payment of
arrears of rent had filed the eviction suit only on the ground of
personal necessity as according to her size of family had increased
and she was finding it difficult to adjust her family members in
absence of proper accommodation. Such personal necessity had
been sought to be explained in paragraph 5 of the plaint by also
taking a plea that brothers of husband of the plaintiff had divided
their properties in three parts on account of which plaintiff-
opposite party was left with no sizable and sufficient space to
accommodate her family members. It was her case that since she
had no other vacant premises for her residential purposes
accommodating family members, there was a necessity for
eviction of the defendant-petitioners as even partial eviction was
not going to solve her such requirement. In the plaint the plaintiff-
opposite party had claimed that as the repeated request for
vacating the suit premises by the defendant-petitioners did not
yield any fruitful result, she by keeping her right reserved to
realize arrears of rent, had filed eviction suit only on the ground of
personal necessity under section 11(1)(C) of the Bihar Building
(Lease, Rent and Eviction) Control Act, 1982 for eviction of the
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defendant-petitioners.
The defendant-petitioners having sought leave to
contest the suit had also filed their written statement, wherein they
had claimed that the suit in question was brought by the plaintiff-
opposite party in collusion with their enemies who had formed a
gang and had made a plan to evict and dispossess the defendant-
petitioners from her own premises. The defendant petitioners
while giving details of her enemies had further explained this
aspect in the written statement by citing event of 14.10.2003 when
it is said that Md. Mannan with his unruly supporters had made an
attempt to evict the defendant-petitioners and her family by use of
force, leading to institution of a criminal case under sections 341,
452, 427, 323 and 347 of the Indian Penal Code against Md.
Mannan and others who were said to be close relative of the
plaintiff-opposite party. Reference in this connection has also been
given in the written statement with regard to a proceeding under
section 107 of the Code of Criminal Procedure against Md.
Mannan and others. The defendant-petitioners, therefore, claiming
herself to be owner of the suit premises had straight way denied
the story of the plaintiff-opposite party to have taken the suit
premises on rent and in this context while setting up their right,
title and possession of the suit property, it was claimed by them
that the suit property was settled initially to one Budha Mian by
the Ex-landlord in the year 1920 through HUKUMNAMA dated
27th June, 1920 and from that time the ancestors of the defendant-
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petitioners being owners were living in the same house/premises.
Having thus set up a parallel case for being owner of the suit
property the defendant-petitioners had also clearly denied to have
ever entered into any rent agreement and as such the plea of
personal necessity even when not categorically denied by
answering paragraph no.5 of the plaint was sought to be denied as
a whole.
The trial court, i.e, the Court of Munsif in view of
pleadings of the parties had framed six issues as recorded in the
impugned order in which issue no. 3 and issue no. 5 were the most
relevant and the core issues wherein relationship of landlord and
tenant as also the plea of personal necessity was sought to be gone
into in the light of the evidence adduced by the parties.
The plaintiff-opposite party had examined as many as
seven witnesses and had also adduced documentary evidence
which were marked as Exhibits 1 to 7/A. On the other hand, the
defendant-petitioners had examined six witnesses and had
produced a SADA HUKUMNAMA and a receipt showing
payment of tax to the Notified Area Committee as her
documentary evidence.
The trial court after detailed discussions in paragraph
no.7 of the impugned judgment, having earlier made thread-bare
discussion of oral and documentary evidence of both the parties
had held that there were sufficient material to show that the
plaintiff-opposite party was owner of the suit premises and in this
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regard it had placed reliance on the sale deed produced by the
plaintiff-opposite party dated 22nd October, 1937 (Ext.3), sale deed
dated 2.6.1965 (Ext. 4) and sale deed dated 30.5.2002 (Ext.2) to
hold that the plaintiff-opposite party was owner of the suit
premises, a fact which in the opinion of the court below got
support from the order dated 15.12.2004 of the Notified Area
Committee in Mutation Case No. 47 of 2004-05 (Ext.5) and the
order of mutation of land covering the tenanted premises in favour
of plaintiff-opposite party dated 10.6.2003 passed by the
Anchaladhikari, Masaurhi in Mutation case No. 1480 of 2002/03
(Ext.6), all of whom stood further corroborated from the rent
receipts i.e. Ext.7, Ext.7/A and Exts. 1 series.
The findings recorded by the court below as with
regard to the plaintiff-opposite party being owner of the suit
premises being based on appreciation of documentary evidence
duly supported and explained even in her oral evidence would
definitely inspire confidence because the court below had also
looked into the parallel claim of title of the defendant-petitioners
and had found that either SADA HUKUMNAMA (Ext.A) of the
year 1920 or the rent receipt of the Notified Area Committee
(Ext.B) did not inspire any confidence, inasmuch as, they actually
did not belong to the defendant-petitioners. In this respect the trial
court had gone to hold that the documentary evidence led by the
defendant-petitioners was fraudulently created and in fact no such
rent receipt in the name of mother of the defendant-petitioners was
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ever issued by the Notified Area Committee, Masaurhi and the
rent receipts produced by the defendant-petitioners actually was
one which was issued in the name of the purchaser from the
plaintiff-opposite party, who incidentally had same name Sherun
Nisa, which is said to be also name of mother of defendant-
petitioners.
The aforementioned categorical finding with regard to
the plaintiff-opposite party being owner and thus landlord of the
suit property having been found established by the court below in
the detailed discussions in the impugned judgment could not be
questioned by counsel for the defendant-petitioners whose only
criticism against the said finding was that the suit in question was
filed by the plaintiff-opposite party with mala-fide design and
actually by way of declaratory suit in the garb of eviction suit. As
discussed above the trial court had gone into the question of title
only incidently and that too when the case of parallel title was set
up by the defendant-petitioners for a limited purpose of recording
finding on the issue of relationship of landlord-tenant between the
plaintiff-opposite party and defendant-petitioners.
In the opinion of this Court, examination of such an
issue for recording a findings of relationship of landlord and tenant
was absolutely necessary and the defendant-petitioners cannot
make a grievance on this score. Had the defendant-petitioners, in
fact, any genuine claim of title over the suit property as infact was
stated in their written statement, nothing had presented them from
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filing their own title suit, but that having been not done, the
approach of the court below in looking into the issue of title for
determination of relationship of landlord and tenant cannot be
faulted either on fact or in law. Reference in this connection may
only be made to a judgment of this court in the case of Sarkar
Sharan and others Vs. Ram Prabad Gupta and others reported in
1999(3) PLJR 923 wherein it was held that the question of title of
the plaintiff over the suit property can be gone into incidentally for
determining the relationship of landlord and tenant. Infact
considering the very aspect, it was held in the case of Sarkar
Sharan (supra)
"..........If such questions of title are not decided in
eviction proceeding under Section 14 of the B.B.C. Act
then perhaps no eviction suit would be allowed to
proceed under summary procedure when the tenant
would come up with a false plea of the setting up on a
third party. In the present case it is not a complicated
question of title rather such title can be decided for
ancillary purposes for a summary proceeding of
eviction. In such circumstances, it (sic) do not find that
the learned court below has committed any error of law
or jurisdictional error in deciding the title of the
plaintiff over the suit property for ancilliary purposes
of an eviction proceeding.........."
This Court, in fact, having noted that the court below
had made a thread-bare discussions not only of the title of the
plaintiff opposite party over suit property, but also having held
that both documentary evidence adduced by the defendant-
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petitioners, namely, HUKUMNAMA and the rent receipt were
forged and fabricated and did not prove her alleged title to the suit
property, would also find no error in the consequential finding of
the defendant-petitioners being tenant of the suit premises,
inasmuch as, this finding was also recorded on appreciation of
evidence led by the plaintiff-opposite party that the defendant-
petitioners were tenant on payment of Rs.250/- per month, a fact
which could not be demolished otherwise by any of the evidence
led by the defendant-petitioners.
Counsel for the defendant-petitioners, however, was
quite emphatic in his submission that the plea of personal
necessity was not gone into by the court below in a detailed
manner and the cryptic finding recorded in one paragraph was
wholly insufficient for deciding the eviction suit filed by the
plaintiff-opposite party only on the ground of personal necessity.
Counsel for the plaintiff-opposite party on the other
hand in this context had referred to categorical finding recorded by
the court below which in his opinion were based on appreciation
of oral evidence and in this context he had placed reliance not only
on the evidence of P.W.1 and P.W.2 who had given details of
increased size of family members of the plaintiff-opposite party
and in sufficient space being available for such a large family. In
that context counsel for the plaintiff-opposite party had also
referred to evidence of the defendant- petitioners, D.W.3 who in
paragraph 14 himself had himself admitted that family of the
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plaintiff-opposite party had 15 to 16 members.
This Court had also looked into evidence of P.W.1 to
P.W.4 and on their perusal it has found that all of them had not
only consistently stated about personal necessity of the plaintiff-
opposite party but even the plaintiff-opposite party as P.W.6
herself despite being questioned on her specific case of personal
necessity in paragraph 8 of examination-in-chief, could not be
discredited in any manner in her cross-examination. Paragraph-30
of her deposition, in fact, would clinch the issue wherein she had
said that her family consisted of nearly 20 persons out of which
there were 10 female members including two unmarried daughters
as also four adult sons were who were living together in joint
family and as such the requirement for the suit premises was a
personal bonafide necessity. In fact, when in paragraph 31 the
plaintiff-opposite party on being cross-examined with regard to
availability of any space/house other than the suit premises, had
clearly asserted that she had no other house where she could live
with her family members including old father-in-law and mother-
in-law, this Court would find that the weight of evidence of the
plaintiff-opposite party even in respect of personal bonafide
necessity was far more heavier than the ipse-dixit of the
defendant-petitioners. This Court, therefore, on perusal of
evidence itself must hold that the plea of personal necessity as set
up by the plaintiff-opposite party was fully established by her
evidence and that the defendant-petitioners could not even bring
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any cogent evidence to controvert such full proof case of the
plaintiff-opposite party.
This Court at this place must take a note of the fact
that the defendant-petitioners even otherwise could not have been
permitted to expand their case in relation to either personal
necessity or partial eviction because the specific plea of the
plaintiff-opposite party in paragraph 5 of the plaint, as noted
above, was not even denied specifically by them save and except a
bald denial of the entire statements in the plaint on the ground that
they were owners of the suit property. Thus, even on the basis of
the pleadings when the plaintiff-opposite party had proved her
case of personal necessity the defendant-petitioners in absence of
any specific plea on the issue of personal necessity and/or partial
eviction raised in their written statement could not have been
permitted even by the trial court or by this Court to go beyond
their own pleadings especially when one of their own witness,
D.W.4, had himself admitted the large size of family of the
plaintiff-opposite party establishing the need for a bigger
accommodation.
The only other criticism of learned counsel for the
defendant-petitioners as against the finding in impugned judgment
is on the issue of partial eviction. He would submit that the court
below had not discussed the issue of partial eviction in a
satisfactory manner. The submission of the learned counsel for
defendant petitioner is that the size of family of the plaintiff-
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opposite alone was not good enough an answer and infact required
detailed consideration on the issue of partial eviction.
Rebutting the aforementioned submission, the learned
counsel for the plaintiff-opposite party had however submitted that
when it was proved beyond doubt that the joint family of the
plaintiff-opposite party was having more than 20 members
including old father-in-law and mother-in-law, four employed
sons, two marriageable daughters amongst ten female members
the analysis of materials on record and the conclusion arrived at by
the court below on the issue of personal necessity was itself
sufficient to hold that the partial eviction could not have served the
requirement of plaintiff-opposite party. In this context he would
refer to a judgment of this Court in the case of „Gajendra Prasad
Sinha & Anr Vs. Man Mohan Prasad Sinha‟ reported in 1999
BBCJ 450.
True it is that the court below had not made an
elaborate discussion on the issue of partial eviction separately, but
then discussion in the impugned judgment with regard to personal
necessity of the plaintiff-opposite party to the extent of having
family of more than 20 members with no house of their own to
accommodate old father-in-law and mother-in-law requiring at
least one room, the unmarried adult daughters and other eight
female family members including the plaintiff-opposite party
requiring yet another room for them so as to leave the four adult
male employed family members to be accommodated in the third
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and last room was by itself sufficient to hold that requirement of
the plaintiff-opposite party would not have been fulfilled by the
partial eviction of the suit property.
There is infact no magic word in the concept of partial
eviction and the decision on such issue will always depend on the
individual facts of each case. For a family of two persons a
residential premises of two rooms may be sufficient and in such
case if suit premises is more than two rooms and challenge is
made with regard to personal necessity by the defendant-tenant,
the Court will be required to go into such question of partial
eviction in a more elaborate manner to look into the aspect as to
whether by partial eviction of the defendant-tenant, necessity of
the plaintiff could be fulfilled. This situation, however, would not
be in a case where a family of 20 members with 10 females of
three generations are required to live under the same roof. The
landlord cannot be subjected to such rigorous interpretation of law
under section 11(1)(C) of the Act that for reoccupying his own
house he will have to give account of every inch of space that he
would need for living therein for proving his personal necessity.
The Courts will always have to keep in mind that the findings in
respect of personal necessity can itself contain the findings of
partial eviction and therefore merely because finding of such
partial has not been elaborately dealt separately by the trial court
in the impugned judgment that by itself can not be a ground to set
aside the same. In this context reliance placed by counsel for the
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plaintiff-opposite party on the following passage of judgment of
this Court in the case of Gajendra Prasad Sinha (Supra) is quite apt
and fully applicable to the facts of this case wherein it was held
that : -
"About partial eviction it appears that the
learned court below has not much discussed on
this point but considering the position and
situation of the suit house discarded possibility of
partial eviction. Admittedly, the suit house
consists of two rooms, one latrine, one gali and
an angan and it is also an admitted fact that the
plaintiff has got two marriageable daughters
besides himself and his ailing wife. In such
circumstances two rooms and one latrine cannot
be divided for the purpose of partial
eviction......."
In the present case, in fact, position is still better
because as noted above family of the plaintiff-opposite party has at
least 20 members and that too of three generations, namely, father-
in-law and mother-in-law, the plaintiff on her own and her four
adult sons and two marriageable adult daughters. For such a large
family at least three rooms in any event would be required as all of
them must have some sort of privacy in his or her own house. The
dogmatic concept of partial eviction thus cannot be made
universally applicable as a bare requirement of law bereft of
individual facts and circumstances of each case.
Judged in this background, this Court is satisfied that
the partial eviction of the defendant-petitioners could not have
served the bonafide personal necessity of the plaintiff-opposite
party and therefore the impugned judgment and decree cannot be
faulted even on that score.
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Thus, on over all analysis of the materials on record
this Court would find no merit in this Civil Revision Application
and the same must be and is hereby dismissed.
There would be, however, no order as to costs.
Patna High Court (Mihir Kumar Jha, J.)
Dated the 9th September, 2009
Abhay Kumar/