Jharkhand High Court
Manorama Devi Alias Mannu Devi And Ors vs Smt Sushila Devi Joshi on 29 September, 2015
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No.138 of 2014
1. Manorama Devi @ Mannu Devi, wife of late Ramchandra Tibrewal
2. Ashok Kumar Tibrewal
3. Anil Kumar Tibrewal, respondent nos.2 and 3 sons of late Ramchandra
Tibrewal, all resident of New Colony, Opposite Plaza Cinema,
Tharpakhana, P.S. & P.O. Lalpur, DistrictRanchi ............... Appellants
Versus
Smt. Sushila Devi Joshi, wife of late Govind Ram Joshi, resident of Cart Sarai
Road, Upper Bazar, P.S. & P.O. Kotwali, DistrictRanchi ...... Respondent
CORAM: HON'BLE MR. JUSTICE D.N. UPADHYAY
For the Appellants : Mr. A.K. Srivastava, Advocate
Mr. Badal Vishal, Advocate
For the Respondent : Mr. S. Tiwari, Advocate
Mr. Shresth Gautam, Advocate
C.A.V. on :10.09.2015 Pronounced on : 29.09.2015
O R D E R
This Second Appeal has been filed against the judgment dated
11.06.2014and decree dated 26.06.2014 passed and signed by learned Judicial Commissioner, Ranchi in connection with Title Appeal No.52 of 2012 whereby the judgment dated 23.07.2012 and decree dated 06.08.2012 passed and signed by learned 2nd Additional Minsif, Ranchi in connection with Title Suit No.25 of 2004 has been upheld. The defendantsappellants were substituted after death of original defendant Ramchandra Tibrewal since he died during pendency of the suit. The respondent is the plaintiff.
2. The facts, in brief, is that the plaintiff brought a suit for evicting the defendants from the suit premises, which is pucca shop, area measuring 228 sq. ft. being a portion of M.S. Plot No.1565, Ranchi Municipal Corporation No.1287 within Ward no.VI situated at the Cart Sarai Road, Upper Bazar, P.S. Kotwali, District Ranchi, well described in the plaints, on the following grounds:
(i) The defendants became defaulter in making payment of rent from the month of September, 2004 and therefore, they are liable to be evicted therefrom under Section 11(i)(d) of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (for short hereinafter referred to as 'BBC Act')
(ii) The plaintiff is in bonafide need of the suit premises for her personal use and occupation because she is having source of income from 2 rent only which is meager for her subsistence and in order to enhance her income she requires the suit premises for her personal use and occupation for commencing a business to be done by her son Manoj Kumar Joshi.
3. It is disclosed that at the time of filing of the suit the defendants were paying monthly rent at the rate of Rs.750/ per month. Since the defendants have become defaulter from making payment of rent from the month of September, 2004, the plaintiff has also sought for a decree for arrears of rent amounting to Rs.36,000/.
4. The defendantsappellants filed their written statement and vehemently opposed the averment made by the plaintiff that the defendants have become defaulter and they have not tendered rent from the month of September, 2004. In support of pleadings, the defendants had adduced evidence and produced document before the trial court. After framing the issue required under Section 11(i)(d) of the BBC Act the learned trial court has decided the issue in favour of the defendants and rejected ground no.1 relied upon by the plaintiff.
So far second ground of personal necessity is concerned, the defendants have opposed the same by making averment in their written statement that the plaintiff is having premises other than the suit premises for her bonafide and personal use and that Manoj Kumar Joshi is not her son and therefore, the plaintiff is not entitled to repossess the suit premises for her personal use and occupation. It was also contended before the courts below that pleading of the plaintiff is completely silent on the point that Manoj Kumar Joshi happens to be adopted son of plaintiff and she requires the suit premises for engaging said adopted son. The plaintiff has led evidence beyond the pleadings to which the courts below have accepted and decided the issue in favour of the plaintiff and therefore, substantial question of law is required to be formulated for just and proper decision of this appeal.
5. On the other hand, it was argued on behalf of plaintiff respondent that it was well pleaded in the plaint and evidence was also adduced. Since the defendants have raised a question that Manoj Kumar Joshi is not the son of plaintiff, evidence so led to prove it that Manoj Kumar Joshi is not the biological son of plaintiff but he was adopted by her while he was aged 23 years and the adoption was made after performing required rituals in the family. Not only that, biological mother of Manoj Kumar Joshi 3 had come before the Court and deposed in support of the contention made by the plaintiff.
6. In view of the argument advanced from both sides, it is apparent that the relationship of landlord and tenant is not under challenge. It is also not disputed that findings of the trial court given against the plaintiff on the issue of defaulter was not challenged before the lower appellate court by the plaintiff by filing any cross appeal.
It appears that the defendants remain concentrated and had given more stress on the point that Manoj Kumar Joshi is not the son of plaintiff and it is not pleaded in the plaint that said Manoj Kumar Joshi is adopted son of plaintiff. Both the parties have led evidence on the question of adoption of Manoj Kumar Joshi in a suit filed under BBC Act. Not only that, the courts below were also persuaded from the contention made by the parties and the evidence led by them as well. Elaborate discussions have been made on the issue of adoption raised.
7. I am of the firm opinion that such an issue was beyond the purview of suit brought for eviction on the ground enumerated under Section 11(i)(c) of the BBC Act and therefore, it could not be a substantial question of law whether the plaintiff has specifically pleaded or not that Manoj Kumar Joshi was her adopted son. What is to be proved by the plaintiff who has brought a suit for eviction under Section 11(i)(c) of the BBC Act is that he/she will have to prove his/her bonafide requirement of the suit premises in good faith for his/her personal use and occupation. Besides the above, the court has to decide whether partial eviction shall serve the purpose or not.
8. In the case at hand, the plaintiff who is a widow has made averment in the plaint that source of income for her livelihood is only the rent which she receives from the property owned by her. The income from rent is meager one and insufficient for her subsistence. Therefore, she bonafidely and in good faith need the suit premises for her personal use and occupation and she wants to start a business to be assisted by her son Manoj Kumar Joshi.
On the other hand, the defendants, to controvert the averment, have tried to brought on record that the plaintiff is having more premises other than the suit premises where she can start a business to augment her income. As a matter of fact, she wants to evict the defendants for the 4 purpose of enhancing rent. Be that as it may, the points which have been raised by the counsel appearing for the appellants are nothing but pure question of facts and the same have concurrently been decided by both the courts by discussing the documents and evidence elaborately and also by giving justified reasonings. The courts below have also discussed the issue of partial eviction and it has rightly been held that described premises is having an area of 228 sq. ft. which is smaller one and partial eviction will not serve the purpose of plaintiff. It has rightly been held that question of partial eviction arises when the tenant proposes his readiness and willingness for the same. In view of the concurrent findings given by both the courts and discussions made above, I do not find that any substantial question of law is required to be formulated for just decision of this appeal filed under Section 100 of the Code of Civil Procedure. This appeal is devoid of any merit and accordingly, the same stands dismissed.
(D. N. Upadhyay, J.) Jharkhand High Court, Ranchi Dated : 29.09.2015 NKC// N.A.F.R.