Patna High Court - Orders
Satish Singh vs Sunil Kumar on 15 July, 2010
Author: Ravi Ranjan
Bench: Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.2191 of 2009
SATISH SINGH, Son of Amar Singh, Resident of Mohalla Daldali Bazar, Mauna
Banganj, P.S. and P.O. Chapra Town, District Saran
.... Defendant / Petitioner
Versus
SUNIL KUMAR, Son of Madan Gopal @ Bachchan Prasad, Resident of Mohalla
Daladali Bazar, P.S. and P.O. Chapra Town, Saran, District Saran
.... Plaintiff / Opposite Party
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For the Petitioner : Mr. Gyan Prakash, Advocate
For the Opposite Party : Mr.Vijay Kumar Srivastava, Advocate
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5 15.07.2010This civil revision is directed against the order / judgment dated 31.10.2009 passed by the 1st Munsif, Chapra, in Eviction Suit No. 6 of 2006, whereby the defendant - petitioner has been directed to vacate the suit premises within two months and deliver the possession to the plaintiff - opposite party.
This civil revision is being disposed of at this stage upon the joint request of the parties.
The Eviction Suit No. 6 of 2006 was
brought by the plaintiff - opposite party for
direction to the defendant-petitioner for vacating the suit premises and hand over possession to the plaintiff - opposite party as the plaintiff - opposite party requires the suit premises for his personal use.
The trial court after framing the issues 2 allowed the suit and directed the defendant - petitioner to vacate the suit premises within two months and hand over the vacant position to plaintiff and perused the records.
I have heard Mr. Gyan Prakash, learned counsel for the defendant - petitioner and Mr. Vijay Kr. Srivastava, learned counsel for plaintiff - opposite party.
Learned counsel for the petitioner submitted that the father of the defendant -
petitioner, namely, Amar Singh was inducted as the tenant by the grandfather of the plaintiff - opposite party, namely, Gangotari Prasad. After death of aforesaid Gangotari Prasad, the father of the plaintiff
- opposite party, namely, Bachchan Prasad became the karta of the joint family and the defendant - petitioner was regularly paying rent to him. However, only with a view to evict the petitioner a partition suit was filed and wherein a compromise had been arrived and a decree showing the suit property allotted in favour of the plaintiff - opposite party had been passed. Learned counsel 3 submitted that very cleverly neither the defendant- petitioner nor even the sister of the plaintiff - opposite party were impleaded as a party in the aforesaid partition suit. Thus, it is contended that the partition suit was filed with ulterior motive only with a purpose to utilize the decree concerned as a tool for eviction of the defendant - petitioner. It was urged that there are other premises available to the plaintiff - opposite party to live therein and further that he was still living with his father, brother and sister, thus, there is no personal necessity as has been set out in the plaint by the plaintiff. The defendant-petitioner had denied the fact that the plaintiff was living in a rented house. Further contention raised on behalf of the defendant
- petitioner was that there had been an agreement for sale of the suit premises between the father of the plaintiff as well as with the defendant - petitioner and they entered into in agreement on 8.8.2001 and, accordingly, out of Rs. 1,50,000/- of total consideration money Rs. 1,00,000/- was already paid. Learned counsel submitted that a title suit 4 has already been filed bearing Title Suit No. 207 of 2006 for a direction to the father of the plaintiff for executing the sale deed in favour of the petitioner after accepting the balance consideration money. Learned counsel had placed reliance upon a decision of Ranch Bench of this Court in Mandan Lal Agrawal vs. Binode Kumar Tantia and others reported in 1996(2) PLJR 737, to impress upon this Court that it was duty of Court to determine at the first instance regarding the reasonable requirement of the premises and such determination must be objectively done and not on the basis of ipse dixit or mere desire of the landlord. The Court should also have considered the question of adequacy of partial eviction. That apart, it had been submitted that said Bachcha Prasad, the father of plaintiff, has not been examined as witness to prove the partition, thus, the story of partition in the family of the plaintiff should have been discarded.
Learned counsel appearing on behalf of the plaintiff - opposite party, on the other hand, contended that it is a fact that the suit property was 5 initially in the name of the grandfather of the plaintiff and, thereafter, his father became the karta of the joint family but subsequently a partition suit was filed which had ended in passing of a compromise decree and according to that decree the plaintiff - opposite party became the owner of the property. It was urged that a tenant is not competent to question the decree of partition passed even on the basis of the compromise. Learned counsel had placed reliance upon a decision of this Court in Rajendra Prasad Vs. Manohar Lal Gupta and others reported in 1991(1) PLJR 545. In this regard it is submitted that this Court has held that a person who is landlord within the meaning of section 2(d) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act) has a right to maintain a suit for eviction. Even one of the co-owners can maintain a suit for eviction in respect of the tenanted premises. The pendency of a partition suit for partition amongst the co-sharers will not affect the right of one of the co-sharers to 6 maintain the suit for eviction of the tenant.
Learned counsel further submitted that after holding that there existed a relationship of landlord and tenant between the party, the trial court upon appreciation of materials on record including the evidence led on their behalf as well as rival contentions of the parties, has held that since the suit land was allotted to the plaintiff on partition and, thereafter, he was living in a rented house, as the house in which he was earlier allotted had been allotted to his father in the partition suit, the plaintiff in bonafide personal requirement of the suit premises. Learned counsel further submitted that the question of partial eviction has also been discussed and decided by the trail court. So far the question of Mahadnama executed by the father of the plaintiff in faoaur of petitioner is concerned, it had been submitted that for that purpose Title Suit No. 207 of 2006 has been filed. However, the tenant on the basis of that Mahadnama cannot resist his eviction. In support of his submission learned counsel had placed 7 reliance upon a decision of this Court in Gajendra Pd. Singh v. Man Mohan Pd. Sinha reported in 1999(2) PLJR 189. Thus, it is contended that there is no illegality or error in the impugned order / judgment passed by the trial court.
I have heard the parties and perused the records of the case.
I find force in the submissions raised on behalf of the plaintiff - opposite party. The petitioner accepts that his father was inducted as a tenant by the grandfather of the plaintiff - opposite party and thereafter, after demise of his father he remained as a tenant in the premises. However, according to the defendant - petitioner the father of the plaintiff was the karta of the family, thus, the plaintiff was not competent to maintain the eviction suit. But the plaintiff has clearly come out with the case that there was dispute in his family due to which a partition suit was filed and in partition suit the parties compromise between themselves and a decree accepting the aforesaid compromise was passed, whereby the plaintiff had been allotted the 8 suit premises and the house in which he was earlier residing with his father and other family members has been allotted to his father.
It is well settled that the tenant cannot challenge the decree of partition in a suit for eviction. The trial court has also dealt with this issue and has held that in a suit for eviction, the tenant was not competent to challenge the partition between the family members of the landlord. Even if sister of the plaintiff had not been impleaded as a party in the aforesaid partition suit such decree could be challenged only by the person, who is affected by the same.
In the opinion of this Court also when the girl herself has not challenged the aforesaid decree it would not be open for the tenant to question the decree of the partition suit in the eviction suit specially when there was a compromise decree. In Rajendra Prasad (supra) a Bench of this Court has held that even one of the co-sharers could maintain the eviction suit as a landlord if he is covered and comes within the 9 definition of landlord provided in section 2(d) of the Act. Even the pendency of the partition suit amongst the others will not affect the right of co- owner landlord to maintain such suit. In yet another decision rendered in Gajendra Pd. Singh(supra) a Bench of this Court has held that in a suit filed for eviction for personal necessity, if the tenant admits himself as a tenant, he cannot question the title of the plaintiff with regard to the suit property.
The trial court has taken notice of the deposition of the petitioner, who has been examined as D.W. 1, who has accepted in paragraph no. 16 that he is living in the house still as a tenant for a reason that though there was a mahadnama in favoaur of his father but no sale deed has been executed as yet. Similarly, it is also well settled that mere filing of a suit for specific performance of contract cannot be set as a barrier for eviction of a tenant because even if there was an agreement for sale, the defendant was yet to succeed in acquiring the title of the property. In case, he 10 succeeds in such suit he would be entitled to restoration of possession after acquiring the title. In this regard a decision Gajendra Pd. Singh (supra) has been relied upon by the opposite party. This Court is also in a full agreement with the views expressed by the learned Single Judge. So far the question of personal necessity of the plaintiff is concerned that has also been dealt in detail by the trial court. The plaintiff has come up with a clear case that the suit premises has been allotted to him as per the compromise decree in a partition suit and thereafter he has been compelled to leave the house in which he was earlier living with his family as the same has been allotted to his father. Since the partition suit had been filed after dispute within the family and thereafter compromise has taken place, the contention of the defendant - petitioner that the plaintiff could still reside in the same house in which he was earlier residing with the father and other family members, is not tenable. The plaintiff has also stated that he is living in a rented house and he has also given the name of 11 the landlord in whose house he is residing as a tenant. The concerned landlord Vijay Kumar Beyahut (P.W. 2) has been examined as witness and has accepted the aforesaid fact. Therefore, the contention of the petitioner that the plaintiff was not paying any rent to the aforesaid person as he was relative of plaintiff is also not tenable. It cannot be presumed that a person cannot live in a house of the distant relation as a tenant on payment of rent.
Since the decree of partition itself has been brought on record, the non examination of father of the plaintiff does not cast any cloud over the claim of the plaintiff. Thus, I do not find any illegally or impropriety in the finding recorded by the court below with regard to personal bonafide requirement of the suit premises in favour of the plaintiff. Trial Court has also gone into the question of partial eviction and has found that was not tenable. Learned counsel for the petitioner could not point out any illegality in the aforesaid finding also and has not resisted that finding in any serious manner as it was the case of the defendant 12 himself that looking to the dimension of the premises and availability of only one ingress or egress, the partial eviction would not be possible. Thus, no purpose would be served by the partial eviction of the parties.
In above view of the matter, I do not find any illegality or error in the impugned order / judgment of eviction passed by the trial court warranting the interference of this Court in its revisional jurisdiction.
As a result this civil revision fails, and is, accordingly dismissed.
(Dr. Ravi Ranjan, J.) Spd/-