Patna High Court
Abdul Hamid vs Sameema Khatoon on 1 September, 2010
Author: Ravi Ranjan
Bench: Ravi Ranjan
CIVIL REVISION No.1504 OF 2009
(Against the order dated 8th of October, 2007 passed by the Munsif-I,
Vaishali at Hajipur in Eviction Suit No.14 of 2004).
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ABDUL HAMID, SON OF MD. HALIM, RESIDENT OF MOHALLA-
NOON GALI, S.D.O. ROAD, HAJIPUR, DISTRICT-VAISHALI.
.................................(TENANT)...........................PETITIONER.
Versus
SAMEEMA KHATOON, WIFE OF LATE NAKI AHMAD, RESIDENT
OF MOHALLA-HASTIPUR, P.S. HAJIPUR SADAR, DISTRICT-
VAISHALI, PRESENTLY RESIDING AT MOHALLA-BEGTAJ KHAN
ALIAS POKHRA GANESH SINGH ROAD, NAKI MARKET,
HAJIPUR, DISTRICT-VAISHALI.
.................................(PLAINTIFF)...............OPPOSITE PARTY.
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For the Petitioner : M/s. Shrinandan Prasad Singh & Ashok
Kumar No.1, Advocates.
For the Opposite Party : M/s. Mahesh Narayan Parbat, Ved Prakash
Srivastava, Mritunjay Kumar, Sanjay
Kumar Jha, Praveen Prabhakar and Mrs.
Nutan Sahay, Advocates.
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PRESENT
THE HON'BLE MR. JUSTICE DR. RAVI RANJAN Dr. Ravi Ranjan,J. This Civil Revision is directed against the order dated 8th of October, 2007, passed in Eviction Suit No.14 of 2004 by the Munsif-I, Vaishali at Hajipur, directing the defendant-petitioner to vacate the suit premises and hand over the vacant possession of the same to the plaintiff-opposite 2 party.
2. The plaintiff-opposite party brought Eviction Suit No.14 of 2004 for eviction of the defendant-petitioner from the suit premises which is a shop and stands fully described in the schedule of the plaint.
3. Shorn of unnecessary details, the relevant facts necessary for consideration of this case as set out in the plaint are as under:
It has been stated in the plaint that the husband of the plaintiff, namely, Naki Ahmad, had constructed the market, which is known as Naki Market and in the ground floor of which some shops are there, which have been rented out and the first floor is used as residence of the plaintiff and her family. After the death of the husband of the plaintiff, it is alleged in the plaint, that there had been litigation in the family regarding the market in question including the suit premises and the case which was numbered as Partition Suit No.123 of 1986 was decreed in favour of the plaintiff. The aforesaid fact was communicated to the defendant and, thereafter, the defendant, who was earlier paying rent only to the extent of 1/4th to the plaintiff-opposite party, started paying the entire rent. However, subsequently, he stopped payment. 3 It is further stated that the said shop had been rented out earlier to the defendant-petitioner by her husband but now, after his death, the plaintiff needs that shop for her own business so that she could meet the expenses of the family. Thus, it has been stated that the plaintiff requires the suit premises for her personal use. Since the defendant-petitioner did not pay any heed to the request of the plaintiff-opposite party for evicting the suit premises, under the circumstances, the eviction suit was filed. Though the plaintiff has stated that the defendant-petitioner has become defaulter also but the suit has only been brought on the ground of her personal requirement.
4. The defendant appeared and contested the suit by filing written statement and leading evidence. The case of the defendant-petitioner is that the plaintiff-opposite party was only entitled for 1/4th share as the remaining 3/4th belongs to the other co-sharers of her late husband. Secondly, it has been stated that the plaintiff is the second wife of Late Naki Ahmad and from her late husband the plaintiff is not having any issue. Thus, it has been alleged that for maintenance of sons and daughters not having been born out of her wedlock with Late Naki Ahmad, the plaintiff cannot claim any bonafide necessity 4 for eviction of the tenant. It has further been stated that other heirs of Naki Ahmad are alive and the suit promises is in joint possession with them. Thus, in above view of the matter, since other co-sharers and heirs of Late Naki Ahmad have not been impleaded as a party in the present suit, the plaintiff alone has no cause of action for filing this case.
5. The trial court framed the six issues and after consideration of the materials on record has recorded the following findings:
(i). Eviction suit filed is maintainable.
(ii). Plaintiff has got valid cause of action for bringing up the suit.
(iii). There is relationship of landlord and tenant between the plaintiff and the defendant.
(iv). Plaintiff requires the suit premises for her own bonafide personal requirement.
(v). And, thus, she is entitled for eviction of the tenant.
(vi). No purpose would be served by partial eviction of the tenant from the suit premises.
6. I have heard learned counsel appearing for the parties and perused the records of this case.
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7. Learned counsel appearing for the petitioner submitted that the defendant was paying 1/4th rent to the plaintiff as she was only entitled for 1/4th share thereof and remaining 3/4th rent was being was given to the other co- sharers of the husband of the plaintiff. Learned counsel further submitted that there is no evidence on record to show that even after the result of the Partition Suit No.123 of 1986, the defendant-petitioner started paying the entire rent to the plaintiff. It is next submitted that the sons and daughters of the plaintiff are from her first husband, namely, Khursheed Ahmad and not from the Late Naki Ahmad to whom the property belonged. Thus, it was contended that for their maintenance and benefit, the plaintiff cannot claim eviction of the defendant on the ground of personal necessity. It is also contended that the sons and daughters of the plaintiff are unemployed but they are studying and, therefore, there is no requirement of the shop concerned for their employment. Thus, in the above view of the matter, it is contended that the impugned order directing eviction of the suit premises is fit to be set aside.
8. Learned counsel appearing for the plaintiff- opposite party, on the other hand, contended that the decree 6 passed in the aforesaid Partition Suit No.123 of 1986 clearly shows that the entire building, which includes the suit premises, had been held to be belonging to the plaintiff and it has been stated in the plaint that during the pendency of such suit the plaintiff was forced by defendant to accept only 1/4th of the entire rent. However, after the decision of the aforesaid suit, all the tenants including the petitioner started paying rent to the plaintiff. However, subsequently, he stopped payment. It is, thus, submitted that in the above view of the matter, since the ownership of the suit premises has already been decided in favour of the plaintiff coupled with the fact that the defendant himself says that he was paying 1/4th rent of the total rent to the plaintiff, he does not have any right to question the title of the plaintiff. It has further been urged that even a co-sharer stands included in the definition of „landlord‟ as provided in Section 2(f) of the Bihar Buildings (Lease, Rent and Eviction) Control Act,1982 (hereinafter referred to as "the Act"). Even though the defendant admits paying 3/4th rent to the other co- sharers and he is in talking terms with them, however, none of them has made any endeavour to intervene in the suit refuting the claim of the plaintiff. Learned counsel urged that it is well settled proposition of law that the tenant cannot question the 7 decree passed in the Partition Suit and challenge the title of the landlord. Learned counsel placed reliance upon a decision of this Court rendered in Md. Ainul Haque @ Annu Mian Vs. Ashish Kumar @ Trikal Das {2007(1) PLJR 180} for the aforesaid purpose. Learned counsel further contended that once the property has been given to the plaintiff in a partition suit, the title of the plaintiff stands confirmed and the defendant-tenant cannot question the bonafide necessity of the plaintiff on the ground that her sons and daughters are not born out of the wedlock with the original title holder. Lastly, it has been submitted that the plaintiff has proved her bonafide requirement regarding the suit premises by leading evidence and, as such, the defendant was fit to be evicted from the suit premises on the aforesaid ground. So far as the partial eviction is concerned, it is submitted that though none of the parties have stated the claim that their purpose would be served by partial eviction of the defendant from the suit premises, the trial court has considered this issue and has come to the conclusion that 8 ft. wide premises cannot be divided in a manner so that the personal necessity of the plaintiff could be served and requirement of the defendant is also satisfied.
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9. I find substance in the submissions made on behalf of the plaintiff-opposite party. Altogether three witnesses have been examined on behalf of the plaintiff and three witnesses on behalf of the defendant also. The trial court has considered the material on record in detail and also the submissions raised on behalf of the parties and has come to the conclusion that the defendant, though claims that he was only paying 1/4th of the total rent to the plaintiff, accepts the plaintiff as one of the co-sharers and, thus, the landlord. In view of the decree in favour of the plaintiff holding the plaintiff as the owner of the building which also consists of the suit premises, the tenant cannot question the same and challenge the ownership of the plaintiff. Thus, it has to be held that on account of the decree passed in Partition Suit No.123 of 1986 the plaintiff is the owner of the suit premises and, thus, is the landlord. Once the plaintiff is accepted as the owner of the suit premises, the tenant cannot question the bonafide requirement of the plaintiff on the ground that she is not having any issue from her late husband, namely, Naki Ahmad rather sons and daughters were from her first husband, namely, Khursheed Ahmad. Thus, it has to be held that the plaintiff is owner and title holder of the suit premises and in 9 view of the fact that the defendant was paying rent to her and other co-sharers, as alleged by the defendant, have not raised any objection in the suit regarding the same. It has correctly been held that there existed a landlord and tenant relationship between the parties. Learned counsel appearing for the petitioner could not demonstrate from the materials on record that there is no sufficient evidence led on the part of the plaintiff regarding her bonafide personal necessity of the suit premises or any other error in the findings recorded by the trial court. It is a clear cut case of the plaintiff that though there are other shops earlier rented out to the other tenants, a shop rented to the defendant is best suitable for meeting her personal requirement. Learned counsel for the petitioner was not able to show any error in such conclusion arrived at by the court below. It is well settled that if the tenant is not claiming independent title of the suit premises, he cannot question the ownership of the landlord and specially, in this case when the matter has finally been set at rest in the concerned partition suit by decreeing the suit in favour of the plaintiff. That apart, learned counsel appearing for the petitioner could not show any error recorded by the court below regarding partial eviction. After consideration of the material on record, the 10 court concerned has come to the conclusion that no purpose would be served by partial eviction of the tenant from the suit premises.
10. In the above view of the matter, I do not find any ground warranting interference in the impugned order passed under Section 14(8) of the Act. Accordingly, this Civil Revision is dismissed. However, there would be no order as to costs.
( Dr. Ravi Ranjan, J) Patna High Court, Patna.
Dated: The Ist of September, 2010. Pradeep Srivastava/N.A.F.R.