Patna High Court
Mahesh Kumar vs Dhirendra Kumar Sinha And Ors on 19 October, 2022
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.119 of 2016
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Mahesh Kumar, Son of Late Surendra Narayan Sinha, Resident of Mohalla -
Laxmi Sagar Colony, P.S. L.N.M.U. Campus, District - Darbhanga
... ... Petitioner/s
Versus
1. Dhirendra Kumar Sinha
2. Birendra Kumar Sinha, Both sons of Late Mahendra Narayan Sinha
3. Meena, W/o Kamal Narayan
4. Manju Devi, W/o Rajendra Prasad
5. Ranju Devi, W/o Kailash Bihari, All are D/o Mahendra Narayan Sinha, All
R/o Mohalla - Laxmi Sagar Colony, P.S. L.N.M.U. Campus, District -
Darbhanga
6. Ganesh Kumar, S/o Late Surendra Narayan Sinha
7. Kumari Guria
8. Kumari Jyoti, Both are D/o Late Surendra Narayan Sinha, All R/o Mohalla -
Laxmi Sagar Colony, P.S. L.N.M.U. Campus, District - Darbhanga
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Baidya Nath Thakur, Advocate
For the Respondent/s : Mr. Nand Kishore Singh, Advocate
Mr. Abinash Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
CAV JUDGMENT
Date : 19-10-2022
Heard learned counsel for the parties.
2. This Civil Revision application has been preferred
under Section 14 (8) of the Bihar Buildings (Lease, Rent and
Eviction) Control Act, 1982 against the Judgment and order
dated 04.04.2016 passed in Eviction Suit No. 17 of 1998 by the
2nd Munsif, Darbhanga whereby the suit has been decreed on
contest in favour of plaintiffs and the defendants have been
directed to vacate the suit premises within two months and to
Patna High Court C.R. No.119 of 2016 dt.19-10-2022
2/12
hand over possession to the plaintiffs, otherwise they will be
entitled to the same by the process of the court.
3. The original plaintiff Sri Mahendra Narayan Sinha
(after his death his legal heirs substituted) filed suit for eviction
of the defendants (wife, sons and daughters of his brother
Surendra Narayan Sinha) from the suit premises stating that, one
Gobardhan Lal had three sons namely, Nagendra Narayan Lal,
Surendra Narayan Sinha and Mahendra Narayan Sinha. The
plaintiff claimed that in the family arrangement of 1966 the suit
property fall in the share of the plaintiff. After death of his
brother Surendra Narayan Sinha in 1989 as help plaintiff
inducted the defendants in the suit premises and later on
monthly rent of Rs. 50/-, had been fixed and paid from
01.01.1992. However, the defendants started laying false and vexatious claim over the suit land.
4. The further case of the original plaintiff was that after retirement from railway he wants to start Cottage Industry for source of income for which the suit premises and land was suitable and there is urgent need of the suit premises. The plaintiff asked the defendants to vacate the suit premises but they failed to do so.
5. Hence, the plaintiff filed Eviction Suit on the Patna High Court C.R. No.119 of 2016 dt.19-10-2022 3/12 ground of personal necessity stating that his need and requirement cannot be satisfied by partial eviction of the defendants from the suit premises consisting of one room, small kitchen and one verandah.
6. The defendants filed an application seeking leave to contest the eviction suit contending that partition never took place among the heirs of Gobardhan Lal with respect to the suit property. It is still joint and all have equal share therein. It is further stated that no family arrangement ever took place among the heirs of Gobardhan Lal and the defendants were never inducted as tenants and no rent was fixed or paid to the plaintiffs. It is further stated that defendants are residing in the suit premises in their own right as they have 1/3rd share in the same. Municipal holding receipts are granted in the joint names of Nagendra Narayan Lal, Surendra Narayan Sinha and Mahendra Narayan Sinha. The suit property is joint and undivided and there is no relationship of landlord and tenant between the parties and there is no personal need of the suit property as claimed by the plaintiff.
7. The leave to contest application filed by the defendants was treated as written statement. Both the parties led their evidences, and the Court below after hearing the parties Patna High Court C.R. No.119 of 2016 dt.19-10-2022 4/12 vide order dated 04.04.2016 decreed the suit and directed the defendants to vacate the suit premises within two months and hand over possession thereof to the plaintiff.
8. Learned counsel for the petitioner submits that the impugned order is bad in law on the ground that there is no landlord and tenant relationship between the parties. One co- sharer cannot bring a suit for eviction against another co-sharer. He has further submitted that the finding of the court below in the impugned Judgment and conclusion is contradictory and there is no finding on partial eviction, accordingly, impugned Judgment is not sustainable. Accordingly, prayed to set aside the impugned Judgment passed by the learned court below.
9. It is also submitted that in the partition Suit No. 97/92 the suit premises of Eviction Suit No. 17/98 was also one of the subject matter of partition in which original plaintiff of Eviction Suit was defendant no. 8 whose defence is that by amicable family settlement of 15.05.1966 arrived at between three sons of Gobardhan Lal in which entire schedule "ka" property (inclusive of suit premises in Eviction Suit No. 17/98) fall in the share of defendant no. 8, which was denied by the plaintiff therein that the memorandum of partition propounded by Mahendra Narayan Sinha are forged and fabricated and there Patna High Court C.R. No.119 of 2016 dt.19-10-2022 5/12 was no partition took place but they separated themselves in mess and business but the suit schedule properties remained joint between them and they are living in their residential house as per their convenience. It is submitted that in the said partition suit no. 97/92 the Trial Court given finding that the story of family arrangement and amicable partition between sons of Gobardhan Lal is not correct and the same is cock and bull story and the family arrangement is not genuine rather it is forged and the suit property is still joint between the parties and the parties were held entitled to their respective share in the suit land. The suit was decreed on contest vide Judgment and Decree dated 06.09.2003 and 18.09.2003 respectively. Aggrieved by the said judgment and decree Tara Devi, wife of Mahendra Narayan Sinha and Others filed partition Appeal No. 36 of 2003 and the Appellate Court vide Judgment and Decree dated 11.07.2007 and 21.07.2007 respectively allowed the appeal and the Judgment and Decree of the Trial Court were set aside. The petitioner filed Second Appeal No. 221 of 2007 before this Court which was admitted on 04.08.2008 and the same is pending.
11. Accordingly, the issue related to family partition and jointness of property is subject matter of Partition Suit No. Patna High Court C.R. No.119 of 2016 dt.19-10-2022 6/12 97/19 (30/97), Partition Appeal No. 36 of 2003 and S.A. No. 221 of 2007 (pending in this Court) and the findings of Appellate Court is concluded unless the said Judgment is set aside by this Court.
12. Learned counsel for the respondents submits that the learned court below has passed the impugned judgment on the basis of the evidence on record and there is no illegality or unreasonableness in the impugned Judgment which required to be interfered by this Court in its revisional jurisdiction. He has further submitted that this court under the Revisional jurisdiction cannot reappreciate the evidence to take different view and to correct the finding of facts.
13. Learned counsel for the respondents referred and relied on the Judgment dated 04.02.2019 of Hon'ble Supreme Court in Tek Singh Vs. Shashi Verma and Anr. (Civil Appeal No. 1416 of 2019) wherein in paragraph -7 it is held that " it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. In the said Judgment the Hon'ble Supreme Court quoted the earlier Judgment in D.L.F. Housing & Construction Company Private Limited, New Delhi Vs. Sarup Singh and Others (1970) 2 SCR 368 wherein it has been observed that while Patna High Court C.R. No.119 of 2016 dt.19-10-2022 7/12 exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the court to try the dispute itself.
14. The law is also well settled that Section 115 CPC is not directed against the conclusion of law or fact in which the question of jurisdiction is not involved. The words "illegally" and with 'material irregularity' do not refer to the decision arrived at but merely to the manner in which it is reached. The errors in this clause relates either to breach of some provision of law or to material defects of procedure affecting the ultimate decision.
15. It is well settled that Bihar Rent Act is a Special Act providing for speedy disposal of eviction suit on certain grounds enumerated therein. Under the said Act eviction suit is required to be tried under summary procedure provided under the Act. To succeed in the eviction suit under the Bihar Rent Act the landlord/plaintiff is require to prove contract of tenancy between plaintiff and the tenant and also the ground on which the eviction is sought. In such a suit the Rent Court is not required to go into the serious question of title otherwise the purpose of the Act would stand frustrated. (SCC (2004) 1 PLJR Patna High Court C.R. No.119 of 2016 dt.19-10-2022 8/12 SC 28 Radha Devi Vs. Deep Narayan Mandal & Others).
16. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta SC 2507 AIR 1999, the Hon'ble Supreme Court held that the revisional jurisdiction exercisable under the said proviso is not so limited as in under Section 115 CPC nor so wide as that of an Appellate Court and the High Court cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts.
17. The circumscribed scope of revisional jurisdiction under Rent Control Act has now been well settled by the Constitution Bench decision of the Apex Court in the case of Hindustan Petroleum Corporation Ltd. vs. Dilbahar Singh 2014 (9) SCALE 657. In view of the dictum of the Apex Court, the revisional court is only to see whether the Judgment and order of eviction has been passed according to law.
18. On perusal of impugned Judgment, it appears that the learned court below after discussing the evidence on record given finding that on the basis of aforesaid facts and pleading of both parties and evidence oral and documentary produced by them and in the view of the circumstance, it is proved that plaintiffs and defendants are co-sharers and the basis of case Patna High Court C.R. No.119 of 2016 dt.19-10-2022 9/12 which is memorandum of family partition dated 15.05.1966 is forged or genuine and there is any relationship of landlord- tenant relationship between plaintiffs and defendants on these point both the parties have not produced any documentary evidence. On this by oral evidence it is clarified by the plaintiff that the property received in partition was given on rent @ Rs. 50/- per month to opposite party.
19. Without any analysis of evidence the court below further given finding that plaintiffs has reasonable and bonafide personal requirement of the suit premises and by eviction of opposite party plaintiffs personal requirement shall be fulfilled. The concluding finding of the impugned Judgment is set out hereinbelow:-
"mijksDr rF;ksa rFkk mHk;i{kksa ds vfHkopuksa ,oa muds }kjk izLrqr fd, x, ekSf[kd ,oa nLrkosth lk{;ksa ,oa bl okn fd ifjfLFkfr;ksa ds ifjis{; esa ;g fl) gksrk gS fd okfnx.k ,oa izfroknhx.k nksuksa vkil esa lg&va"k/kkjh gS ,oa okn dk vk/kkj tks fnukad 15-05-1966 dks ikfjokfjd&Kkiu }kjk fu'ikfnr gqvk dwVjfpr ;k okLrfod gS lkFk gh okfnx.k ,oa izfroknhx.k ds fcp dksbZ edku&ekfyd ,oa fdjk;nkj dk laca/k gS bl fcanq ij mHk;i{k dksbZ nLrkosth lk{; izLrqr ugha fd;k gSA blij oknh us ekSf[kd lk{; ls Li'V dj fn;k gS fd caVokjk esa izkIr laifRr dks izfroknh dks fdjk;k 50@&#i;k izfr ekg ij fn;kA mHk; i{kksa ds fon~oku vf/koDrk dks foLrkj ls lquk vkSj vfHkys[k dk voyksdu fd;kA bl izdkj mijksDr ifjfLFkfr;ksa] nksuksa i{kksa ds vfHkdFku ,oa muds n~okjk izLrqr fd, x, lk{;ksa ds foospu ,oa ekuuh; U;k;ky; ds U;k; fu.kZ; ls eSa bl fu'd'kZ ij igq¡prk gw¡ fd oknhx.k dks fookfnr ifjlj fd ;qfDr;qDr ,oa lnHkkouk iw.kZ dkj.kksa ls futh vko";drk gSa vkSj izfroknhx.k ds fu'dk"ku ls okfnx.k ds futh vko";drk fd iwfrZ gksxhA vr% izLrqr okn~inksa dks Patna High Court C.R. No.119 of 2016 dt.19-10-2022 10/12 okfnx.k ds i{k esa fuLrkfjr fd;k tkrk gSA''
20. It appears that there is no material that a tenancy was created between the parties by a document nor conduct of the parties established that there is relationship of landlord and tenant between the parties. It is also no sufficient material to conclude that plaintiff has reasonable and bonafide requirement for personal necessity of plaintiff.
21. The sine qua non for granting the relief in the suit, under the Act, is that between the plaintiffs and the defendant the relationship of "landlord and tenant" should exist. When it is found that the relationship of "landlord and tenant" did not exist between the parties, further enquiry into the title of the parties is not warranted. The scope of the enquiry before the court is limited to the question whether the grounds for eviction of defendant had been made out under the Act. It is now well settled that a plea of personal necessity made by a landlord should reflect his bonafide requirement and should not be a pretext for seeking eviction of a tenant with a sole intention of a replacement.
22. The approach of learned Trial Court is also erroneous in giving the finding with respect to personal requirement of landlord. To curb the tendency of landlord's greed to throw out tenants paying lower rent in the name of Patna High Court C.R. No.119 of 2016 dt.19-10-2022 11/12 personal occupation and rent out the premises in his possession at the market rate, the Rent Act was enacted and, therefore, it becomes the duty of the court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same.
23. Under the proviso of Section 11 (1) (C) of the B.B.C. Act it is also mandatory on the part of the court to consider the issue of partial eviction by recording specific finding as with regard to reasonable requirement of such occupation of the plaintiff landlord being satisfied by evicting the tenant from the part only of the building. It is now well settled that under B.B.C. Act on ground of personal necessity cannot be allowed without recording a finding on partial eviction.
24. According to the settle law, the court while considering the partial eviction has to consider firstly the extent of the premises and then to consider the reasonable requirement of the landlord which has to be determined on the basis of the evidence on record and not on the basis of mere desire or wish of the landlord and thereafter the court has to consider as to whether the said reasonable requirement would be satisfied substantially and not fully by partial eviction.
Patna High Court C.R. No.119 of 2016 dt.19-10-2022 12/12
25. On the basis of aforesaid discussion, this Civil Revision is allowed and the impugned Judgment and Order dated 04.04.2016 passed by the Munsif 3rd, Darbhanga in Eviction Suit No. 17 of 1998 is hereby set aside and the case is remitted back to the court below to dispose of the matter afresh in accordance with law after giving reasonable opportunity to the parties including to lead further evidence in regard to question of partial eviction.
(Sunil Dutta Mishra, J) khushbu/-
AFR/NAFR N.A.F.R. CAV DATE 31.08.2022 Uploading Date 19.10.2022 Transmission Date N/A