Patna High Court
Som Nath Mukherjee vs Awdhesh Kumar Sinha on 18 September, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.31 of 2011
======================================================
Som Nath Mukherjee, Son of Viswanath Mukherjee, R/o Muhalla-
Balbhadrapur, New Market, Commercial Cawk, , P.O. and P.S.- Laheriasarai,
District- Darbhanga.
... ... Petitioner/s
Versus
1.1. Atul Kumar Sinha, Son of late Awdhesh Kumar Sinha, R/o New Market,
Commercial Chawk, Laheriasarai, Darbhanga.
1.2. Abhay Kumar Sinha, Son of late Awdhesh Kumar Sinha, R/o New Market,
Commercial Chawk, Laheriasarai, Darbhanga.
1.3. Asim Kumar, Son of late Awdhesh Kumar Sinha, R/o New Market,
Commercial Chawk, Laheriasarai, Darbhanga.
1.4. Anita Sinha, D/o of late Awdhesh Kumar Sinha, R/o New Market,
Commercial Chawk, Laheriasarai, Darbhanga.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. R. S. Ganguly, Advocate
For the Opposite Party/s : Mr. Jitendra Kishore Verma, Advocate
Mr. Shreyash Goyal, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 18-09-2025
Heard Mr. R. S. Ganguly, learned counsel for the
petitioner and Mr. Jitendra Kishore Verma assisted by Mr.
Shreyash Goyal, learned counsel for the opposite parties.
2. This Civil Revision application has been filed under
section 14(8) of the Bihar Building (Lease, Rent and Eviction)
Control Act, 1982 (hereinafter referred to as BBC Act) against the
judgment and decree dated 31.08.2010 passed by learned Munsif-
1st, Darbhanga in Eviciton Suit No. 9 of 2004 by which eviction of
Patna High Court C.R. No.31 of 2011 dt.18-09-2025
2/29
the defendant/petitioner has been sought from the suit premises on
the ground of personal necessity alone, which was decreed by the
learned Munsif- Ist, Darbhanga upon finding that there exists
relationship of landlord and tenant between the plaintiff and
defendants and that the plaintiff has been able to prove the
personal necessity as pleaded and also decided the question of
partial eviction in favour of plaintiff.
3. The case of the plaintiff is that the land and house
bearing Holding No. 33(old) / 673 (New) is standing over
Municipal Plot no. 29272. The description of the suit land was
mentioned in Schedule-1 of the plaint which was acquired by Late
Bhuwaneshwar Prasad, the father of the plaintiff, by registered sale
deed dated 07.11.1966 having area of 1 katha 11 dhurs, out of
which 1 katha 6 dhurs is the suit premises fully described in
Schedule-1 of the plaint which was possessed and recorded in the
name of one Most. Sarojni Devi. After her death, Vishwanath
Mukharjee son of Sarojni Devi sold the aforesaid property 1 katha
11 dhurs to Bhuwaneshwar Prasad, who is the father of the
plaintiff vide Exhibit-2 and put the father of the plaintiff in
possession. The defendant nos. 1 to 3 are sons of Late Vishwanath
Mukharjee whereas defendant no. 4 is his widow. On the same day
i.e. on 07.11.1966, Kirayanama (Exhibit-3) regarding 1 katha 6
Patna High Court C.R. No.31 of 2011 dt.18-09-2025
3/29
dhurs out of purchased property was executed in favour of
defendant no. 1, Shivnath Mukharjee in proof of tenancy on the
pretext that the sister of defendant no. 1 was to be married and
they have no shelter to live at that time and thus month to month
tenancy lease was executed. The said Kirayanama was witnessed
by Vishwanath Mukharjee, the father of defendant nos. 1 to 3 and
husband of defendant no. 4 and one of his son namely, Bhola Nath
Mukharjee, who had died subsequently. The Kirayanama was for
month to month tenancy for the monthly rent of Rs. 43/-.
4. Further case of the plaintiff is that the defendant no. 1
(Shivnath Mukharjee) failed to pay the arrears of rent and became
the defaulter and as such, the plaintiff instituted Title Suit No. 3 of
1974 against defendant no. 1 and his father (Vishwanath
Mukharjee) for eviction of the defendants as well as for recovery
of arrears of rent. Ultimately, the said suit was compromised and
the compromise petition was signed by defendant no. 1, Shivnath
Mukharjee and his father, namely, Vishwanath Mukharjee on
20.11.1976(Exhibit-8) and by the said compromise, defendant no.
1 and his father acknowledged and admitted the relationship of landlord and tenant between the parties and it was categorically admitted that defendant no. 1 is the tenant of the plaintiff and they compromised to pay the entire arrears of rent. The said suit was Patna High Court C.R. No.31 of 2011 dt.18-09-2025 4/29 compromised and the suit was disposed of in terms of the compromise by order dated 22.11.1976 (Exhibit-7) by learned Additional Munsif-1st, Darbhanga and decree was prepared on 06.12.1976 (Exhibit-7/A). Since compromise, the relation between the plaintiff and defendants was cordial. Recently, the intention of the defendant became malafide and as such, they intentionally failed to make payment of rent. It is further pleaded that the rent of the suit premises was time to time enhanced nominally and the rent is Rs. 100/- per month because of cordial relationship though the rent should have been more according to the market rate.
5. It is further pleaded that the wife of defendant no. 1 purchased another small house but defendant no. 1 also sometimes lived with his brother and mother in the suit premises but neither he nor his brother or mother are paying rent to the plaintiff since January, 2002. Ultimately, the plaintiff gave registered notice for vacating the premises to the defendants to which a joint reply of all the defendants came but the defendants in the reply did not deny the relationship of landlord and tenant. The plaintiff has further pleaded that due to private arrangements among the brothers of the plaintiff, the premises has been allotted to the plaintiff and the plaintiff having three sons and number of grand children, was in good faith and had bonafide need of the suit premises for suitable Patna High Court C.R. No.31 of 2011 dt.18-09-2025 5/29 accommodation of his sons and grand children by making suitable new construction (residential house) and for passage according to the need for comfortable living as the present accommodation was not sufficient for his family. The plaintiff several times asked the defendants to vacate the suit premises but they did not pay any heed. Hence the necessity of filing of the suit arose.
6. On summon, the defendants appeared and filed affidavit for allowing them to contest the suit. After hearing both the parties, on the affidavit of the defendants, leave to contest the suit was allowed and subsequently joint written statement was filed inter alia challenging the suit as barred by limitation, bad for non-joinder and misjoinder of parties, maintainability of the suit etc. The defendants denied the relationship of landlord and tenant stating that it is false to say that the plaintiff is owner of the suit land vide registered sale deed dated 07.11.1966 as Vishwanath Mukharjee has no right to sell the lands as he has other brothers and sisters alive. It is further pleaded that the land in question, along with other land measuring 5 katha were acquired by Sarojni Devi, out of which Sarojni Devi had sold 3 katha 9 dhurs in her lifetime to different persons. She remained in possession with 1 katha 11 dhurs of land where she was living with four (4) sons and one (1) daughter. Sarojni Devi wife of Late Ras Bihari Mukharjee Patna High Court C.R. No.31 of 2011 dt.18-09-2025 6/29 died in the year 1960 leaving behind four (4) sons and one (1) daughter. After the death of Sarojni Devi, all four (4) sons and daughter came in actual peaceful possession over the property mentioned in Schedule-1 of the plaint. It is further pleaded that one son, namely, Pulin Bihari Mukharjee died in the year 1962 leaving behind his widow, namely, Suboudhni Devi and two sons namely, Ramendra Nath Mukharjee and Kashinath Mukharjee, who are still alive. It is also submitted that another son, namely, Kunj Bihari Mukharjee and Vaidyanath Mukharjee died leaving behind their heirs and legal representatives. It is further submitted that Vishwanath Mukharjee died leaving behind seven (7) sons and two (2) daughters. Therefore, all the branches of Sarojni Devi were in occupation of the disputed premises since her lifetime and after death, they came in actual physical possession over the premises. They are joint in possession and maintain the premises jointly and still the property is in the joint possession of all the branches of Late Sarojni Devi. It is pleaded that the plaintiff purchased 1 katha 11 dhurs land from Vishwanath Mukharjee, who had no right to sell, not to make any transaction regarding the land as at that time, other heirs of Sarojni Devi were alive and so the plaintiff had no right, title over the premises of Schedule-1 land of the plaint. The said property was not the exclusive property of Vishwanath Patna High Court C.R. No.31 of 2011 dt.18-09-2025 7/29 Mukharjee rather it had equal right title of all the heirs of Sarojni Devi. The defendants are residing in the premises with their own exclusive right, title and not as tenants. The plaintiff never came in possession over the premises and the relationship of landlord and tenant is baseless and manufactured one.
7. On the basis of pleadings and upon consideration of rival contentions, the following issues were framed by the trial court:-
I. Whether the suit as framed and filed by the plaintiff is maintainable?
II. Whether the plaintiff has got right to sue or cause of action?
III. Whether there is landlord-tenant relationship between the plaintiffs and defendant or not?
IV. Whether plaintiff has got bonafide personal necessity of the suit premises?
V. Whether plaintiff required the suit premises in good faith and whether plaintiff is entitled to get the defendants evicted from the suit premises?
VI. Whether partial eviction will satisfy the plaintiff's requirement?
VII. Whether plaintiff is entitled to any other relief? Patna High Court C.R. No.31 of 2011 dt.18-09-2025 8/29
8. The plaintiff in support of his claim on the aforesaid issues, adduced altogether 7 witnesses and got exhibited 17 documents.
9. On the other hand, defendant/petitioner examined 7 witnesses. D.W.-2 is Kedar Nath Mukharjee, who is also one of the defendants. This witness has filed counter-foil of rent receipt bearing No. 39 to 45 marked as Exhibit-Y to Y/6 (Exhibit-12/AL to 12/AR by the plaintiff). No other documents have been adduced on behalf of the defendants.
10. Learned trial court after considering the materials brought on record and upon hearing the parties, decreed the suit and ordered the defendants to vacate the suit premises mentioned in Schedule-1 of the plaint standing over Municipal Plot no. 29272 and give the possession of the same to the plaintiff within three months from the date of judgment.
11. Learned trial court after considering the sale deed dated 07.11.1966 (Exhibit-2), Kirayanama dated 07.11.1966 (Exhibit-3), order dated 22.11.1976 passed in Title Suit No. 3 of 1974 (Exhibit-7) and compromise decree dated 06.12.1976 in Title Suit No. 3 of 1974 instituted by the plaintiff against the defendants and his father (Exhibit-7/A) and rent receipts (Exhibit-12 to 12/D and Exhibit-12/AL to 12/AR) and deposition of D.W.-2 (Kedar Patna High Court C.R. No.31 of 2011 dt.18-09-2025 9/29 Nath Mukharjee), one of the defendants, held that it is established that by way of registered sale deed dated 07.11.1966, the father of original defendant nos. 1 to 3 and husband of defendant no. 4 had sold the suit premises having an area of 1 katha 11 dhurs containing a pucca house along with Sahan land to the father of the plaintiff on the consideration amount of Rs. 4,000/-. The vendee Bhuwaneshwar Prasad became owner of the purchased land. Kirayanama dated 07.11.1966 (Exhibit-3) bears the signature of Vishwanath Mukharjee and Bhola Nath Mukharjee as witnesses and Shivnath Mukharjee, defendant no. 1 as executant to Kirayanama. The said Kirayanama was executed between Shivnath Mukharjee and Bhuwaneshwar Prasad with regard to the registered sale deed Exhibit-2 on the monthly rental of Rs. 43/- per month. It is further held that after execution of Kirayanama, defendants have become tenant of the plaintiff in respect of suit property, who are paying rent for the said premises accordingly. The relationship of landlord and tenant between the parties is also proved by Exhibit-7/A. The decree of Title Suit No. 3 of 1974 and deposition of D.W.-2 (defendant no. 2) in paragraph 29 also established the relationship of the plaintiff and defendants as landlord and tenant over the suit premises. Once, the tenancy of the defendant is established over suit premises, pleadings and Patna High Court C.R. No.31 of 2011 dt.18-09-2025 10/29 evidence of defendants proving continuous possession of defendants over the suit premises before or after the execution of Kirayanama dated 07.11.1966 does not affect the relationship of landlord and tenant between the plaintiff and the defendants and accordingly held that there is sufficient evidence on record which establishes that relationship between the plaintiff and the defendants regarding suit premises of the Schedule-1 land exists as the landlord and tenant.
12. So far personal requirement of suit premises is concerned, the learned trial court held that there is no denial or averments with regard to the personal necessity in the entire written statement or evidence led by the defendants. On the other hand, deposition of P.W.-1 is that he had personal necessity of entire suit premises for accommodation of his three sons and grand sons, who face difficulties in residing jointly in the plaintiff's residential house and plaintiff has bonafide necessity of the suit premises for its demolition and reconstruction. The plea of partial eviction has not been taken by the defendants in their pleadings or evidence. Thus, the learned trial court held that the plaintiff has bonafide personal requirement of the suit premises which was let out to the defendants on monthly rental at Rs. 43/- through Kirayanama dated 07.11.1966 (Exhibit-3) to accommodate his Patna High Court C.R. No.31 of 2011 dt.18-09-2025 11/29 sons and grand children for residential needs and the plaintiff is entitled to get the defendants evicted from the entire suit premises of Schedule-1 of the plaint.
13. Aggrieved by the said judgment and decree dated 31.08.2010 passed by learned Munsif-1st, Darbhanga, in Eviciton Suit No. 9 of 2004, only one of the defendant/petitioner has assailed the said judgment and decree in the present revision application.
14. Mr. R. S. Ganguly, learned counsel for the petitioner submitted that the trial court has not properly considered the evidence of the parties and therefore the findings are vitiated. It is further submitted that the learned trial court failed to consider that the sale deed dated 07.11.1966 executed by the father of the petitioner, who was not entitled to sell the suit land because the said land belonged to Sarojni Devi, who was the grand mother of the petitioner. It is further stated that in the said property the defendants were living jointly without being partitioned. The defendants' family governed by Dayabhaga School of Hindu Law. A member of Dayabhaga School of Hindu Law could sell his share only and not the entire property having other claimants. It is vehemently submitted that all the heirs of Sarojni Devi have title over the suit land. The story of compromise between the parties Patna High Court C.R. No.31 of 2011 dt.18-09-2025 12/29 was wrongly placed. It was never compromised on the ground that the plaintiff is the landlord and the defendants are the tenants. The compromise was verbal and no written documents regarding the matter of compromise was prepared and also denied the signature of defendant/petitioner. It further raised question of res-judicata that the plaintiff earlier filed Title Suit No. 3 of 1974 for eviction of the defendants and arrears of rent. The present suit was also filed for eviction on the ground of personal necessity. The same matter invoked twice for the same cause of action by the plaintiff against the same defendants over the dispute regarding same piece of land which clearly bars the second suit as per Section 11 of the Code of Civil Procedure.
15. Learned counsel for the petitioner further raised objection with regard to the Kirayanama dated 07.11.1966 which has no evidentiary value because the said Kirayanama has not been registered. If the Kirayanama/deed is not registered, it is not admissible in evidence. Reliance has been placed in the case of M/S K. B. Saha & Sons Pvt. Ltd. Vs. M/S Development Consultant Ltd reported in 2008 AIR SCW 4829. It is also submitted that unregistered Kirayanama is hit by Section 17 and 49 of the Registration Act. It is further submitted that Section 107 of the Transfer of Property Act, 1882, enshrines that a lease of Patna High Court C.R. No.31 of 2011 dt.18-09-2025 13/29 immoveable property from year to year or for any term exceeding one year or reserving a yearly rent must be made only by a registered instrument.
16. So far objection raised by the plaintiff/opposite parties with regard to the maintainability of the present civil revision application in absence of other defendants having not been made party in the present revision application is concerned, the said objection is not sustainable in view of judgment of the Apex Court in the case of Bajranglal Shivchandrai Ruia Vs. Shashikant N. Ruia & Ors. reported in AIR 2004 SC 2546, wherein, it has been held that where there are several defendants who are equally aggrieved by a decree on a ground common to all of them, and only one of them challenges the decree in his own right, the fact that the other defendants do not choose to challenge the decree, cannot render the appeal of the appealing defendants infructuous on this ground. It is submitted that the judgment clearly gives an option to all the aggrieved party to come to the appellate court but even a single aggrieved party, if wants to come to the appellate court the appeal cannot be infructuous in absence of other aggrieved party not coming to the court.
17. Learned counsel for the petitioner further submitted that the original plaintiff/opposite party had full knowledge that Patna High Court C.R. No.31 of 2011 dt.18-09-2025 14/29 the property was under mortgage and he purchased the property without the mortgage being redeemed. It is well settled principle of law that when the mortgage is not redeemed, one has no right to sell the property. Under the aforesaid facts, the sale deed dated 07.11.1966 is not a valid document of title. The learned trial court wrongly held that D.W.-2 has stated that it was his signature and recorded the same in the judgment at its paragraph 7 and also held that D.W.-2 has admitted that he was the tenant which establishes the relationship of landlord and tenant. In fact, D.W.-2 stated that it was not his signature but it is surprising to know that the learned trial court has believed that he has stated that it was his signature and also they did not pay rent to the plaintiff which is ignored by the learned trial court. D.W.-5, D.W.-4 and D.W.-6 all have deposed that the defendants were never the tenants of the plaintiff. Accordingly, the suit is wrongly decreed in favour of the plaintiff.
18. Per contra, Mr. Jitendra Kishore Verma, learned counsel for the opposite parties, at the very outset, submitted that during the pendency of the present civil revision, the judgment and decree impugned has been duly executed through Execution Case No. 2 of 2011 and the possession of the suit premises was duly delivered to the plaintiff/opposite parties on 08.04.2012 through the process of the court and the defendants/petitioner also admitted Patna High Court C.R. No.31 of 2011 dt.18-09-2025 15/29 it though they are trying to say that delivery of possession has been claimed and affected beyond the suit premises whereas the suit lands are 1 katha 6 dhurs and delivery of possession was claimed and affected on 1 katha 11 dhurs. The said misconceived submission of the defendants/petitioner is based on error of record as would be apparent from mere reading of execution petition. The delivery of possession was claimed only of 1 katha 6 dhurs and it was affected only on 1 katha 6 dhurs and not on 1 katha 11 dhurs as objection raised by the petitioner. The said objection/grievance can only be raised before Execution Court which was never raised and hence the same cannot be entertained before this Court.
19. Learned counsel for the opposite parties further submitted that so far issue regarding relationship of landlord and tenant is concerned, the sale deed dated 07.11.1966 (Exhibit-2) is admitted by which 1 katha 11 dhurs of land was sold out of which 1 katha 6 dhurs is subject matter of the suit. It is further submitted that the sale deed dated 07.11.1966 has not been challenged till date which was executed by the father of the defendant nos. 1 to 3 and husband of defendant no. 4. As such, they are estopped from challenging the same being sons and successors of Vishwanath Mukharjee, the vendors and, in fact, they have never challenged it either by filing a suit or a counter claim. Thus, the same is binding Patna High Court C.R. No.31 of 2011 dt.18-09-2025 16/29 on the defendants. The question of title as sought to be raised cannot be looked into in a eviction suit in view of the decision reported in AIR 2002 SC 136 (Rajendra Tiwary v. Basudeo Prasad & Anr.) and (2014) 2 SCC 788 (Tribhuvanshankar v. Amrutlal). The Kirayanama establishing the relationship of landlord and tenants and month to month tenancy executed on 07.11.1966 (Exhibit-3) is admitted and never challenged by seeking any substantive relief nor any expert was examined to dispute the signature. Moreover, there is absolutely no pleadings to challenge the genuineness of Kirayanama. On the basis of said Kirayanama, a eviction suit was filed bearing Title Suit No. 3 of 1974, wherein, a compromise petition dated 21.11.1976 (Exhibit-
8) duly signed by Shivnath Mukharjee and Vishwanath Mukharjee was filed admitting defendant no. 1 to be tenant of the plaintiff and promising to pay the arrears of rent and thus, the relationship of landlord and tenant was/is admitted. The said compromise petition was accepted by order dated 22.11.1976 (Exhibit-7) making the compromise petition part of the compromise decree dated 06.12.1976 (Exhibit-7/A). The said compromise decree became final and operate as estoppel against the defendants having not challenged till date. In view of these documentary evidence (Exhibits-3, 7, 7/A & 8), the relationship of landlord and tenant is Patna High Court C.R. No.31 of 2011 dt.18-09-2025 17/29 clearly established and the same has been rightly found to exist by the learned court below. The oral evidence, if any, laid to contradict the aforesaid documentary evidence and disputes the tenancy are inadmissible in evidence. D.Ws. orally denied the relationship contrary to the Kirayanama, compromise petition and compromise decree as relied upon by the petitioner, which is wholly inadmissible and unreliable and cannot be looked into in view of Section 91 & 92 read with Section 59 of the Evidence Act.
20. So far question raised by the petitioner with regard to the unregistered Kirayanama and the reliance placed on the decision reported in (2008) 8 SCC 564 (K.B. Saha & Sons (P) Ltd. v. Development Consultant Ltd.), the same is wholly misplaced as that was a case decided in different factual background where the Hon'ble Apex Court did not decide the issue of requirements of registration in a month to month tenancy and, in fact, keeping in view of the nature of dispute proceeded on the basis that the lease deed was required to be registered and absolutely the judgment deals with effect of non-registration rather than whether a month to month lease is required to be registered whereas the present lease is month to month lease temporarily granted for marriage of sister of defendant no. 1 and does not fall within the ambit of Section 17(1)(d) as the registration is Patna High Court C.R. No.31 of 2011 dt.18-09-2025 18/29 mandatory only for a lease existing one year or a lease on a year to year basis or reserving yearly rental and the present lease is only month to month tenancy lease which is not required to be compulsory registered as falling within the optional registration Clause- F of Section 18 of the Registration Act. It is further submitted that once the registration is optional, Section 49 does not help the petitioner which applies to compulsorily registerable document. The relationship of landlord and tenant has been admitted in the compromise petition and compromise order and decree i.e. Exhibit-8, 7 & 7/A and if it read together clearly establish or acknowledge relationship of landlord and tenant on the admission of the father of defendant nos. 1 to 3 and the husband of defendant no. 4 and more importantly defendant no. 1 himself and the said compromise decree being valid and not under challenge till date. The petitioner cannot dispute the relationship of landlord and tenant and this plea is not available to the defendants on account of being bound by compromise decree and Principle of Estoppel. It is vehemently submitted that there is no challenge to the compromise petition or compromise decree even in the pleadings as contained in their written statement and thus the pleading regarding admission of relationship through compromise Patna High Court C.R. No.31 of 2011 dt.18-09-2025 19/29 decree and compromise petition as made in the plaint is deemed to be admitted having not been denied specifically.
21. Learned counsel for the opposite parties further submitted that the evidence of payment of rent coupled with admission in compromise decree to pay arrears of rent due and giving right to recover it through execution, if not paid, clearly establishes relationship of landlord and tenant irrespective of non- registration of Kirayanama (Exhibit-3) and thereby a month to month tenancy will be deemed to have been recognised. Moreover, the defendant no. 1, being the tenant in view of Exhibit-3 and in view of admission in Exhibit-8, 7 & 7/A (the compromise decree), the present revision having not been filed by him rather by defendant no. 3 is not maintainable as the eviction decree against defendant no. 1 and his substituted heirs has become final.
22. The issue with regard to the personal necessity and partial eviction is concerned, the plaintiff pleaded in the plaint that the plaintiff-landlord requires suit premises bona fide for his personal necessity due to requirement of additional residential space on account of increasing family members and for separate passage and this pleadings (in paragraph 19) was not denied in the entire written statement nor any evidence was led by the defendants in that respect for denying personal necessity. Thus, in Patna High Court C.R. No.31 of 2011 dt.18-09-2025 20/29 view of principle of Order VIII Rule 3 to 5 of the Code of Civil Procedure (hereinafter referred as 'CPC'), the pleadings of personal necessity will be deemed to be admitted. The defendants/petitioner has neither placed the issue of personal necessity during argument nor placed or argued the issue of partial eviction as there is no pleadings or facts from the defendants' side on this aspect of partial eviction. The findings of the learned trial court on these issues have not been assailed.
23. Learned counsel for the opposite parties further submitted that the claim of eviction of all the four defendants as tenants was contested by all the four defendants by filing joint written statement. It was verified by all of them and affidavited by only defendant no. 1 and relying upon this joint written statement, the entire suit was contested. However, the present revision has been filed by only defendant no. 3 and not even by defendant no. 1 and none of other defendants or substituted defendants or defendant no. 1 were made party either as co-petitioners or even as opposite parties. The decree of eviction and the suit premises by its very nature was joint and indivisible. The impugned judgment is passed against all defendants treating them to be tenants and the revision by only defendant no. 3 is not maintainable and the same cannot be allowed as the judgment and decree impugned has Patna High Court C.R. No.31 of 2011 dt.18-09-2025 21/29 attained finality against other defendants i.e. substituted heirs of defendant nos. 1 as well as defendant nos. 2 & 4. The decree has attained finality with respect to other defendants and cannot be set aside in a revision at the instance of only one defendant. The benefit of principle of Order XLI Rule 4 & 33 of CPC cannot be given as a non-revisionist defendants have either been made petitioners or opposite parties and they are not on the record despite such objection having been taken in 2014 itself in reply of opposite parties. The Order XLI Rule 4 and 33 of the CPC applies only when the non-appealing party is impleaded as respondent/opposite party and not when they are not, at all, on the record. The decree as against other defendants attained finality and cannot be interfered with in a appeal or revision of one party. Reliance has been placed in the case of Rajeswari Amma & Anr. v. Joseph & Anr. reported in AIR 1995 SC 719 and Kamla Prasad Roy & Ors. v. Binod Kumar Roy reported in 1989 PLJR
426. The decision relied upon by the petitioner in the case of Bajranglal Shivchandrai Ruia (Supra) is entirely in different context where the decree was passed against two persons and was assailed by two appeals separately by two persons and one of the appeal having been dismissed, the other appeal, wherein, the appellant of the dismissed appeal was party as respondent, it was Patna High Court C.R. No.31 of 2011 dt.18-09-2025 22/29 held that the 2nd appeal does not become not maintainable or incompetent as the same could be allowed by relying Order XLI Rule 4 & 33 of the CPC as the appellant of dismissed appeal was party in another appeal and thus, was before court, but in the present case, the non-appealing defendants are not party to the revision even as opposite party. The present revision application has been filed by defendant no. 3 is not maintainable as eviction decree against defendant no. 1 and his substituted heirs has become final.
24. So far question of maintainability of suit raised by the defendants/petitioner that the plaintiff had other brothers and sisters and as such cannot alone maintain a suit, the learned counsel for the opposite parties submitted that any co-sharer can file and maintain a eviction suit irrespective of the fact that other co-sharers were not made party. This view has been settled in the case of Sharfuddin & Ors. v. Bibi Khatija & Anr. reported in AIR 1988 Pat 58 (FB). It is further pleaded that the judgment and decree passed by the trial court does not require any interference and is fit to be dismissed being devoid of any merit.
25. Having considered the rival submissions of the parties and materials available on record, it is apparent that vide sale deed dated 07.11.1966 executed by Vishwanath Mukharjee, Patna High Court C.R. No.31 of 2011 dt.18-09-2025 23/29 son of Sarojni Devi, 1 katha 11 dhurs land including the suit property was sold to Bhuwaneshwar Prasad, who is the father of original plaintiff. The defendants are the heirs of said Vishwanath Mukharjee. The said sale deed has remained unchallenged. Hence, the opposite parties are owner/landlord of the suit premises. This Court is relying upon a decision of Apex Court in case of M. M. Quasim Vs. Manohar Lal Sharma and others reported in AIR 1981 SC 1113 in which it has been held that the person in whose favour the subject property was registered/allotted would be deemed to be the landlord for the purpose of conducting eviction proceeding.
26. So far question of relationship of landlord and tenant between the parties is concerned, the Kirayanama executed on 07.11.1966 (Exhibit-3) established relationship of landlord and tenant creates month to month tenancy. On the basis of said Kirayanama, Title Suit No. 3 of 1974 was filed for eviction which was culminated into compromise decree dated 06.12.1976 (Exhibit-7/A). In the said title suit, a compromise petition was filed on 20.11.1976 (Exhibit-8) duly signed by Shivnath Mukharjee and Vishwanath Mukharjee which was part of the decree admitting defendant no. 1 to be a tenant of the original plaintiff and promising to pay the arrears of rent which was Patna High Court C.R. No.31 of 2011 dt.18-09-2025 24/29 accepted by the trial court vide order dated 22.11.1976 (Exhibit-7). The said compromise decree has remained unchallenged. The said compromise decree (Exhibit-7/A) became final and binding and operates as estoppel against the defendants. The heirs of Vishwanath Mukharjee (vendor) have no right to challenge the same in the present proceeding. The entire case of the defendants/petitioner is that he denied the title of the plaintiff. Moreover, the sale deed executed in favour of the plaintiff has not been challenged. In the case of Shamim Ara Naz and Anr. Vs. Md. Quamruddin reported in (1997) 1 PLJR 526, this Court has held that:-
"when the learned court below has come to prima- facie findings that the plaintiff established his ownership over the suit premises then the application ought not to have been rejected on the ground that there was no evidence of payment of rent by the defendant to the plaintiffs or their vendor. It is well settled that in a case where defendant denies the relationship, the court has to examine the material then available and come to a conclusion whether such denial or a dispute as to title, the plaintiff is bonafide or a mere pretence and if the court finds that there is no prima-facie merit in the said denial then the defendant can be called upon to make deposit of rent."
Patna High Court C.R. No.31 of 2011 dt.18-09-2025 25/29
27. In the present case, although the defendants/petitioner denied the title of the plaintiff and claimed their right as title holder or co-sharer, the claim of being co-sharer of the suit premises has not been declared in favour of the defendants in any court of law. The defendants also denied the plaintiff's claim of tenancy. The plaintiff's claim with regard to the tenancy has very well proved through oral evidence as well as documentary evidence i.e. Kirayanama dated 07.11.1966 (Exhibit-
3), compromise petition filed in Title Suit No. 3 of 1974 (Exhibit-
8), order of the trial court dated 22.11.1976 (Exhibit-7) and compromise decree dated 06.12.1976 (Exhibit-7/A).
28. So far question of personal necessity and question of partial eviction are concerned, it has been specifically claimed by the plaintiff that he requires the suit premises bona fide for his personal necessity due to requirement of additional residential space on account of increase of family members and for separate passage. It is apparent from the record that the defendants nowhere denied the personal necessity in the entire written statement nor any evidence was led by the defendants in that respect. The defendants nowhere pleaded that the requirement of the plaintiff would be satisfied by partial eviction. Although, it is settled law that once the personal necessity is proved, the onus shifts on the Patna High Court C.R. No.31 of 2011 dt.18-09-2025 26/29 tenant to satisfy that partial eviction would satisfy the personal necessity of the plaintiff. A reference in this regard may be made to a decision of the Hon'ble Apex Court in the case of Anamika Roy Vs. Jatindra Chowrasiya and Others reported in (2013) 6 SCC
270. The Hon'ble Supreme Court in the aforesaid decision has held that:-
"the defendants neither before the trial court or in the High Court have asserted that a portion of the premises will satisfy the requirements of the plaintiffs/appellants."
29. So far question of unregistered Kirayanama is concerned, the said Kirayanama is month to month lease which is not required to be compulsorily registered as falling within optional registration Clause-(f) of Section 18 of Registration Act and thus once the registration is optional, Section 49 does not come into play.
30. On a careful analysis of the evidence adduced by the plaintiff and the defendants, this court comes to the clear findings that the court below has rightly held that the plaintiff is entitled to bring the suit for personal necessity and is in the good faith. As such, the plaintiff requires the suit premises for his bona fide requirement for residence and this fact has not been denied by the defendants.
Patna High Court C.R. No.31 of 2011 dt.18-09-2025 27/29
31. Under such circumstances, the findings of the learned court below that the plaintiff has bona fide personal requirement of the suit premises appears to be legal and proper.
32. In view of the judgment of the Hon'ble Apex Court in the case of Kasthuri Radhakrishnan & Ors. Vs. M. Chinniyan & Anr. reported in (2016) 3 SCC 296, the revisional jurisdiction under the Rent Control Acts is circumscribed by limitation and the revisional court is only to see whether order for eviction is according to law or not. Their Lordships have observed as follows:-
"...... so far as the issue pertaining to exercise of revisional jurisdiction of the High Court while hearing revision petition arising out of eviction matter is concerned, it remains no more res integra and stands settled by the Constitution Bench of this Court in Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh [Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78 : (2014) 4 SCC (Civ) 723] . R.M. Lodha, C.J., the learned Chief Justice speaking for the Bench held in para 43 thus : (SCC pp. 101-102) "43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to Patna High Court C.R. No.31 of 2011 dt.18-09-2025 28/29 find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal.
Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."
Patna High Court C.R. No.31 of 2011 dt.18-09-2025 29/29
33. For the foregoing reasons, this Court, does not find that the learned court below has committed any error of jurisdiction and illegality in passing the impugned judgment. This Court is also not persuaded to hold that the judgment and order passed by the Court below for eviction is not in accordance with law.
34. The revision application is, accordingly, dismissed.
35. Pending Interlocutory Application(s), if any, shall stand disposed of.
(Khatim Reza, J) premchand/-
AFR/NAFR AFR CAV DATE 24.07.2025 Uploading Date 20.09.2025 Transmission Date N/A