Patna High Court
Madhuri Devi vs Sri Raghubansh Jha on 24 January, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.673 of 2010
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Madhuri Devi
.... .... Petitioner
Versus
Sri Raghubansh Jha
.... .... Respondent
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Appearance :
For the Petitioner/s : Mr. JAGNNATH SINGH
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 24-01-2012
(Per: HONOURABLE MR. JUSTICE V. NATH)
V.Nath, J.Heard the learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the opposite party.
2. The instant revision application has been filed under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as B.B.C.Act) against the judgment and order dated 05.04.2010 passed by Musif I, Darbhanga in Eviction Suit No. 15/07.
3. The plaintiff's case, in short, is that he, out of his earning, acquired an area of 3 Katha 10 Dhurs of land with Padmanand Jha through registered sale deed dated 01.05.1968 and thereafter both the purchasers divided the purchased land. The plaintiff has constructed double storied building over the land of his share and in the 1st floor of the said building the plaintiff resides with his family members and in the ground floor there are two flats. The defendant has been inducted as monthly tenant in the flat on the northern part of the ground floor. Although the allegation of default in payment of rent has been made in the plaint but the suit has been filed only on the ground of personal necessity stating that in private arrangement in the family, the plaintiff has allotted northern part of the ground floor to his second son and southern part to his first son. It is the case of the plaintiff that his second son, Shankar Kumar Jha holds the degree of M.Sc but is unemployed and wants to establish a coaching centre in the suit premises for earning his livelihood. The refusal by the defendant to vacate the suit premises, as per the agreement at the time of inducting her as tenant, has led to the filing of this suit.
4. The defendant filed her written statement and has contradicted the claim of the plaintiff by asserting that the bona fide personal necessity as pleaded by the plaintiff is not genuine rather there has been long standing dispute between the plaintiff and defendant which has led to the concoction of the story of personal need for seeking eviction of the defendant. It is the case of the defendant that the agreed monthly rental was Rs. 700/- but the plaintiff claimed the same to be Rs. 1500/- per month which has compelled the defendant to move before the Rent Controller under the B.B.C. Act for fixation of fair rent. The defendant has denied any information regarding sons of the plaintiff living in the house and has stated that the plaintiff has several tenants in his house. The defendant has elaborated the incidents when the plaintiff disconnected the water supply and electricity supply to the suit premises and made a hole in the roof and poured water which destroyed the goods of the defendants. The defendant has also asserted that she had paid Rs. 500/- as advance to the plaintiff with the agreement that the same would be returned when the tenanted premises would be vacated.
5. In view of the rival pleadings, the court below has framed issues including the issue with regard to the relationship of landlord and tenant in between the plaintiff and defendant and bona fide personal necessity of the plaintiff as well as the specific issue of partial eviction. After considering the evidence, in view of the pleadings and submissions of the parties, the court below has come to the finding that there is relationship of landlord and tenant between the plaintiff and the defendant and the plaintiff has got bona fide personal necessity of the suit premises for his son for opening a coaching institute and accordingly the suit has been decreed.
6. The learned counsel appearing on behalf of the petitioner has submitted that the eviction suit filed by the plaintiff was not maintainable in view of the partition between the plaintiff and his sons as pleaded wherein it has been accepted that the suit premises has fallen in the share of the 2nd son of the plaintiff. It has been urged that as the plaintiff's second son is not a party to the eviction suit, the same was not maintainable and the power of attorney filed by the plaintiff could not be availed of for the purpose of seeking the eviction of the defendant-tenant on ground of personal necessity. It has been next contended by the learned counsel that the plaintiff has suppressed the fact regarding the pending case for fixation of fair rent before the House Controller where he could have advanced his case for personal necessity. It has next been contended that there is no approach road to the building so the same is not suitable for the purpose of establishing a coaching centre as pleaded by the plaintiff as a ground of personal necessity.
7. Per contra, the learned counsel appearing for the opposite party has contended that the objection to the maintainability of the suit for non-rejoinder of the son of the plaintiff has not been specifically pleaded in the written statement and the same cannot be raised at the stage of revision under Section 14(8) of the B.B.C.Act. It has been urged that if such a plea would have been raised, the plaintiff would have got opportunity to rebut and prove the same to be without substance by leading appropriate evidence. It has been next argued that the defendant did not plead that the second son of the plaintiff was in employment and there is no evidence in this regard on record and therefore the court below has rightly come to the conclusion that the plaintiff has got the personal necessity of the suit premises. With regard to the issue of partial eviction, it is the contention on behalf of the opposite party that there is no pleading in the written statement showing the defendant's readiness to occupy even a part of the suit premises and further there is also no evidence that the need of the plaintiff for establishing a coaching institute can be substantially satisfied by partial eviction of the defendant.
8. The plaintiff has pleaded that out of his own earning, he has constructed the building and out of two flats in the ground floor, flat in the northern part is in occupation of the defendant as monthly tenant. The plaintiff has mentioned a private arrangement in his family by which his two sons have been given the two flats in the ground floor of the building. The plaintiff has filed the suit on the ground of personal necessity for establishing a coaching centre by his second son in the suit premises as the same has been given to him in the private arrangement. There is no dispute to the fact that the suit premises including the building where it is situated is the self acquired property of the plaintiff and as such the sons of the plaintiff cannot have any right, title or interest in the same during the lifetime of the plaintiff. Moreover, there is no pleading that there had been any partition of the family property of the plaintiff with his son by allotting different shares to the members of the family. The mention of private arrangement in the plaint is not sufficient to divest the plaintiff of his title over the suit premises. Further, the defendants also in the written statement has not made any averment regarding partition in the family of the plaintiff and his son (second son) acquiring right, title and interest over the suit premises. In absence of such averment in the written statement, no issue had been framed and the plaintiff could not get the opportunity to contradict the same by leading evidence. At this revisional stage such issue which is a mixed question of law and fact cannot be allowed to be agitated for the first time more so when there is no specific pleading in the written statement in this regard. Thus I find no force in this submission on behalf of the petitioner.
9. The defendant has admitted the relationship of landlord and tenant and the learned court below has rightly recorded the finding regarding the existence of relationship of landlord and tenant between the parties. The specific case of the plaintiff regarding his personal necessity of the suit premises for establishing a coaching centre by his second son for earning livelihood has not been denied by the defendant in the written statement rather the defendant has come out with the case that she does not know any of the sons of the plaintiff living in the building. There is also no evidence on the side of the defendant to establish that the second son of the plaintiff is under any employment. The fact that there are other tenants also in the building of the plaintiff will not vitiate his case of bona fide personal necessity in view of Explanation II to Section 11(1)(c) of the B.B.C.Act. The learned court below has elaborately considered the facts and analyzed the evidence on the issue of personal necessity and has come to the finding that the plaintiff has got bona fide personal necessity of the suit premises. This finding recorded by the court below is in accordance with law and no perversity has been pleaded or established in this finding.
10. The learned court below has considered the issue of partial eviction and has found that the partial eviction of the defendant will not satisfy the need of plaintiff. The fact averred in the plaint that the suit premises consists of two rooms with a Varandah, Latrine and Kitchen has not been denied by the defendant. The plaintiff's requirement as per his pleading is to establish a coaching centre in the suit premises. No evidence has been brought on record by the defendant to show that the coaching centre can be established by partial eviction of the defendant and the need of the plaintiff could thereby be substantially satisfied. It is well settled that while considering the issue of partial eviction, the substantial satisfaction of the need of the plaintiff has to be objectively determined. There is thus no illegality in the finding by the learned court below on the issue of partial eviction as well.
11. For the foregoing reasons and discussions, it is held that the impugned judgment and order is in accordance with law and no interference is required. This civil revision application is, accordingly, dismissed.
(V. Nath, J) Patna High Court, Patna.
Dated 24 of January, 2012.
Nitesh/N.A.F.R.