Patna High Court
Shyambabu Sah vs Shyam Babu Sah on 10 October, 2022
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.178 of 2016
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Shyambabu Sah Son of Ram Kishore Sah, Resident of Village- Sheohar, P.O.-
Sheohar, District- Sheohar. At present- Shyama Computer, Prop. Shyambabu
Sah, P.S.- Sheohar, District- Sheohar.
... ... Petitioner/s
Versus
Shyam Babu Sah Son of Late Bhukhlu Sah, Resident of Village and P.O.-
Sheohar, P.S.- Sheohar, District - Sheohar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Surendra Kishore Thakur, Advocate
For the Respondent/s : Mr. Yogendra Mishra, Advocate
Mr. Arvind Kumar Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
CAV JUDGMENT
Date : 10-10-2022
Heard Mr. Surendra Kishore Thakur, learned counsel for
the petitioner and Mr. Yogendra Mishra, learned counsel for the
opposite party.
(2) This Civil Revision Application has been filed under
Section 14 (8) of the Bihar Buildings (Lease, Rent & Eviction)
Control Act, (hereinafter referred to as the 'Act') on behalf of
the tenant/defendant/petitioner for setting aside the judgment
and order dated 16.06.2016 passed by the Munsif, Sheohar in
Eviction Suit No.03/2008 whereby and whereunder the learned
Court below has decreed the Eviction Suit in favour of the
plaintiff on the ground of personal necessity.
(3) The plaintiff's case in brief, is that plaintiff purchased
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the suit property and constructed rooms for the purpose of
establishing a market (known as Bhukhlu Sah market). The
defendant/petitioner approached the plaintiff/respondent to let
out the room to him for establishing a printing press and after
negotiation, the plaintiff/opposite party let out the suit premises
to the defendant on monthly rent of Rs.500/-. The plaintiff due
to personal requirement for godown to expand his own business
and as such needed the tenanted premises in good faith for
personal necessity and requested the defendant to vacate the
tenanted premises but the defendant is not ready to vacate the
premises despite service of legal notice on defendant through
speed post on 24.01.2017 and lastly on 29.07.2008. Thereafter,
the defendant stopped payment of monthly rent.
(4) In written statement defendant-tenant has denied any
relationship of landlord and tenant between the parties. It is
stated that suit property is not the self-acquired property of the
plaintiff and it is jointly acquired by the plaintiff, his brother
(Ram Babu Sah) and his mother (Sumitra Devi) and there is no
personal acquisition of the plaintiff. The defendant claimed that
the defendant never executed document on 25.12.2005 which is
forged and fabricated. The defendant was forced to sign or write
on blank stamp paper. He had taken suit property on rent from
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the brother of plaintiff i.e. Ram Babu Sah in the year 2002 and
executed Kirayanama on 01.08.2002 at monthly rental of
Rs.500/-. Ram Babu Sah has got this property through Yadast
Batwara between brother and mother on 20.05.2000. The
defendant started a printing press and paying monthly rent
Rs.500/- to Ram Babu Sah.
(5) The Trial Court on the basis of pleading framed
necessary issues for determination by the Court and having
considered the evidence, came to the conclusion that plaintiff
has rented his premises to the defendant and it clearly
established landlord and tenant relationship between the plaintiff
and defendant. The Trial Court observed that even the brother of
plaintiff Ram Babu Sah who is examined as DW-6 has not
mentioned the Yadast batwara in his examination-in-chief. The
Trial Court has further held that the suit premises reasonably
and in good faith required by the plaintiff for his personal
necessity and accordingly decreed the suit and directed the
defendant to vacate the suit premises within 60 days from the
date of decree. Hence, the present revision.
(6) The power under the proviso to Section 14 (8) of the
Act of this Court is limited to extent of seeing as to whether the
order of eviction is according to law or not. For this limited
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purpose, the Court can reappraise the evidence. However, it
cannot reappraise the evidence as an Appellate Court and will
not interfere with the order on the ground that on appreciation of
evidence a different view can be taken. In other words, the
power of this Court is not wide as of an Appellate Court nor it is
as limited as of revisional Court under Section 115 of the Code
of Civil Procedure. Thus this Court will interfere in case it is
found that the order is based on no evidence or the Court below
has ignored the material evidence, which has affected the
findings or the findings are perverse, unreasonable or having
been arrived at without considering the statutory requirements
for grant of relief.
(7) Mr. Thakur, learned counsel on behalf of petitioner has
submitted that the Court below has not considered the question
of partial eviction as required by proviso to Section 11 (1) (C) of
the Act, which is the mandatory requirement and no issue of
partial eviction was framed by the Trial Court, as such, no
evidence was led on this issue nor any finding was recorded by
the Trial Court.
(8) Learned counsel further submitted that it is settled
preposition of law that Trial Court is bound to consider the
mandatory requirement of partial eviction even if no such prayer
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is made by the tenant, for which he has to frame issue during the
trial of the suit with opportunity to both parties to lead evidence
on partial eviction. He has relied on various judgments
including the judgment reported in AIR 1994 SC 489 (Krishna
Murari Prasad Vs. Mitar Singh, 2001 (2) PLJR 837 (Bimal
Kishore Gupta Vs. Smt. Beena Devi & Ors.
(9) In support of his argument he has also relied on the
judgment dated 01.08.2019 of the Co-ordinate Bench of this
Court in Anis Khan Vs. Shyam Babu Sah ( Civil Revision No.
179 of 2016) in which in similar facts, the matter was remitted
to Trial Court to consider the issue of partial eviction after
granting opportunity to both the parties to lead evidence on
partial eviction.
(10) In the judgment of Hon'ble Supreme Court in Krishna
Murari Prasad Vs. Mitar Singh AIR 1994 SC 489; SCC 1993
Suppli. 439 in Paragraph-3 it is held:-
"3. It is obvious that the High Court proceeded on the
basis that a presumption arises that where the premises
comprises only of one room, the proviso to Clause (c) of Sub-
section (1) of Section11 of the Act [i.e. Bihar Buildings (Lease,
Rent and Eviction) Control Act, 1982] is not attracted since its
application is not practicable. Obviously, this assumption is
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fallacious since it pre-supposes indivisibility of a premises
comprised of one room, irrespective of its dimensions and even
when the room is big enough to permit division to satisfy the
needs of the landlord as well as tenant. It is a question of fact in
each case whether such a partial eviction can be made or not.
This enquiry has to be made by the Court after reaching the
conclusion that the landlord's requirement for occupation of
premises set up by him has been mde out. In failing to do so, the
Courts below overlooked this statutory requirement."
(11) This Court in judgment dated 18.04.2001 in Bimal
Kishore Gupta Vs. Beena Devi (C.R. No.2255 of 2000)
reported in 2001 (2) PLJR 837, relied by the learned counsel for
petitioner, held:-
"The Court below has not mentioned, much less considered
the question of partial eviction as required under proviso to
Section 11 (1) (c) of the Act. Law on this point is well settled.
Duty is cast upon the Court to consider the question of partial
eviction even if no such plea is taken by the tenant and while
considering this question duty is cast on the Court to consider
whether reasonable requirement of the landlord would be
substantially satisfied by evicting the tenant from a part only of
the premises. The Court is required to determine the extent of
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the premises which is required reasonably by the landlord and
this has to be decided on the basis of the evidence adduced by
the parties. Thereafter, the Court has to consider as to whether
the aforesaid requirement is substantially satisfied and to fully
satisfied by ordering partial eviction."
(12) On the other hand, Mr. Yogendra Mishra, the learned
counsel for the respondent-plaintiff, has submitted that no plea
at all was taken that requirement of the plaintiff can be satisfied
by partial eviction and it appears that considering the size of the
room measuring 10'x11'=110 sq. ft. having 2.5 ft. entry
passage, the defendant-tenant did not raise the plea of partial
eviction. He has further contended that since there was no
pleading accordingly no issue in terms of Order XIV C.P.C. was
framed nor any evidence was led by either party. He next
submitted that suit under BBC Act is triable only under the
provisions of C.P.C. and since there was no pleading on the
point of partial eviction, no any issue was framed nor any
evidence was led and learned Trial Court rightly refrained from
touching the question of partial eviction.
(13) He has next submitted that the Hon'ble Supreme
Court has laid down the necessity of pleading, framing issues
and leading evidence to prove the fact and on this point he relied
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on the judgment of Hon'ble Supreme Court reported in AIR
2011 SC1127 (Kalyan Singh Chauhan Vs. C.P. Joshi). Since
the plea of partial eviction was neither taken in the Trial Court
nor in the Civil Revision, it cannot be raised orally without
pleading and proof. He has concluded his argument that once
the plaintiff proved bonafide requirement of the demised
premises, the landlord has choice to occupy the entire premises.
He has relied on the judgment of this Court reported in AIR
1985 Patna 207 (Mrs. Veena Rani and Ors. Vs. Mrs. Ishrati
Amanullah & Ors.)
(14) In Kalyan Singh Chauhan case (Supra) it is held that
it is settled legal proposition that as a rule relief not founded on
the pleadings should not be granted. Therefore, a decision of a
case cannot be based on grounds outside the pleadings of the
parties. The pleadings and issues are to ascertain the real
dispute between the parties to narrow the area of conflict and
see just where the two sides differ. It is neither desirable nor
required for the Court to frame an issue not arising on the
pleadings. The Court should not decide a suit on a matter/point
on which no issue has been framed.
(15) In Krishna Murari Prasad case (Supra) the Hon'ble
Supreme Court held:-
Patna High Court C.R. No.178 of 2016 dt.10-10-2022
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"The proviso to Clause (c) of Sub-section (1) of Section
11 of the Bihar Buildings (Lease, Rent and Eviction) Control
Act, 1982 lays down that where the Court thinks that the
landlord's reasonable requirement of such occupation may be
substantially satisfied by evicting the tenant from a part only
and allowing the tenant to continue the occupation of the rest of
the premises and the tenant agrees to such occupation, the Court
shall pass a decree accordingly and fix proportionately fair rent
for the portion in occupation of the tenant. Obviously, this
situation is reached when the landlord has proved his
requirement to make out a ground for obtaining eviction of the
tenant. In the present case, landlord's requirement having been
found proved, the Court had to consider the matter further
according to this proviso and an order for eviction from the
entire premises could be made only if a decree for partial
eviction in the manner provided could not substantially satisfy
the landlord's requirement."
(16) On perusal of the aforesaid judgment dated
01.08.2019in case of Anis Khan Vs. Shyam Babu Sah (Supra) discussed above, which has been referred to and strongly relied upon by the learned counsel for the petitioner, it appears that the facts and circumstances of the present case are Patna High Court C.R. No.178 of 2016 dt.10-10-2022 10/11 similar to the facts and circumstances of the said case. Since, the Trial Court has failed to consider the said issue in the said case, the matter was remanded back to the Trial Court for giving its finding. Thus, it is submitted by learned counsel appearing on behalf of petitioner this Court too should remand the case to the learned Trial Court.
(17) Learned counsel for the tenant-petitioner did not point out any infirmities in the plaintiff's evidence nor pointed out non-consideration of material evidence by the learned Court below in arriving the findings of fact. In this case, the Court below has found that the requirement of the plaintiff is bonafide and reasonable one and the learned counsel for the petitioner has not been able to assail the aforesaid finding. Thus, it is held that the suit premises are required by the plaintiff reasonably and in good faith and accordingly, the conditions for eviction as provided under Section 11 (1) (c) of the Act have been fulfilled (18) In view of settled proposition of law that the Trial Court is bound to consider the mandatory requirement of partial eviction for which he has to frame such issue during the Trial of a suit with opportunity to both parties to lead evidence on partial evidence.
(19) For the reasons as stated above the judgment and Patna High Court C.R. No.178 of 2016 dt.10-10-2022 11/11 decree of the Trial Court is not sustainable for want of any finding on issue of partial eviction, accordingly, the matter is remitted for the limited purpose to Trial Court to consider the issue of partial eviction after granting opportunity to both the parties to lead evidence on partial eviction. The Trial Court is directed to decide the issue of partition eviction and of relief within the period of four months from the date of receipt of certified copy of this judgment.
(20) This Court is not inclined to interfere in respect of other findings as recorded by the Trial Court and same is left undisturbed.
With the aforesaid observation and direction Civil Revision Application is disposed of.
(Sunil Dutta Mishra, J) kamlesh/-
AFR/NAFR NAFR CAV DATE 27.09.2022 Uploading Date 10.10.2022 Transmission Date NA