Patna High Court
Rajendra Poddar & Anr vs Smt. Shakuntala Devi & Anr on 3 January, 2012
Author: Vijayendra Nath
Bench: Vijayendra Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.215 of 2010
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1.Rajendra Poddar son of Late Dhaneshwar Poddar,
resident of Mohalla Mungeriganj Pargana Ballia P.S. S.D., S.R. & District
Begusarai.
2.Kaili Devi, wife of Late Dhaneshwar Poddar, Resident of Mohalla
Mungeriganj Pargana Ballia, P.S. S.R.S.D. and District Begusarai,
.... .... Appellant/s
Versus
1.Smt. Shakuntala Devi wife of Sri Bijai Kumar Soni.
2.Smt. Rukumini Devi, wife of Sri Lakshman Prasad Soni,
Both residents of Mungeriganj, Pergana Ballia, P.S. S.R.S.D. and District
Begusarai .... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Shivanandan Rai, Sr. Adv.
Mr.Jai Prakash Singh, Adv.
For the Respondent/s :
Mr. Chitranjan Sinha, Sr. Adv.
Mr. Mukund Jee,Adv
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CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIJAYENDRA NATH) Heard the learned counsel appearing on behalf of the appellants and also the learned counsel appearing on behalf of the respondents.
2. This appeal has been filed by the defendants against the judgment and decree of reversal passed by the Additional District Judge, F.T.C. II, on 24-6-2006 in M.T.A.No. 3 of 2002 reversing the judgment and decree passed by Munsif I, Begusarai on 24-1-2002 in Eviction Suit No. 28 of 1987 filed on the ground of personal necessity under section 11(c) of the Bihar 2 Buildings (Lease, Rent And Eviction) Control Act, 1982.
3. Shorn of unnecessary details, the plaintiffs have come out with the case that the suit property originally belonged to Mosaheb Lal and after his death it was inherited by his only son Medni Prasad who also died leaving daughters only who inherited the entire property including the suit property and in partition amongst them it fell to the exclusive share of one of the daughters Nand Rani Devi. After the death of Nand Rani Devi, his son Deepak Shekhar inherited the property. The plaintiffs are purchasers of the suit property from Deepak Shekhar through four registered sale deeds dated 20-9-1986. The defendant 1st set was the tenant in the suit property from before. As the plaintiffs had purchased the suit property for the purpose of constructing a new house in order to accommodate their large family after raising funds by selling away their small house and as they have been residing in a rented house, a request was made by them to the defendant 1st set to vacate the premises and on the refusal, the suit has been filed for eviction.
4. The defendants denied the title of the plaintiffs over the suit house and set up a title into themselves stating that their predecessor-in-interest Keso Poddar acquired the suit property in the year 1910 from Mosaheb Lal and in the year 1912 from Ram Sahay Chaudhary in the name of his wife Bhatni Devi, who later on gifted that property to her daughter-in-law Kaili Devi, who is defendant 2nd set, by a registered gift deed dated 17-11- 1986. It is the case of the defendants that since thereafter they have 3 been coming in possession of the suit property and have also been letting out the portion of the building of the suit property to the tenants. The defendants in specific terms have asserted that the vendor of the plaintiffs Deepak Shekhar never acquired any title over the suit property and consequently the plaintiffs have also no title over the suit property.
5. At the initial stage, the defendants filed a petition objecting to the maintainability of the suit itself under section 14 of the Bihar Buildings (Leave, Rent and Eviction) Control Act, 1982. However, the trial court rejected the objection and in the civil revision application filed by the defendants, this Court upheld the order of the trial court rejecting the objection by the defendants taking notice of the fact that the plaintiffs have only sought for relief of eviction and no other relief has been sought for. However, the Apex Court in Civil Appeal No. 2649 of 1997 preferred by the defendants by order dated 7-4-1997 permitted them to raise the issue of title in the eviction suit itself for adjudication. In view of the direction of the Apex Court the issue of title along with other issues has been framed and considered by the courts below.
6. The trial court framed Issue no.4 and Issue no.5, relating to existence of relationship of landlord and tenant in between the plaintiffs and the defendants and acquisition of title by the defendants over the suit property respectively. After elaborately considering the evidence on record, the trial court came to the conclusion that the defendants had no title over the suit property as claimed by them and the plaintiffs have acquired valid 4 title over the suit property through their purchase. The trial court has also recorded the finding that the relationship of landlord and tenant exists between the plaintiffs and the defendants. However, the issue of personal necessity has been decided against the plaintiffs solely by drawing inference against the plaintiffs for their failure to examine themselves as witnesses in the suit and ultimately the suit was dismissed.
7. The plaintiffs filed appeal against the aforesaid judgment and decree and the defendants also filed a cross- objection in the said appeal assailing the finding of title in favour of the plaintiffs. The appellate court, on reappraisal of the evidence of the parties, has also come to the conclusion that the defendants failed to prove their title over the suit premises whereas the plaintiffs have been able to prove valid acquisition of title over the suit property by them on the basis of purchase. The appellate court further also considered the finding of the trial court on the issue of personal necessity and held that an adverse inference could not have been drawn against the plaintiffs for their non-examination in the suit in presence of other circumstantial evidence on record on behalf of the plaintiffs on that issue and after considering the evidence on record, the appellate court has come to the finding that the plaintiffs reasonably and bonafide require the suit premises for the purpose of residence of their family and accordingly the finding of the trial court has been reversed. This second appeal has been admitted by order dated 5-5-2010 and the following substantial questions of law have been framed for consideration: 5
(i) Whether the findings of fact with regard to the claim of the plaintiffs were arrived at on the basis of pleadings and evidence of the parties?
(ii) Whether by not supporting the plaint by coming to depose as P.Ws., the plaintiffs‟claim can be legally allowed?
8. In view of the concurrent finding of fact that the plaintiffs have acquired valid title over the suit premises by virtue of their purchase, the learned Senior counsel for the appellants has not laid much stress on the said finding and has confined his submission on the findings on the issue of personal necessity as recorded by the appellate court with further submission that the issue of partial eviction has not been framed and has not been properly decided by the appellate court.
9. The main plank of the argument of the learned senior counsel on behalf of the appellant is that since the plaintiffs have filed this suit for eviction on the ground of personal necessity, they were required to examine themselves in the suit in order to prove and establish their personal necessity. It has been urged that due to non-examination of the plaintiffs, the statements made in the plaint have remained unproved and thus no decree could have been passed in favour of the plaintiffs. It has been submitted that adverse inference had rightly been drawn by the trial court against the plaintiffs, who had failed to enter witness- box and face cross-examination but the appellate court has wrongly reversed that finding and refused to draw the adverse inference against the plaintiffs for their non-examination. It has 6 also been urged that the issue of partial eviction has not been properly considered by the appellate court below The learned senior counsel has placed reliance upon the decisions of the Apex Court, reported in 2010 A.I. R SCW 6198 and A.I.R. 1999 S.C. 1441. Buttressing his submission on the issue of partial eviction, reliance on behalf of the appellants has been placed on the decision of the Apex Court, reported in 1992(2)I.L.R. 635
10. Rebutting the submissions on behalf of the appellants, the learned senior counsel on behalf of the respondents has submitted that the law with regard to drawing adverse inference is not as absolute as has been propounded on behalf of the appellants and it is left to the discretion of the court in the facts and circumstances of each case to draw adverse inference or not. It has been contended that when the evidence brought on record by the plaintiffs are sufficient to sustain the case as pleaded by them, there is no warrant for the proposition that even then adverse inference should be drawn against the plaintiffs disbelieving their case. In the present case from the averments made in the plaint itself, it is clear that the plaintiffs are women and have stated to be acting through their husbands. Moreover, the case of personal necessity, as pleaded by the plaintiffs, is with regard to the necessity of their family being in need of accommodation due to large number of family members and the suit house has been purchased after selling away the small house of the family. It is the contention of the learned senior counsel that these facts cannot be said to be within the personal and exclusive knowledge of the 7 plaintiffs which can be proved only by them. The fact that the family after selling its small house is at present residing in a rented house is also not a fact within the exclusive knowledge of the plaintiffs alone, and further this fact itself has been considered along with other facts by the appellate court while considering the question of partial eviction. It has thus been submitted that no substantial question of law arises for consideration in this appeal.
11. The principle behind drawing of adverse inference is largely based upon the „best evidence theory‟ which postulates that a court can draw adverse inference against a party who withholds the best evidence in his possession. But, this is only an abstract proposition of law depending upon the facts and circumstances of each case. The court is not always bound to raise adverse inference against a party unless it becomes satisfied that there is willful withholding of some relevant facts on his part within his personal and exclusive knowledge as evidence. If the necessary facts, required to be proved in order to succeed, have been proved by other evidence on record, there is no reason to ignore the same and hold the same as not proved by drawing adverse inference against the party on whom the burden lies. Non- examination of a party in a suit in support of his claim would certainly lead the court to draw an adverse inference against him in the suit provided the relevant facts are held to be within the exclusive knowledge of that party and he can be blamed for withholding the same. The principle of law in this regard has been succinctly laid down by the three Judges Bench of the Apex Court 8 in the case of Panduram Jivaji Vs. Ramchandra Gangadhar Ashtekar, reported in A.I.R. 1981 SC 2235 wherein it has been laid down as follows:
"The question of drawing an adverse inference against a party for his failure to appear in court would arise only when there is no evidence on the record."
12. In the aforesaid case (supra), the Apex Court was considering this issue, on the facts, that the appellants before it were asserting their right to sell the property under attachment but had failed to appear before the court below in support of their assertion, and on that basis it was contended that necessary presumption against them should have been raised by the courts below on account of their failure to appear before the court. Taking notice of the admission by the other side of necessary facts sufficient to sustain the case of the appellants, the Apex Court rejected the contention for raising adverse inference against the appellants. Moreover, there is no such rule that the plaintiff must examine himself in each and every case in order to succeed, and avoid raising adverse inference against him. A similar issue was considered by a Division Bench of this Court in Ramji Jankiji and another Vs. Mauni Baba, reported in A.I.R. 1978 Patna 48 wherein it has been held that there is no rule of law that the plaintiff must examine himself as a witness in order to establish his case. However, it has also been observed therein that "a court of law is entitled to draw an inference adverse to the plaintiff if he does not 9 have the courage to depose what he has claimed and to prove facts mentioned in the plaint and a Court would be fully justified in not accepting the averments in the plaint unless there is other coercive evidence in support of it".
13. From the facts of this case it is pellucid that the plaintiffs have been acting through their husbands, and in the plaint itself it has been stated that the husbands of the plaintiffs had approached the vendor of the plaintiffs for purchase of the suit properties, negotiated for the same and finally the purchase was made. It has been further stated in the plaint that the plaintiffs raised the fund for purchasing the suit properties after selling their small house for the purpose of constructing a new house over the suit property for accommodation of their large family and it has also been stated that the plaintiffs and family members are at present residing in a rented house and the plaintiffs have no other house for them.The consideration of the aforesaid facts clearly depicts that those facts are not of such nature which can be attributed to the personal and exclusive knowledge of the plaintiffs. Moreover, the husbands of both the plaintiffs have been examined in the suit and they have fully supported the necessary facts as averred in the plaint. In view of the fact that the plaintiffs‟ husbands have been examined as witnesses and also in view of the case of the plaintiffs itself suggesting that they have been acting through their husbands, drawing adverse inference against the plaintiffs for their non-examination in the suit is not warranted. Such a view is in consonance with the law laid down by the Apex 10 Court recently in Man Kaur Vs. Hartar Singh Sangha, reported in 2010 AIR SCW 6198, which has also been relied upon by the appellants, wherein after taking notice of the earlier decision in Vidhyadhar V. Manikrao, reported in A.I.R. 1999 SC 1441, it has been held as follows:
"Where the law requires or contemplates the plaintiff or other party to a proceeding, to establish or prove something with reference to his „state of mind‟ or „conduct‟, normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his „bona fide‟ need and a purchaser seeking specific performance who has to show his „readiness and willingness‟ fall under this category. There is, however, a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or „readiness and willingness‟. Examples of such attorney holders are a husband/ wife exclusively managing the affairs of his/her spouse, a son/ daughter exclusively managing the affairs of an old and infirm parent, a father/ mother exclusively managing the affairs of a son/daughter living abroad."
14. In fact, the appellants who were defendants, did not deny the case of the personal necessity as pleaded by the plaintiffs and have contested the suit mainly on the issue of title. 11 Nonetheless, an issue has been framed in the suit and decided against the plaintiffs by the trial court only by drawing adverse inference against them, but the appellate court has reversed the said finding and by applying the correct principles of law has refused to draw adverse inference against the plaintiffs for their non-examination in the suit, and after appreciating the evidence has come to the conclusion that the plaintiffs bonafidely and reasonably require the suit premises. The appellate court has rightly placed reliance upon the decision of the Apex Court in Ramkubai Vs. Hajarimal Dhokatchand Chandak, reported in A.I.R. 1999 S.C. 3089 wherein the bonafide personal necessity of the plaintiff who had not examined herself has been accepted to have been established by examination of the son of the land-lady, who had come to the witness- box to support her claim . Although in the said case the son of the land-lady was also her G.P.A. holder, but his evidence was also accepted on that issue with the observation that the bonafide requirement was for his benefit for setting him up in his business. In the present case also the bonafide requirement as pleaded is for construction of a house for the accommodation of large number of family members of the plaintiffs with the specific case that the suit property has been purchased for that purpose after selling away the small house and at present the family is residing in a rented house. In this view of the matter, the appellate court has rightly relied upon the evidence of the husbands of the plaintiffs in this regard for whose benefit also the bonafide requirement has been claimed.
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15. So far as the question of partial eviction is concerned, it has been specifically stated in the plaint that the plaintiffs have sold their small house in order to purchase the suit property for construction of a house for accommodation of their family members and the plaintiffs and their family members have been presently residing in a rented house. The appellate court below has taken notice of the aforesaid facts and the evidence in that regard and has recorded the finding that the partial eviction of the defendants from the suit premises will not satisfy the need of the plaintiffs. It cannot be established on behalf of the appellants that the plaintiffs‟ need to construct a new house is possible even after the eviction of the defendants from a part of the suit premises. As such, I do not find any infirmity in the findings of the appellate court on the question of partial eviction.
16. For the foregoing reasons, the substantial questions of law as framed in this appeal are answered in negative and this appeal is dismissed. However, in the facts and circumstances of the case, the parties shall bear their own cost. Patna High Court The 10 January,2012 A.F.R. (Roy) ( V. Nath, J.) roy