Patna High Court
Deo Narain Sah And Ors. vs Chano Kumari on 12 May, 2006
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
JUDGMENT Navaniti Prasad Singh, J.
Page 1285
1. That the present revision application arises out of the judgment and order dated 08.02.2001 passed by Munsif II, Samastipur in Eviction Suit No 6 of 1998. The petitioners, who were tenants and defendants in the said suit, were directed to vacate the suit premises. The plaintiff had filed the suit against the defendants for a decree of eviction on the ground of personal necessity.
2. Shri Sukumar Sinha, learned Senior Counsel appearing for the petitioners has principally raised only three issues while assailing the judgment. Firstly, he has submitted that it was incumbent upon the Court to decide that there was landlord-tenant relationship between the parties and moreso because this was a suit for eviction on ground of personal necessity of the landlord. This not emphatically having been done, vitiates the entire judgment and decree. Secondly, the premises in question was a shop premises but the plaintiff required it for her residence. This was not permissible and lastly, it was incumbent upon the Court to consider the question of partial eviction and not having considered the same at least to that extent, the matter must be remanded for fresh consideration.
3. Elaborating the first point for consideration, it is submitted that the plaintiff had alleged in the plaint that she had purchased the property on plot No. 37g, the municipal holding No. 14A in Mohalla-Gudri Bazar, Ward No. 7 in the town of Samastipur by sale deed dated 04.08.1986 executed by Mosemat Kesri Devi and Mosemat Parwati Devi. The defendants' case was that as per the said sale deed what the plaintiff had purchased was property on plot No. 115. The defendants examined one vinod Kumar Choudhary as D W 7 being son of late Shiv Shankar Prasad to establish that he was the owner of plot No. 378. Mr Pushkar Narain Shahi, learned Counsel appearing for the plaintiff-opposite party pointed out, with reference to the plaint, that in the plaint itself, it was clearly stated that the holding was in Ward No. 7 having Holding No. 14A and was actually on plot No. 378 which had been wrongly written in the deed as 115. Further, on behalf of plaintiff, it was clearly shown, by reference to Exhibit-1, an agreement entered into between Shiv Shankar Prasad, father of Vinod Kumar Choudhary (D W 7) and one Jai Lal Sah that the plaintiff Chano Devi was occupying plot No 378 which was on the boundary of plot No. 379 in respect of which the said agreement was, Similarly, plaintiff brought on record Exibit-6 being complete ordersheet of a mutation case wherein the said Shiv Shankar Prasad, father of Vinod Kumar Choudhary (D W 7) himself petitioned the municipal authorities that the plaintiff could get mutation in respect of holding pertaining to plot No. 378 and not 115.
4. In this regard, I have examined the pleadings and evidence as well as the judgment impugned. It is undisputed that plot No. 378 belonged to late Mauje Lal Choudhary. Mosemat Kesri Devi is his widow and Parwati Devi is daughter. The two were the vendors to the plaintiff. It is also clear from deposition of D W 5 Deo Narain Sah that Shiv Shanker Prasad, father of Vinod Kumar Choudhary (D W 7) is the Nail. (grandson) from Page 1286 daughter of Mauje Lal Choudhary whose son is Vinod Kumar Choudhary. It is, therefore, clear that Vinod Kumar Choudhary (D W 7) derived title to the plot No. 378 through his grandmother Kesri Devi or for that matter, maternal grandfather Mauje Lal Choudhary. I have examined the written statement of the tenants-defendants. In the entire written statement not at one place has he disputed that he was not in occupation of Holding No. 14A in Gudri Bazar in Ward No. 7, Samastipur. It is this holding that undisputedly the plaintiff had purchased. It is, thus, manifest that the defendants were in occupation of Holding No. 14A in Ward No. 7 of Samastipur Town which holding was purchased by the plaintiff and the plaintiff had duly got her name mutated in this regard that too to the knowledge of Shiv Shankar Prasad, the father of Vinod Kumar Choudhary (D W 7). That being so, so far as the present proceedings are concerned. it is well established that the plaintiff was the landlady/owner and the defendants were the tenants.
5. Shri Sinha appearing for the petitioners urged that the Court wrongly held that it had only to decide the question of title in an ancillary manner. Dispute with regard to ownership having raised, the Court had to try it as a Title Suit. The broad proposition, as canvassed, cannot be accepted for the simple reason that if it were so then every tenant would raise a question of title and force the Court to try the suit not as per procedure laid down under Section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act (hereinafter referred to as "the Act") but as a full-fledged Title Suit, it would then cease to be a suit with reference to the Act. That is surely not the intention. Reference may be made to AIR 2001 SC 1 in this regards. Court has rightly proceeded and come to the finding that the defendants are tenants of the plaintiff for the purposes of the present proceedings and I find no reason to interfere.
6. Coming to the next submission that the defendants were occupying the premises as a shop and the plaintiff would not claim it on the ground of personal necessity for being used as a residence, it is equally devoid of substance. It is for the landlord/owner to decide as to what use he win out the premises to. Here the plaintiff has shown age and physical disability supported by certificate in this regard (Annexure-7) to establish that she requires the premises for her residence. Nothing has been brought on record to doubt the assertion of the plaintiff. There is nothing in law which prevents the plaintiff in changing the nature of use of premises nor anything has been brought on record that she does not require or intend to use it as her residence. Accordingly, this ground has no substance and is, accordingly, rejected.
7. Coming to the last issue raised before this Court as to partial eviction, it is submitted that it was incumbent upon the Court to consider the question of partial eviction whether pleaded or not and the Court having not considered the same, the judgment stands vitiaed. This question has to be seen in light of facts which have been found established in the present case. Firstly, it has to be kept in mind that defendants have denied being tenants of the plaintiff and secondly, it is established that it is undisputed that the premises in question is only one room and verandah in front. Surely if any Court were to consider partial eviction, the competing claim being shop and personal residence of an old lady being the landlady, the needs of the landlord of residence could not be met by anything less a room for residence. That being so, merely because the Court did not record a finding with regard to partial eviction, in the peculiar facts and circumstances of this case. I am not inclined to interfere.
8. Accordingly, the revision application is dismissed and the judgment impugned is not interfered with.