Patna High Court
Smt. Jasbir Kaur @ Raj Rani And Anr. vs Rabindra Kumar Yadav And Anr. on 26 March, 2008
Equivalent citations: AIR 2008 (NOC) 1821 (PAT.), 2008 AJHAR (NOC) 809 (9PAT.)
JUDGMENT S.N. Hussain, J.
1. This civil revision has been filed by defendants-petitioners under the Proviso to Sub-section (8) of Section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as the 'Act' for the sake of brevity) challenging order/judgment of their eviction dated 24.08.2006 by which the learned Munsif III, Patna, decreed Eviction Suit No. 59 of 1994.
2. The aforesaid suit was filed by the sole-plaintiff-opposite party No. 1 for eviction of defendants-petitioners from the suit premises, namely two shop rooms detailed in Schedule I and Schedule III of the plaint which are portions of the building bearing holding No. 250/204A, Circle No. 7. Ward No. 10, situated at Station Road, P.S. Kotwali in the town and district of Patna on the grounds of personal necessity of the plaintiff, default in payment of rent and expiry of fixed term of tenancy.
3. The plaintiffs claim in short was that he was the owner of the entire building detailed above, on the first floor of which he carried hotel business in the name of M/S Bihar Niwas and on the ground floor he resided along with his family in which he had one bed room-cum-drawing room-cum-dining room-cum-study room measuring about 15 1/2' X 8 ½' besides kitchen, latrine, bath-room and a small room in which there were three tier wooden beds for his three children, namely Kumar Chirinjiv, Kumar Abhijeet Rai and Puja Rai, who were all college going students.
4. The plaintiff further claimed that apart from the aforesaid portion there were two shop rooms which were part of the holding in suit in which he inducted the defendants-petitioners as tenants on oral lease for a fixed term and in evidence thereof rent notes were executed in duplicate and each of the parties retained a copy thereof and after the expiry of the said period of lease similar rent note was prepared and the last rent notes were prepared on 01.04.1993 for Schedule 1 shop room and on 09.04.1993 for schedule III shop room, both for a period of six months after expiry of which the said suit was filed in the year 1994.
5. The plaintiff further claimed that the rent of Schedule I was Rs. 451.00 per month, whereas the rent of Schedule III was Rs. 426.00 per month, but the defendants did not pay any rent from October, 1993 to August, 1994, nor he paid the electricity dues for the said shop rooms which had to be deposited by the plaintiff and hence the defendants were not only liable to be evicted on the ground of default, but were also liable to pay entire arrears of rent and electricity dues with damages.
6. The other ground taken by the plaintiff was the ground of personal necessity as he claimed that for want of sufficient accommodation, the plaintiff was using his bed room as a drawing room-cum-dining room-cum-study room also, whereas a small room was being used as a bed room for two sons and a daughter of the plaintiff who were college going students. Hence, he claimed that he required both the two shop rooms involved in the suit, which were adjacent to the residential portions, for using Schedule I as Drawing-cum-dining Room and Schedule III for the use of his sons after which the two rooms already in possession of the plaintiff could be used as bed-rooms for the plaintiff and his daughter separately.
7. During pendency of the suit, the original tenant Sardar Darshan Singh Sachdeva died, vvhereafter his widow and two sons were substituted in his place who filed their written statement claiming that the suit did not come under the purview of Section 14 of the Act and one suit cannot be filed with respect to two premises for which cause of action had arisen at different times. Although the defendants admitted that they were tenants, but asserted that the plaintiff was not the sole owner of the suit premises as it originally beonged to Late Lakshmi Narain Yadav after whose death, his widow, two daughters and five sons including the plaintiff became joint owners and they authorized the plaintiff to collect rent from the defendants and execute necessary papers and instructed the original defendant to pay rent to the plaintiff.
8. The defendants further claimed that the plaintiff was not residing on the ground floor, rather he with his family was residing in a portion containing three rooms on the first floor, whereas remaining portions of the first floor and the ground floor were being used for running a hotel business in the name of M/s Bihar Niwas. He further claimed that the premises in possession of the plaintiff was sufficient for the use and occupation of his family and in addition to the house in question, the plaintiff had four more houses situated in Mohalla Nandgola, Patna city, Mohalla Maroofganj, Patna City, Mohalla Narobiganj, Patnacity and in Mohalla Meethapur, Patna, which can very well be used for the purposes if the plaintiff had any bonafide requirement.
9. The defendants specifically averred that there was no arrears of rent or electricity dues as they had been paying the same regularly and hence they cannot be termed as defaulters, They also stated that their predecessor, namely the original defendant, was inducted by the father of the plaintiff in the year 1950 on a monthly rent of Rs. 333.00 per month for each shop which was enhanced from time to time and the tenancy was purely on month to month basis and not for a fixed term. The plaintiffs claim of fixed period of six months of oral lease was also denied. It was also claimed by the defendants that the rent notes produced by the plaintiff were not documents of fixed period of lease, as it merely contained the name of all the owners and were executed by them just for collecting rent.
10. During the pendency of the suit, one Dinesh Kumar Yadav intervened claiming to be co-owner of the suit premises, whereafter the learned court below allowed his intervention petition and impleaded him as intervenor-defendant No. 2, whereafter he filed written statement claiming that plaintiff was not an absolute owner of the suit premises, rather he was only a co-owner along with his brothers including intervenor. He also denied any default in payment of rent by the tenant-defendant. However, after filing his written statement, the said Dinesh Kumar Yadav neither adduced any oral or documentary evidence, nor contested the suit during the hearing of the suit. Subsequently the said Dinesh Kumar Yadav died, but the plaintiff did not substitute his heirs and legal representatives.
11. It transpires that subsequently the plaintiff confined the suit only on the ground of personal necessity due to which the learned court below did not frame any issue on the question of expiry of fixed period of lease or default in payment of rent and framed the following issues for deciding the suit:
I. Whether the suit is maintainable as framed?
II. Whether the plaintiff has valid cause of action for the suit?
III. Whether the suit is barred by estoppel, waiver and acquiescence? IV. Whether the instant suit is abated or not after the death of intervenor defendant for non-substitution of his legal heirs? V. Whether the plaintiff has personal necessity for the suit Premises? VI. Whether partial eviction will fulfil the requirement of the Plaintiff or not? VII. Whether the plaintiff is entitled for a decree for the suit premises? VIII. Whether the plaintiff is entitled to damage and if so at what rate and for what period? IX, To what other relief or reliefs, if any, the plaintiff is entitled.?
12. In the aforesaid facts and circumstances, the hearing of the suit continued under the provision of Section 14 of the Act and after appreciating the pleadings and evidence of the parties, the learned court below decreed the suit and passed the impugned judgment/order of defendants' eviction dated 24.08.2006 which is challenged by the widow and one of the sons of the original defendant, whereas the other son of the original defendant has not challenged the same and is made opposite party no,2 in the instant revision petition.
13. Learned Counsel for both the parties argued in detail and from their arguments as well as from the facts and circumstances and the materials on record it transpires that following three points are the contested issues which have to be considered for the disposal of this civil revision:
(a) Whether after the death of intervenor-defendant, the suit abated entirely for non-substitution of his heirs and legal representatives?
(b) Whether the plaintiff has bonafide personal requirement for the suit premises?
(c) Whether partial eviction of the defendant from the suit premises would satisfy the requirement of the plaintiff?
Point No.(a)
14. Learned Counsel for the petitioners has claimed that the suit should have been dismissed as abated due to death of defendant No. 2 and non-substitution of his heirs by the plaintiff who admittedly was his full brother and the suit premises was a joint family property. Although the question of title and ownership is not the main issue to be decided in an eviction suit, but the court is required to go into that issue incidentally. The plaintiff has claimed the ownership of the suit premises, whereas the original defendant as well as the intervener defendant had claimed the suit property as the joint family property, but they had clearly admitted that the plaintiff was also one of the co-owners and he has been executing documents and receiving rents on behalf of all the other co-owners. In the said circumstances, even according to the defendants' claim, the plaintiff is clearly covered under the definition of 'landlord' as provided under Section 2(f) of the Act. It is also a settled principle of law that a co-owner or co-sharer can file a suit under the Act for eviction of the tenant. Hence the suit filed by the plaintiff was clearly maintainable.
15. So far the death of the alleged co-owner, namely intervenor-defendant, is concerned, it is apparent from the records that he died much after being impleaded and also much after filing his written statement, but he did not contest the suit at the time of hearing, nor produced any evidences. It is a settled principle of law that even one of co-owners can file a suit for eviction of the tenant from the suit premises if it is required for his bonafide personal requirement. In any view of the matter, no relief was sought by the plaintiff against the said intervenor-defendant. From the facts and circumstances of the case it is quite apparent that the said intervenor-defendant Dinesh Kumar Yadav was neither any necessary party, nor even a proper party for the eviction suit and hence non substitution of his heirs after his death cannot legally result in the abatement of eviction suit.
Point no.(b)
16. Although the defendants admitted relationship of landlord and tenant between the parties and also admitted that they were paying rent to the plaintiff who had executed the rent note, but they contested the suit claiming that the plaintiff had sufficient accommodation in the suit premises for his family and that he had other houses which could have been used by him for the residence of his family if it was at all required. In support of their claim, the defendants could not produce any document whatsoever and they produced only one document Ext.-A which is the signature of learned advocate on the written statement. Apart from that they adduced five witnesses including D.W. 1 Ramjee Prasad, who was a formal witness, whereas D.W. 2 and D.W. 4 were defendant Nos. 1A and 1 and D.W. No. 3 and 5 were Md. Shafiullah Khan and Ramjee Mahto. The said witnesses could not validly disprove the plaintiffs claim of personal necessity, rather D.W. 4, who was defendant No. 1 (petitioner No. 1) herself admitted in her deposition that the plaintiff was living with his children on the ground floor just at the adjacent back of suit premises. This statement clearly falsified the claim of the defendants themselves in their written statement in which they had claimed that the plaintiff was not residing in the ground floor, rather he with his family was residing on the first floor.
17. On the other hand, the plaintiff adduced eight witnesses, out of whom P.W. 3 was the plaintiff himself, whereas P.W.s 4, 5 and 6 were formal witnesses and P.W.s 7 and 8 were the photographer and the expert who proved the alleged disputed signature of the original defendant Darshan Singh Sachdeva marked Ext-D and D/12 as forged and fabricated after comparing with original signature of Darshan Singh Sachdeva on Ext. X/2 and X/3. The plaintiff, as P.W. 3, along with P.W. 1 Nagendra Prasad Gupta and P.W. 2 Yadunandan Singh fully supported the pleadings in the plaint who were also supported by documentary evidence adduced by the plaintiff, such as Ext.-1 series which are PMC tax receipts, Ext.-2 series which are Kiryanama dated 01.04.1993 and 09.04.1993, Ext.-3 which is registration certificate issued by the Labour Department, Ext.-4 which is PMC notice, Ext.-5 certified copy of voter list, Ext.-6 series which is electric bills, Ext.-7 series which are original money receipts of BSEB, Ext.-8 series which are original lease deeds, Ext.-9 series which are photographs Of documents compared by experts. Ext.-10 which is report of expert, Ext.-X series which are photographs to prove the ownership and personal necessity of the plaintiff.
18. From the aforesaid materials on record it is quite apparent that the plaintiff is living with his family in a portion of the ground floor of the suit premises which contained only one bed room-cum-drawing room-cum-dining room-study room, one small room containing three tier beds for the use of children, a kitchen, a latrine and a bath room and the said premises is being used by the plaintiffs family including three college going children, out of whom one was a daughter. The said two living rooms were required by the plaintiff for use as bed rooms for himself and his daughter separately, whereas the two rooms which are involved in the suit are required by the plaintiff, one for the use of his sons as their bed room and study room, whereas other room was required by the plaintiff for using it as drawing -cum-dining room. These facts have been fully proved by the materials on records.
19. So far the accommodation in the other four houses as claimed by the defendants is concerned, the defendants have miserably failed to show that the said houses exclusively belonged to the plaintiff or he was the landlord of any of them. They have also failed to show that any portion of the said house was vacant which could be used by the plaintiff for his purposes. In this connection it is necessary to note that admittedly the plaintiff along with his family is living in the suit house, whereas the other houses claimed by the defendants are situated far awary either in Patna City or in Meethapur in which no member of the plaintiffs family admittedly resides. In the said circumstances, it is quite apparent that the necessity of the plaintiff cannot be fulfilled by the said houses as no evidence with regard to alternative accommodation had been adduced by the defendants. Furthermore only by demolishing the intervening wall of the plaintiffs present residence and the suit premises, the plaintiff would be able to have four rooms block with bathroom, latrine and kitchen fulfilling bonafide requirement of his entire family.
Point no.(c)
20. So far the question of partial eviction is concerned, although the defendants-petitioners had raised this issue in this revision, but the plea of partial eviction was neither raised by them in their written statement or in their evidence either oral or documentary, nor at any stage of the case they had pleaded or tried to show that partial eviction shall satisfy the personal necessity of the plaintiff. This plea has not to be separately raised by the plaintiff as he had specifically claimed that he required the entire suit premises as a whole for his bonafide requirement.
21. Learned Counsel for the petitioner has submitted before this Court that the two shop rooms involved in this case measured 11' X 8' and 10' X 7' approximately. The measurement of the said rooms clearly show that they are barely sufficient for being used as drawing room-cum-dining room and bed room and partial eviction of the defendants from the suit premises shall neither satisfy the plaintiffs requirement nor it would be practical in the facts and circumstances of the case.
22. In the aforesaid facts and circumstances and on the basis of the aforesaid findings of this court,-there appears to be no illegality in the impugned order/judgment of the learned court below, nor any finding of that court with respect to the aforesaid points can be discarded. The other findings of the learned court below on other points are dependent on the findings regarding the aforesaid issues and hence the impugned order is legal and proper. Accordingly, this civil revision is dismissed.