Patna High Court
Ashok Mohan Ghosh vs Bishnu Pada Chowdhary on 1 May, 1997
Equivalent citations: 1997(2)BLJR1044
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb
JUDGMENT Prasun Kumar Deb, J.
1. This revision petition has been preferred by the petitioner abovenamed under Section 14 (8) of the Bihar Buildings (Lease, Rent and Eviction) control Act, 1982 (the Act) against the judgment and decree dated 30.3.1996 passed by the Additional Munsif, 2nd court, Ranchi, in Eviction Suit No. 61/5 of 1990-94 whereby the learned court below has decreed the aforesaid suit and directed the defendant-petitioner to hand over the vacant possission of the suit premises within two months next from the date of judgment.
2. The plaintiff-opposite party filed Eviction (Title) Suit No. 61/5 of 1990-94 in the court of Munsif, Ranchi, for decree of ejectment of the defendant-petitioner from the suit premises on the ground of personal necessity alone as contemplated under Section 11 (1) (c) of the Act.
3. The factual position remains as stated by the plaintiff in the plaint that the suit premises in which the petitioner is living with the family which has been fully described in the Schedule of the plaint in the ground floor of the double storied building situated at Line Tank Road, Ranchi, under Municipal Holding No. 1200, ward No. VII of the Ranchi Municipality Corporation. The suit house as a whole was built by the plaintiff. The first floor of the building where the plaintiff is residing at present with his wife and one of his unmarried daughter and one grand son through one of his married daughters was constructed by the plaintiff's son Debasis Chaudhury from his own income and as such there was a family arrangement to the effect that the first floor was allotted to the plaintiff's son whereas the ground floor was allotted to the plaintiff and his wife. The further case of the plaintiff is that his son Debasis Choudhary is in service at Calcutta and he has reached the marriageable age and as such, the first floor should be reserved for the accommodation of his son after his marriage and even if the plaintiff's son is posted away from Ranchi, at least one of the larger room shall be kept separate for their own use and occupation. It is the further case of the plaintiff that after retirement from service, the plaintiff has lost vision of one eye and also suffering from various ailment including that of heart disease and he has been advised by the doctor not to use stairs and as such he requires the suit premises for his own use and occupation also. He has further stated as regard, that as regards the bonafide necessity that one of the plaintiff's daughter who is unmarried and is a School Teacher by profession has taken various training and she wants to start Coaching Classes in a portion of the suit premises in various subjects in which she has received training. One son of the deceased daughter of the plaintiff has been brought in his custody for further study and he requires a separate room for study purpose and, as such, the entire suit premises is necessary to be brought on the fold of the plaintiff's son his proper accommodation on the genuine bonafide necessity, as stated above. Thus the necessity of the plaintiff is three folds:
(i) That because of the ailment, he cannot reside in the Ist floor, and he needs to be shifted to the ground floor;
(ii) The unmarried daughter of the plaintiff requires at least two rooms and a kitchen for the purpose of opening her coaching class.
(iii) A separate/exclusive room for study of his grand son through his deceased daughter.
(iv) A room is necessary to be kept reserved for the purpose of accommodation of his son who is going to marry soon.
4. Thus according to the plaintiff, his personal necessity is bonafide and in good faith. It is also in the plaint that although there is a out house on the ground floor consisting of two rooms, Kitchen, bath-room separated from main building by a distance but the same is not suitable for the plaintiff's requirement. Admittedly, the suit premises consists of three large rooms, two small rooms, one Kitchen and one bath rom and two Varandah whereas the first floor consists of two bed room, one drawing room, one study room, dining space, kitchen, a bath-room and a balcony.
5. On receipt of notice, the defendant appeared and obtained leave of the court as required under Section 14 (4) of the Act and then filed written statement, contested the suit on the ground that the suit is false, frivolous, vexatious and not maintainable and is vindictive in nature as the defendant-petitioner had to object to the Rent Controller for fixation of fair rent when the. plaintiff was demanding huge amount towards enhancement of the rent. There was also a petition by the defendant before the Rent Controller under Section 10 of the Act for restoration of the amenities of water supply which was withheld by the plaintiff with a definite ulterior motive. According to the defendant, the requirement of the suit premises was not at all bonafide and in good faith.
6. According to the defendant, the present occupation of the plaintiff is more than sufficient for the use and occupation of himself and his family members. Moreover, if the petitinoer feels any difficulty in rising stairs then he can very well stay in a room in the ground floor which had been kept vacant for a long time. According to the defendant, there were various alternative accommodation in his possession in the town of Ranchi. The present house is situated at Line Tank Road, while the plaintiff has got two other buildings situated at Kadru, Ranchi, which are still lying vacant. During the course of proceeding in the eviction suit, the plaintiff filed a petition under Order VI, Rule 17 of the Code of Civil Procedure for amendment of the plaint stating, inter-alia, that subsequent to the filing of the suit, the plaintiff's another tenant, namely, Ranjan Baraik occupying two rooms, Kitchen and bath room along with courtyard has fallen vacant and if the plaintiff is given in possession of the suit premises in the ground floor, then the defendant i'' lieu of it may shift to the vacant tenanted premises.
7. Objection was filed against the alleged amendment by the defendant stating that the rooms which had been vacated by Ranjan Baraik were not suitable for his shifting as the rooms were small which would not suffice his purpose. Be it what it may, the suit continued for eviction on the abovementioned ground of bonafide necessity. On behalf of the plaintiff, several witnesses have been examined and documents have also been produced. On behalf of the defendant also, witnesses have been examined denying the contention of bonafide necessity.
8. The first ground of bonafide necessity of the plaintiff is that the first floor of the house where the plaintiff is now residing with his wife, spinster daughter Stimita Choudhary and a grand son through his deceased eldest daughter had been fallen into the share of his only son Debasis Choudhary by a family arrangement which was oral at the beginning but had been taken into black and white afterwards and the suit premises i.e. the ground floor where the defendant is residing is in the share of the plaintiff and his wife and as such the plaintiff wants to shift into the ground floor by evicting the defendant keeping the first floor for the accommodation of his own and his newly married wife. Admittedly, the son is posted in Calcutta and during vacation he comes to stay with his parents. About this family arrangement, how far it has got the legal effect is a burning question although there is nothing on the evidence on record but from the action of the plaintiff and his family members it infers that the plaintiff is governed by Dayabhaga School of Hindu Law and under Dayabhaga School of Hindu Law, during the life time of father, his sons, daughter and wife have got no right in the property. They may be considered only as heirs apparent in future. In Mitakshara School of Hindu Law, copartener gets right over the ancestral property by birth but under Dayabhaga School of Hindu Law, only on the death of the predecessor, the heirs get share. So family arrangement cannot be considered as partition when the persons party to the agreement except the plaintiff himself had no share in the property. Thus, these documents of family arrangement in between the plaintiff and his son, daughter and wife cannot be binding against the third party and cannot be backed upon also for the purpose for which it has been pleaded.
9. Mr. N.K. Prasad, appearing for and on behalf of the plaintiff-opposite party could not give the answer when put to board regarding the legal validity of such family arrangement. On a latter date, reference of two judgments of the Supreme Court had been made, namely, Ram Charan Das v. Girja Nandini Devi and Ors. and Maturi Pullaiah and Anr. v. Maturi Namsimham and Ors. AIR 1966 Supreme Court 1836. Both these cases relate to the persons of Mitakshara School of Hindu Law. It was held by the Supreme Court that such family arrangement is binding on the parties without considering their right of succession or having a claim to a share in the disputed property. Both these decisions had been made on the broad principle enunciated by the Privy Council in Ramgouda Annagouda v. Bhausaheb AIR 1927 PC 227. Thus taking worst view of the family arrangement in respect of future heirs have got binding on the persons who had entered into it but the same cannot be asserted as of right against third party or the analogy of the same cannot be taken to have advantage against a third party. So long the plaintiff is alive, he remains owner of whole of the property and if any arrangement has been made regarding possession of his son and daughters, that might be binding against them for a limited purpose and that too such family arrangement have legal semblance if there was any dispute with regard to possession amongst heirs apparent, but there is no evidence to that effect and practically no discussion has been made by the learned court below regarding the legal validity of such family arrangement or its binding effect or its assertion against third party.
10. The other case for bonafide necessity is with regard to opening of coaching class of craftmenship by the plaintiff's spinster daughter Stimita Choudhary. She has already crossed marrigeable age and definitely he is worried about her further settlement but it is not that Stimita Choudhary is depending on her Coaching class of craftmenship. She is already employed as a Teacher and as because she has got some Diploma in craftmenship and music, she took some coaching classes, perhaps for her extra income. Whether such opening of coaching Classes was really a necessity for her settlement in life has not been brought in evidence by any where rather it comes from the evidence that she has opened up such coaching classes in a rental house else where and now she is doing in the first floor where she resides along with her parents but the accommodation is small. Whether her reguirement comes within the purview of bonafide necessity is a question to be decided but the impugned order is silent about such decision and discussions also have not been made in the light as has been mentioned above.
11. The third ground of bonafide necessity is with regard to the accommodation of his son and his newly married wife who are admittedly residing in Calcutta for the purpose of his service. He often comes here and it is stated at the Bar that he desired that his family might have been sent to Ranchi for permanent settlement but I do not find any such evidence. A desire cannot take the place of bonafide necessity even if such desire may have some forceful intention. This point in its proper perspective has also not been considered by the learned court below. Future probability whether comes within the bonafide interest or not is also a question to be decided but that has not been decided by the learned court below.
12. The fourth ground of bonafide necessity is that whenever the married daughter comes to visit her parents then there is lack of accommodation. The word 'whenever' definitely suggests all future probability and it requires to be decided whether it comes within the purview of the bonafide necessity or not.
13. The fifth ground of personal necessity is with regard to study room of the grand son of the plaintiff through his deceased daughter. From the evidence it appears that he had studied at St. Xavier's College by living in the house of the plaintiff, but he has got his own house in another State. Sentimental attachment to the grand son for bringing him to the fold of the plaintiff and requiring his study room whether can come under the bonafide necessity or not is another question.
14. The vital ground of personal necessity was pressed from the side of the plaintiff regarding his ailment of heart disease for which, as per the doctor's advice, he is not to use stair case, but it is in evidence that two portions of the ground floor is still vacant and in possession of the plaintiff.
15. It is submitted by Mr. N.K. Prasad, learned Counsel for the opposite party that small room in the ground floor cannot accommodate the plaintiff and his wife for their stay in the ground floor, then also there is another house which has been stated to have become vacant by the tenant who was inducted after Ranjan Baraik had left. Whether that portion was also not sufficient for the plaintiff's accommodation had not been decided. There is another out house in the ground floor but no comparative study was made either in the evidence or in the impugned judgment regarding necessity and it suffice by the existing vacancies. The plaintiff seems to be big landlord having a house where the suit premises are situated and two more houses at Ranchi itself in Kadru area. The partial eviction although is decided by the learned court below is not at all the effective decision on the face of it. He has just arrived at a decision that the existing vacancies are not sufficient and partly eviction is not possible. If one room is vacant and in possession of the plaintiff in the ground floor and if another room is given to him by partial eviction then whether that would suffice the necessity of the plaintiff or not had not been decided.
16. Mr. A. Sahay, learned Counsel appearing for and on behalf of the petitioner has strenuously argued that this ejectment suit is nothing but a counter-blast when the petitioner moved before the House Rent Controller for stopping of bare necessities by the landlord and that the document of family arrangement is only a procured and manufactured one for the purpose of filing of this eviction suit. I have already stated in the foregoing paragraphs, both the lengthy judgment did not at all decipher the points necessary for the purpose of coming to a just decision of personal bonafide necessity of the plaintiff.
17. In that view of the matter, this civil revision application is allowed, The impugned judgment of eviction is hereby set aside and the matter is sent back to the court below again for fresh decision in the light of the observations made in this judgment after giving opportunity of adducing more evidence from the side of the parties.