Patna High Court - Orders
Smt. Neelam Devi & Ors. vs Mostt. Sharda Devi & Ors. on 10 December, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.724 of 2010
1.SMT. NEELAM DEVI, W/O RAJENDRA SAHU AND
DAUGHTER OF LATE SHRI HAZARI SAHU.
2. MOST. SARASWATI DEVI, WIDOW OF LATE SRI
RAMESHWAR SAH.
3. MOST. SEEMA DEVI, WIDOW OF LATE RAM
PRAKASH SAH.
4. CHANDAN SAH.
5. SUSHIL KUMAR SAH.
6. ARUN KUMAR SAH.
7. VIKKY KUMAR SAH.
4 TO 8 MINOR SONS OF LATE RAM PRAKASH SAH.
8. POOJA KUMARI, MINOR DAUGHTER OF LATE
RAM PRAKASH SAH.
4 TO 8, MINORS UNDER THE CARE AND
GUARDIANSHIP OF THE NATURAL GUARDIAN
MOTHER (THE PETITIONER NO.3) AND
REPRESENTED THROUGH HER.
ALL 1 TO 8 RESIDENT OF MOHALLA-KOTWALI
CHOWK, PARGANA-HAWELI, P.S- TOWN
DARBHANGA, DISTRICT-DARBHANGA.
(DEFDT. 1ST PARTY OF THE EV. SUIT).
..........PETITIONERS.
Versus
1.MOSTT. SHARDA DEVI, WIFE OF LATE LAKSHMI
MAHTO.
2. RAJ NARAYAN MAHTO.
3. RAJ KUMAR MAHTO
2 & 3 SONS OF LATE LAKSHMI MAHTO.
RESIDENT OF MOHALLA- MAULEGANJ, PARGANA-
HAWELI, P.S.- LAHERIA SARAI, DISTRICT-
DARBHANGA.
(SUBSTITUTED HEIRS OF PLAINTIFF LAKSHMI
MAHTO)
4. JAGDISH NAYAK, SON OF LATE SRI JOKHAN
NAYAK, RESIDENT OF MOHALLA-SENAPA,
PARGANA-HAWELI, P.S.- TOWN DARBHANGA,
DISTRICT-DARBHANGA.
(PLAINTIFF NO. 2 IN THE COURT BELOW).
........OPPOSITE PARTY 1ST SET.
5. RAJ KUMAR NAYAK, SON OF LATE SRI JOKHAN
NAYAK, PROPRIETOR OF REETA MEDICAL HALL.
6. CHUNCHUN THAKUR, SON OF MAHENDRA
THAKUR, PROPRIETOR OF SUNITA HAIR STYLE.
7. PAWAN BHAGAT, SON OF VISHWANATH
BHAGAT.
PROPRIETOR OF PAWAN GENERAL & FANCY
STORES.
2
ALL AT MOHALLA-KOTWALI CHOWK, NAKA NO.-6,
P.S. TOWN DARBHANGA, DEFDT. NO. 3 TO 5 IN THE
SUIT.
(DEFENDANTS-2ND SET IN THE SUIT) ...OPPOSITE
PARTY 2ND SET.
-----------
03/ 10.12.2010Having heard Mr. Rai Shivaji Nath, learned counsel appearing on behalf of the petitioner and Mr. Ramesh Kumar Chaudhary, learned counsel for the opposite party no. 1 to 4, this Court is of the considered opinion would find it difficult to accept the submission of Mr. Nath, learned counsel for keeping this Civil Revision Application pending till disposal of Second Appeal no. 19 of 2006, inasmuch as this very aspect was also earlier considered by this Court in the order passed by this Court on 18.09.2009 in Civil Revision No. 1787 of 1998 between the same parties, whereby and whereunder, this very submission was considered and rejected in the following terms:-
"On the other hand, counsel appearing on behalf of the plaintiffs-opposite parties has submitted that the said eviction suit was heard and adjudicated with Title Suit No. 1 of 1995 and both of them have been disposed of by a common judgment dated 24.5.1998 and whereas title suit filed by the petitioners claiming title of the tenanted premises has been dismissed, the title suit filed by the plaintiffs- opposite parties seeking the relief of eviction had been decreed. It has also been submitted the petitioner appeals Title Appeal No. 11 of 1997 against that 3 part of the judgment of the trial court in Title Suit No. 1 of 1995 has been also dismissed by the lower appellate court which is now the subject of a pending second appeal before this Court in S.A. No. 19/2004 and as such the findings of facts on the issue of title of the suit property in the eviction suit is in favour of opposite party. He has further submitted that as the petitioners had concentrated in getting their title of the suit promises declared I their favour without contesting the plea of personal necessity of the opposite parties raised in their eviction suit, the petitioners can question the findings in this regard in the civil revision application. He has also taken a stand that the petitioners had also not raised a plea of fulfillment of their need by their partial eviction and as such the trial court did not commit any error in not recording any finding on this aspect. Having given anxious consideration to the aforesaid submissions of counsel for both the parties as also taking into account the evidence on record the court must hold the findings of facts on the issue of relationship of landlord of the opposite party and tenant stand concluded in favour by the judgment of lower appellate court in Title Appeal No. 11 of 1997 affirming the judgment and decree dated 24.5.1997/6.5.1997 of the trial court and unless such concurrent findings of fact are set aside on any substantial question of law the pending S.A. 19 of 2006 by this Court the opposite parties must be held to be the landlord and the petitioners their tenant. This court taking into account but the eviction suit was filed in 1992 on the ground of personal necessity by the opposite parties, it would not keep the matter pending only on account of filing of S.A.
19 of 2004 by the petitioners.
Let it be noted that the aforesaid order dated 18.09.2009 in C.R No. 1787 of 1998 between 4 the same parties in absence of any appeal has become final and therefore it will be difficult for this Court to take a different view for keeping this Civil Revision application pending till disposal of second appeal no. 19 of 2006.
Even otherwise the matter could not be kept pending because if the petitioners succeed in their pending second appeal, arising out of a title suit and title appeal, they can take back whole property by way of restitution but on the other hand as the period of 19 years has already been lost by the plaintiff opposite party in the matter of eviction from the suit premises despite his success in title suit and title appeal, there can hardly be any explanation much less any justification for allowing the petitioners to continue with the possession of the suit premises. A suit for personal necessity which under law, must be disposed off within a period of three months in terms of section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the B.B.C. Act), cannot be allowed to linger in such manner and therefore this Court would reject the first submission of the learned 5 counsel for the petitioner for keeping this Civil Revision pending till disposal of the second appeal no. 19 of 2006.
On merits of this case, Mr. Rai Shivaji Nath, learned counsel for the petitioners has submitted that the Court below has committed an error in rejecting the case of the petitioners on the issue of partial eviction. In this regard his submission is that since the suit premises consist of residential portion as also three shops over the area of 1600 sq. feet and therefore even if there were two plaintiffs requiring the premises for their business purposes, the two shops would have been allotted to them leaving at least one shop with the petitioner. He has further submitted that in view of the admission of the plaintiffs in their deposition of having other houses in the same town, their plea that partial eviction could not have served their personal necessity ought to have been rejected by this Court below. He has finally contended that the Court below has committed a grave jurisdiction error in not considering the issue of partial eviction in terms of proviso-II of section 11(1)(c) of the 6 Act and in this regard has placed his reliance on the Division Bench Judgment in the case of M/s Bharati Pustak Kendra vs Chhedi Lal Daruka Daruka reported in 1992 (2) PLJR 692.
Per contra Mr. Choudhary supporting the impugned order has submitted that this issue of partial eviction was specifically remitted back to the Court below by an order dated 18.09.2009 in Civil Revision No. 1787 of 1998, whereafter the plaintiffs had not only amended their plaint but they had also led evidence to show that the partial eviction could not have served the personal necessity of the two plaintiffs. In this context, he has also referred to the deposition of the witnesses of the petitioner who were examined to show that a specific plea was taken by them that they were not prepared to vacate any part of the premises. On the basis of such evidence, it has been contended by Mr. Choudhary that when the petitioners had not even taken a plea of their need not being fulfilled by partial eviction, the natural conclusion would be that they were in fact not prepared for such partial eviction.
In the considered opinion of this Court, 7 the impugned order passed by the Court below, it has meticulously gone into the issue of partial eviction which was specifically remitted back by this Court in the order dated 18.09.2009. It has to be noted that on an earlier occasion the judgment and decree of eviction dated 24.05.1997 while being affirmed on all other accounts had been set aside on the ground of partial eviction, wherein, this Court had held as follows:
"This Court however finds merit in the last submissions of the learned counsel for the petitioners as with regard to the impugned judgment being bad in absence of any finding on the issue of partial eviction. Under the proviso of section 11 (1) (c) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the B.B.C. Act) it is infact mandatory on the part of the court to consider the issue of partial eviction by recording a finding as with regard to reasonable requirement of such occupation of the plaintiff landlord being satisfied by evicting the tenant from the part only of the building. Counsel for the petitioners-plaintiffs-opposite parties also does not dispute this position that the issue of partial eviction has not at all been decided, but then he has submitted that as there was no pleading on this score made by either of the parties, it was wholly discretionary for the court below to consider the question of partial eviction. In the considered opinion of this Court the said stand of the opposite parties, the plaintiffs in the eviction suit can not be accepted in view of the following provisions under Section 11(i)(c) of the B.B.C. Act which reads as follows.:-8
"Eviction of tenants - (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:-
(a)-------------------
(b)-------------------
( C )Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord. Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest 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, which portion shall henceforth constitute the building within the meaning of Clause (b) of section 2 and the rent so fixed shall be deemed to be the fair rent fixed under section 5."
(d)-----------------------
(e)-----------------------
(f)------------------------
(g)------------------------
From reading of the aforementioned proviso of section 11 (c), it becomes clear that before a tenant is evicted on the ground of personal necessity of landlord a specific finding has to be recorded on the issue of partial eviction. This aspect of the matter is no longer resintegra inasmuch as both the Apex Court in the case of „Krishna Murari Prasad Vs. Mitar Singh. reported in 1994 B.B.B.C.J. (SC) 37 and this Court in the case of Smt. Panna Devi and ors. Vs. Atma Ram reported in 1996(1) B.L.J. 523 has held that an eviction suit under the B.B.C. Act on the ground of personal necessity can not be 9 allowed without recording a finding on partial eviction. Thus this court without disturbing with the findings on the court below in the impugned judgment on the issue of landlord-tenant relations by or personal necessity in favour of the opposite parties and against the petitioners would remit the matter to the court below only for rehearing of the suit only on the limited question of partial eviction". For that purpose the court below will give a month's time from the date of receipt/production of a copy of this order to the plaintiffs-opposite parties to introduce any further pleadings in the plaint only on the issue of partial eviction and the court below will give exactly same time of one month to the defendants-petitioners to file his additional written statement confining him again to the issue of partial eviction only and thereafter the parties will be given time to lead their evidence, oral and documentary, only on the issue of partial eviction and such evidence must be completed by both the parties within a period of two months, each parties having only one month for adducing such evidence. Argument on the issue of partial eviction also must be concluded within a period of one month from the date of adducing of evidence by the parties and the finding as with regard to partial eviction shall be recorded by the court below within a period of six weeks on closing of the argument by both the parties and the parties will have an opportunity to assail such findings on partial eviction only before this Court in a Civil Revision Application under Section 14(8) B.B.C. Act, which taking into consideration that it is an eviction suit of 1992 only on the ground of personal necessity will be decided expeditiously."
It is not in dispute that after the issue of partial eviction was remitted by this Court, the plaintiff had amended the plaint by 10 incorporating one specific paragraph to the following effect:-
"from the entire suit premises as the partial suit evidence of the defendants will not serve the legal necessity of the plaintiffs".
The Court below has recorded that though the additional written statement was filed by the petitioners but this aspect of the matter was not controverted. It has further been recorded that no evidence was led by the petitioners to show that they were prepared for leaving the part of the premises to fulfil the requirement of the plaintiff opposite party by way of partial eviction. In fact the Court below has quoted the stand of the petitioners, inasmuch as, their three out of five witnesses had categorically asserted that they were not in favour of vacating any portion of the tenanted premises.
Thus from the careful reading of evidence adduced by the petitioners after remand on the issue of partial eviction it becomes clear that the Court below had rightly inferred from the connected materials that the petitioners did not agree for partial eviction. The submission of Mr. Rai Shivaji Nath, learned 11 senior counsel for the petitioners, that the Court has not to depend on the wishes of the tenants in the matter of partial eviction has to be accepted only with a pinch of salt. The offer of partial eviction for a tenant who was earlier in possession of the entire premises has to be on his own volition. If the tenant himself does not want partial eviction and show his adamant attitude to remain in occupation of the entire premises, it cannot be held that the Court can force the tenant to accept partial eviction. In fact, it is this attitude of the petitioners as clearly noted from the evidence led by them after remand which would make the judgment of this court in Bharati Pustak Kendra (supra) clearly distinguishable. It may be found that in the case of M/s Bharati Pustak Kendra vs Chhedi Lal Daruka Daruka (supra) the stand taken was that the Court below had assumed that the defendants/tenants did not agree for partial eviction and since the Division Bench on perusal of the materials on record could find that there was no statement that the tenant did not agree for partial eviction in the whole premises, that the impugned judgment refusing 12 partial eviction in the case of Bharati Pustak Kendra (supra) was found to be without any substance. In fact, the Division Bench in that regard had recorded as follows:-
"The trial court on the basis of a wrong assumption and without any material on the record held that the defendants did not agree for partial eviction and on that basis wrongly decided the aforesaid question."
Thus whatever has been held in the case of M/s Bharati Pustak Kendra vs Chhedi Lal Daruka (supra) is based on the aforementioned finding which would make a world of difference in the context of the present case. Here, as noted above, the Court has considered the issue of partial eviction and has gone into the evidence led by the parties before recording a finding that the defendant petitioners on the point of partial eviction had not made any statement nor had led any evidence to show that they were prepared to accept such partial eviction and/or that such partial eviction of the suit premises would also satisfy the personal necessity of the plaintiff.
There is yet another aspect, inasmuch 13 as, out of 16 dhurs and 16 dhurki equivalent to 1600 sq.feet, there were two families of plaintiff nos. 1 and 2 who had jointly acquired suit premises in which plaintiff no. 2 has limited share of only 6 dhurs and therefore he could get only one shop. The court below in this respect, has also noted that though oral claim was made by the petitioners with regard to the plaintiffs having other houses in the same town but nothing was brought on record by them to establish this aspect. Mr. Rai Shivaji Nath, however relies on the deposition of PW-1, one of the two plaintiffs but that also would be of no avail, inasmuch as, it has been stated therein that in the building, he was residing with his family members and the portion under occupation had no latrine, bathroom and kitchen and the other portion was already occupied by a tenant from 1990.
In that view of the matter, it cannot be said that the Court below was not aware of the comparative need of the plaintiffs, specially when it has also taken into consideration that plaintiff no. 2 had a limited interest of 6 dhur in the house and had admittedly no house for his 14 own occupation. The submission of Mr. Rai Shivaji Nath, learned senior counsel that plaintiff no. 2 had also admitted to have his own house at Senapat Mohalla also not borne from records, inasmuch as, it is only PW-1, the plaintiff no. 1 who has admitted to have his house at Mogalpura. Moreover, the court below had gone into this aspect, specifically and has held that the petitioners even after remand did not lead any evidence to show that the two plaintiffs had number of houses and their oral assertion could not have been relied.
The net impact, which would emerge from three discussions and finding, recorded by the court below is that, two families or plaintiff no. 1 and 2 who had jointly purchased the suit property were not related to each other finding it difficult to reside in their present house and thus had required possession of their house, the suit premises, for their own residential use and business purpose as categorically averred in paragraph no. 11 of the plaint and thus it cannot be said that their such requirement could have been satisfied by way of partial eviction, specially when the petitioners themselves did 15 not opt for it.
That being so, this Court does not find any infirmity in the impugned order.
In the result, this Civil Revision being devoid of any merit is hereby dismissed.
There would be, however, no order as to costs.
Ranjan (Mihir Kumar Jha,J.)