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1979 DIGILAW 31 (PAT)

Nagrajmal Baid v. Ram Rati Devi

1979-01-31

S.ALI AHMAD

body1979
Judgment 1. -this Second Appeal arises out of a suit filed by the respondents for eviction of the appellant from the suit premises and also for recovery of Rs.332,09 paise being the Municipal Tax. The suit was decreed in part by the trial court, an appeal was taken to the District Judge which was heard by the Second Additional Subordinate Judge, Purnea. The lower appellate court agreeing with the judgment and decree passed by the trial court, dismissed the appeal. Thereafter this second appeal has been filed. 2. Shortly stated, the case as made out in the plaint was that the premises in suit which consists of three chalies, originally belonged to one Birju Lal. The premises were given in lease to Rajrup Inderchandra Baid. After the death of birju Lal, the original plaintiff Jamuna Prasad and his brother Ganga Prasad came in possession of the suit premises. There was separation between the two brothers in the year 1962 and the premises fell exclusively in the share of the original plaintiff Jamuna Prasad. It is said that the original plaintiff Jamuna prasad had five sons ; three of whom were adults and they wanted to start business separately for their maintenance. It is further said that the plaintiff was not in a position to finance the big family from his limited source of income and as such he needed the premises which were in occupation of the defendants, for establishing shops to provide his three sons. It is also said that one of his sons was carrying a small shop of radio etc. , hut he had to pay exhorbitant rent and the landlord had filed a suit for eviction. The plaintiff, in these circumstances, requested the defendants-appellant to vacate the premises but the defendants did not pay any heed. Ultimately, a notice dated 20.1.1966 under section 106 of the Transfer of Property Act (hereinafter referred to as the Act) was served on the defendants terminating the tenancy with effect from the end of 23.2.1966, but in spite of that, the defendants did not vacate the premises Therefore, the suit. 3. The suit was contested by the defendants-appellant. Their case, inter alia, was that the notice under section 106 of the Act was not valid, as it did not expire with the end of the month of tenancy. 3. The suit was contested by the defendants-appellant. Their case, inter alia, was that the notice under section 106 of the Act was not valid, as it did not expire with the end of the month of tenancy. Further their case was that the plaintiff did not require the premises in question for his own occupation within the meaning of section 11 (1) (c) of the Bihar Buildings (Lease, Rent and Eviction)Control Act, 1947 (hereinafter referred to as the Control Act ). The trial court on a consideration of evidence, held that the notice under section 6 of the Act was valid, as it expired with the end of the month of tenancy. It also held that the plaintiff required the premises in good faith for his own occupation, but according to the trial Court the requirements of the plaintiff could be served by getting a decree for eviction in respect of only two chalies out of the three chalies. It, therefore, decreed the suit for eviction of the appellant from the two chalies and directed that the appellant may continue to occupy one chali which is just contiguous to the portion purchased by the defendants from ganga Prasad with vacant land adjoining that very chali at a rate of Rs.20 per month if the defendants agreed to such occupation. The prayer for a decree of Rs.3209 was also refused. The lower appellate court affirmed all the findings of the trial court and dismissed the appeal. 4. In support of this appeal Mr. Sanyal learned counsel for the appellant first submitted that the suit for eviction from the suit premises was not maintainable, inasmuch as, the notice (Ext.4) was not in accordance with section 6 of the act. Mr. Sanyal in order to support his contention, has referred to the notice itself and has drawn my attention to the following portion of the notice : "that, however, you are requested to vacate the said holding of my client, on expiry of the current month of tenancy which commenced on Magi Sudi, 9th, 2022 i. e. on or on the expiry of tenancy which expires after 15 days of the service of this notice. . . . . " The argument of the learned counsel is that the request in the notice was to vacate the premises after fifteen days of the notice and fifteen days after the notice was not the end of the month of tenancy. Admittedly, the learned counsel submitted that the end of the month of tenancy was 23.2.1966. 5 Mr. Asghar Hussain learned counsel for the respondents on the other hand, submitted that the notice must be read as a whole and if it is so done, then there is no doubt that the request was to vacate the premises with the end of the month of tenancy as it was stated that tho defendants should vacate the premises on the expiry of the current month of tenancy which commenced on magi Sudi 9th, 2022, that is, 24th January, 1966. According to him, the expression that the words "on the expiry of tenancy which expires after fifteen tdays of the service of the notice" only means that if the appellant did not admit that the month of tenancy expired on 23.2.1966, then on any day which according to the appellant, was the end of month of tenancy after fifteen days. I think that the argument of Mr. Hussain is sound. It has been held in the case of Bhagabandas Agrawala V/s. Bhagwandas Kanju and others ( AIR 1977 SC 1120 ) that the notice should not be looked into with a view to find faults in it but it should be construed in a common sense way. I have no doubt that by the impugned notice, the plaintiff asked the defendants to vacate the premises by the end of month of tenancy which admittedly expired after fifteen days of service of the notice. This point, therefore, has no substance. 6. Mr. Sanyal next urged that the finding recorded by the two courts below was that the two chalies as they stand, are not fit for carrying on business by the sons of the plaintiff and that they require remodelling. According to the learned counsel, eviction of a tenant for remodelling or reconstructing the premises was not a ground for obtaining a decree for eviction. Learned counsel in that connection referred to the decisions in the cases of H. H. Ansari V/s. Mahboob Hussain (1962 BLJR 579) and Binapani Sarkar V/s. Inderdeo Singh (AIR 1972 Patna 383 ). According to the learned counsel, eviction of a tenant for remodelling or reconstructing the premises was not a ground for obtaining a decree for eviction. Learned counsel in that connection referred to the decisions in the cases of H. H. Ansari V/s. Mahboob Hussain (1962 BLJR 579) and Binapani Sarkar V/s. Inderdeo Singh (AIR 1972 Patna 383 ). Quite true, these two cases have taken the view that the requirement by the landlord for remodelling or reconstructing the house is not a ground for eviction of the tenant. But that in my view does not serve the purpose of Mr. Sanyal. In those two cases the decree for eviction was sought for remodelling and reconstructing the house and on that account it was said that the landlord required the premises in good faith. But here the plaintiff did not require the house primarily for reconstruction or remodelling. The prime object of the plaintiff in getting possession of the suit premises was to establish his sons in business. If incidentally the premises had to be remodelled or reconstructed then that that does not mean that the decree for eviction was sought for on the ground of remodelling or reconstructing. I do not find any thing in section 11 (1) of the Control Act which prohibits the landlord from obtaining a decree for eviction on the ground of personal occupation even though he may have to re-model the building to suit his convenience. The only requirement under section 11 (1) (c) of the Control Act is that the landlord must reasonably and in good faith require the building for his own occupation or for occupation of any person for whose benefit building is held by the landlord. On the finding recorded by the court below, the plaintiff reasonably and in good faith required the building for occupation of his two sons whom he wanted to establish in business. This is my view is a permissible ground for obtaining a decree of eviction under section 11 (1) (c) of the Control Act. This point also, therefore, has no substance. 7. Lastly Mr. Sanyal submitted that the decree passed by the trial court which has been affirmed by the lower appellate court is ginexecutable, as it does not specify which of the three chalies has been allowed to be retained by the appellant. The premises admittedly consist of the three chalies. This point also, therefore, has no substance. 7. Lastly Mr. Sanyal submitted that the decree passed by the trial court which has been affirmed by the lower appellate court is ginexecutable, as it does not specify which of the three chalies has been allowed to be retained by the appellant. The premises admittedly consist of the three chalies. It appears that the appellant had purchased a house from one Ganga Prasad. The trial court has observed that the appellant may continue to occupy one chali whichi is just contiguous to the portion purchased by the appellant from Ganga Prasad with vacant land adjoining that very chali at a rate of Rs.20 per month. The description, in my view, is sufficient to identify the chali which has been allowed to be retained by the appellant on payment of Rs.20 per month. I do not think that there will be any difficulty in executing the decree for eviction with respect to other two chalies. I, therefore, see no merit in this argument also. 8. The trial court in its judgment has observed that the appellant should inform the court about his agreement within a week as to whether he is interested in retaining the 3rd chali on a rental of Rs.20 per month. No such agreement was conveyed to the trial or to the court of appeal below. Mr. Sanyal has submitted that in case his appeal was not allowed and the decree for eviction from the two chalies is upheld, then the appellant is agreeable to retain the 3id chali on payment of Rs.20 per month. In that view of the matter, it is now not necessary for the appellant to inform the court about his agreement to continue as tenant of the 3rd chali on a rental of Rs.20 per month. No other point has been urged. 9. For the aforesaid reasons, I see no merit in this appeal, which is, accordingly, dismissed with costs. Hearing fee Rs.110. Appeal dismissed.