Kalyani Bhan v. Roquia Parveen Yunus — 1995 DIGILAW 682 (PAT)

Judgment Chaudhary, S. N. Mishra, J. 1. In this civil revision-application defendants-petitioners have challenged the judgment and decree, dated 16.8.94 passed by the learned Munsif-III, patna in Title Eviction Suit No.36 of 1991 whereby the suit for eviction filed by the plaintiff-opposite party has been decreed. The plaintiff filed a suit for eviction on 8.5.91 being title Eviction Suit No.36 of 1991 under Sec.11 (1) (c) of the Bihar buildings (Lease, Rent and Eviction)Control Act, 1982 (hereinafter referred to as the Act), for eviction of the defendants-petitioners from the suit premises on the ground of personal necessity. 2. The case of the plaintiff, in short, is that by virtue of a sale-deed 15.12.71 executed by Md. Yahiya yunus through his Attorney, the plaintiff became absolute and accordingly, the defendants denied the bona fide need of the plaintiff. 3. On the basis of the pleadings of the parties, the Trial Court framed the following six issues : 1. Whether the suit as framed is maintainable? 2. Whether there is relationship of landlord and tenant between the plaintiff and defendants? 3. Whether the requirement of the plaintiff for the suit premises is reasonable and bona fide ? 4. Whether the requirement of the plaintiff will be satisfied by the partial eviction of the suit premises? 5. Whether the plaintiff is entitled to a decree of eviction against the defendants from the suit premsies? 6. To what other relief or reliefs the plaintiff is entitled to? on the consideration of the oral as well as the documentary evidence, the Trial Court has decided all the aforesaid issues in favour of the plaintiff and decreed the suit. 4. Learned counsel for the petitioners has challenged the judgment and decree passed by the Court below on the grounds, firstly, that there is no relationship of landlord and tenant between the plaintiff and the defendants inasmuch as the husband of the plaintiff Md. Yawar yunus is the real owner of the premises, in question. The learned counsel, in support of his contention, has relied upon the rent receipts granted by the husband of the plaintiff. Secondly, that the plaintiff does not require the suit premises bona fide, reasonably and in goodfaith for her own use and occupation, inasmuch as the husband of the plaintiff is still in service living abroad. The learned counsel, in support of his contention, has relied upon the rent receipts granted by the husband of the plaintiff. Secondly, that the plaintiff does not require the suit premises bona fide, reasonably and in goodfaith for her own use and occupation, inasmuch as the husband of the plaintiff is still in service living abroad. It has been next submitted that the personal necessity of the plaintiff with respect to the premises, in question, even for running a Nursing Home for her daughter does not exist as the daughter is still in America. It is also alleged that the plaintiff and/or her husband is not capable of running a Restaurant business. Lastly, it has been submitted that the plaintiff is the benamidar of her husband Md. Yawar Yunus, who is the real owner and the landlord of the suit premises. The learned counsel for the petitioners has also challenged the finding on the question of partial eviction of the petitioners from the premises, in question, as the Court below has not taken into consideration the other properties available at the disposal of the plaintiff inasmuch as the plaintiffs husband also possesses about 3 kathas of land on s. P. Verma Road besides other properties, which is most suitable for the alleged business of the plaintiff. Over and above, learned counsel for the petitioners has also challenged the maintainability of the suit on the ground that the plaint was not verified in accordance with law and the person who has signed the plaint and sworn the affidavit on the basis of the power of attorney, which is not admissible in the eye of law. In support of his contention, learned counsel for the petitioners has placed the statements of witnesses examined on behalf of the plaintiff in order to show that the plaintiff husband is in possession of the other properties apart from the suit premises. He has also relied upon the decision of the supreme Court in the cases of M. M. Quasim V/s. Manohar Lal Sharma and others ( AIR 1981 SC 1113 ) and matulal V/s. Radhelal ( AIR 1974 SC 1596 ). 5. He has also relied upon the decision of the supreme Court in the cases of M. M. Quasim V/s. Manohar Lal Sharma and others ( AIR 1981 SC 1113 ) and matulal V/s. Radhelal ( AIR 1974 SC 1596 ). 5. The learned counsel for the plaintiff opposite party, on the other hand, has submitted that the plaintiff requires the entire premises bona fide, reasonable and in good faith for personal necessity of her husband and daughter for running the Restaurant business as well as a Nursing home. It has been further submitted that the plaintiff is the real owner of the suit property on the basis of the judgment and decree passed in Title suit No.105 of 1990. It has been further submitted that on the basis of the judgment and decree aforesaid, the name of the plaintiff was mutated in the records of the Patna municipal Corporation, and, accordingly, the receipts are also being issued in favour of the plaintiff. It has been further submitted that the plaintiff is the real and absolute owner/landlord of the suit premises on the basis of the judgment and decree passed in the aforesaid title suit by the 1st Subordiante Judge, patna, and as such, she is not a benamidar of her husband, Md. Yawar Yunus. Learned counsel further denied that there is any other suitable premises at the disposal of the plaintiff and/or her husband for running the aforesaid business. It has been further submitted that the term of service of the husband of the plaintiff has already expired and he is ready to start the restaurant business. It has further been submitted that the daughter of the plaintiff has passed the M. B. B. S. Examination and the plaintiff is contemplating to construct a Nursing Home for her daughter. 6. I have heard learned counsel for the petitioners and the opposite party and perused the materials on record including the judgment under challenge. As regards the submission of the learned counsel for the petitioners that the plaintiff is not the real owner of the suit premises, as she is only benamidar of her husband, Md. 6. I have heard learned counsel for the petitioners and the opposite party and perused the materials on record including the judgment under challenge. As regards the submission of the learned counsel for the petitioners that the plaintiff is not the real owner of the suit premises, as she is only benamidar of her husband, Md. Yawar Yunus, the Court below, after taking into consideration the relevant evidence on record including judgment passed by the learned 1st Subordinate Judge, Patna, in Title Suit No.105 of 1990, and the order of mutation recorded in her favour, has come to a finding that the plaintiff is the owner of the suit premises and the defendants are her tenants and, accordingly, held that the relationship of landlord and tenant is fully established betwen the plaintiff and the defendants and consequently, i am not inclined to interfere with the aforesaid finding of the court below. As regards the requirement of the suit premises bona fide, reasonably and in goodfaith for personal use and occupation of the plaintiff, the Trial Court has considered the oral evidence of the witnesses adduced on behalf of the parties as well as the documentary evidence available on the record and recorded its finding that the plaintiff requires the suit premises bona fide, reasonably and in goodfaith for her personal occupation. I have considered the evidence of the witnesses adduced on behalf of the parties and i am of the view that the Court below has recorded its finding on the basis of the evidence available on the record, and, as such, I am not inclined to interfere with the same. Here I may observe that assuming for the sake of argument that the suit premises belongs to the husband of the plaintiff, even then the wife is not precluded from filing a suit for eviction of the defendant-tenant for the personal use and occupation of the husband and daughter of the plaintiff. Whether the plaintiff is a benamidar of her husband Md. Yawar yunus, that does not make any difference, in the eye of law, for the purpose of filing a suit for eviction against the tenants. Whether the plaintiff is a benamidar of her husband Md. Yawar yunus, that does not make any difference, in the eye of law, for the purpose of filing a suit for eviction against the tenants. The decisions cited by the learned counsel for the petitioners on this issue does not, in any way, help the petitioners and, particularly, in the facts and circumstances of this case, the ratios laid down in the aforesaid cases are not applicable to the instant case and, as such, it is not necessary to discuss them in any detail. So far as the submission of the learned counsel for the petitioners to the effect that the plaintiff and her husband are in possession of the other properties will also not come in the way of the plaintiff inasmuch as it is the prerogative of the plaintiff to choose the premises which will suit the plaintiff for her and/or their requirements. The tenants, therefore, cannot dictate the plaintiff-landlord for purpose of selecting the premises for her and/or their personal use. So far as the question as to whether the retirement of a landlord-plaintiff from service in the near future can be a good cause of action for filing a suit for eviction on the ground of personal necessity, I am of the view that the answer is in the affirmative. Admittedly the husband of the plaintiff was in service at the time of filing of the suit, but the term of his service was due to expire shortly thereafter and her daughter, after having completed the M. B. B. S. Course, is engaged in her advanced studies abroad and is likely to complete the said advanced studies soon. In such a situation, it cannot be said that there was no real cause of action for the plaintiff to institute a suit for eviction of the tenant-defendants. It is well known that the litigation takes a pretty long time to get the house vacated and if the step is not taken in advance, the landlord will be left with no remedy but to go on streets. I am supported by a decision of the Apex Court in the case of Ramesh Chandra Agrawal and others V/s. Bhushan. Ram, 1989 (2) B1j 312 (SC ). I am supported by a decision of the Apex Court in the case of Ramesh Chandra Agrawal and others V/s. Bhushan. Ram, 1989 (2) B1j 312 (SC ). A reference may also be made to a decision in the case of tapsendra Nath Lal V/s. Norodh Baran haldar (1986 BLJR 734 ). The contention of the learned counsel for the petitioners that the plaintiff-opp. party had no cause of action to file the suit is, accordingly, rejected. 7. On the question of partial eviction of the defendant-petitioners from the premises, in question, it has come in evidence that there are altogether five rooms in the entire suit premises and there is only one passage for entering into the suit premises. Taking into consideration the requirement of the plaintiff, the court below has recorded its finding that the partial eviction of the defendants from the premises in question will not satisfy the reasonable requirement of the plaintiff. I have examined the evidence on this issue as well and I am of the view that the court has correctly recorded its finding and, accordongly, I do not find any illegality in the same. 8. I have considered the case of the respective parties in great detail and perused the evidence on record including the impugned judgment and i do not find any illegality in the judgment under challenge. Accordingly, this civil revision application is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. 9. Before, however, I part with this case, I may observe that if the plaintiff and/or her husband or daughter fails to start his or her respective business within six months from the date of tenant-petitioners vacating the premises, in question, the defendant-petitioners shall be entitled to file a petition for restoration of possession of the suit premises in their favour. Revision dismissed.