Madan Lal Agarwal v. Binode Kumar Tantia — 1996 DIGILAW 452 (PAT)

JUDGMENT Prasun Kumar Deb, J. - The present revision petition has been filed by the defendant in Eviction Title suit no. 51 of 1989 against the eviction decree passed on 14.11.1995 by the Additional Munsif II, Ranchi. 2. Originally, the suit was filed on 4.10.1989 by Narayani Devi, predecessor of the opposite parties. The eviction was sought on the ground of expiry of the terms of tenancy and also for bonafide necessity of two sons of the original plaintiff, namely, Binod Kumar Tantia and Sheo Kumar Tantia. The suit room is a shop room in the ground floor of the building standing on M.S. Plot no. 1794 corresponding to Municipal holding no. 542 situated near over bridge, Main Road, Ranchi. 3. According to the plaintiffs, the shop room was let out to the defendant-petitioner on oral lease for eleven months commencing from 1.11.1988 and expiring on 13.9.1989 on a monthly rental of Rs. 150/-. The term of the tenancy was expired and the plaintiff reasonably and bonafidely required the same for setting up business of her two unemployed sons, namely, Binod Kumar Tantia and Shea Kumar Tantia for opening of business of Cycle, Petromax etc. 4. The defendant-petitioner on appearance after taking leave of the Court as required under Section 14 (5) of Bihar Buildings Lease, Rent and Eviction Control Act, filed written statement taking the plea that he was never a fixed term lessee rather he was in occupation of the suit property since 1968-69 as a month to month tenant. It was also asserted that the plaintiff owned a number of properties at Ranchi and was constructing a Commercial Complex at the back side of the suit property and for such construction, the plaintiff approached the defendant-petitioner for an advance and on denial of the same by the defendant-petitioner, then the suit for eviction was filed by the plaintiff on concocted plea of personal necessity and expiry of fixed term lease. It was the further case in the written statement that the plaintiff's family was a joint family which owned a number of business at Ranchi including Ranchi Motor and Cycle Stores by the side of the Main Road, Ranchi Popular Cycle Stores by the side of the Main Road, Ranchi Popular Cycle Stores by the side of Wool House, Ranchi and Popular Cycle Stores near Over Bridge, Ranchi. It was also pointed out in the written statement that the plaintiff's husband being old and incapacitated, the business of the family at Ramgarh had to be closed down because of absence of competent member to look after the same and on that ground, the other business in the name and style of Popular Cycle Stores, near Over Bridge, Ranchi, was also closed down. It was also the plea of the defendant that Binod Kumar Tantia and Shea Kumar Tantia were not unemployed and were actually looking after and running the business in the name and style of Ranchi Motors and Cycle Stores at Main Road, Ranchi. It was also pleaded that the plaintiff's house at Old Commissioner's Compound was also situated in commercial locality and there was vacant portion available in the ground floor of the said house and if really there was any necessity for opening up any business by the two sons of the plaintiff, the same can be conveniently and suitably used. 5. On the basis of the pleadings of the parties, issues were framed and main issues were Issue nos. 3, 4 and 5 regarding fixed term tenancy and that of bonafide necessity. 6. Both oral and documentary evidence were led by both the parties. The plaintiff Narayani Devi did not examine herself as a witness and in her place, her two sons Binod Kumar Tahtia and Sheo Kumar Tantia were examined as PW.8 and PW.10. The husband of Narayani Devi was also not examined. 7. On the basis of the oral and documentary evidence led by the parties, learned Munsif disbelieved the plaintiff's story of fixed term tenancy and decided the issue no. 3 against the plaintiff. There was also adverse inference regarding the oral fixed term tenancy as the plaintiff Narayani Devi did not examine herself and the documents produced from the side of the defendant regarding his possession over the suit property since the year 1968-69. The plea of fixed term tenancy was rejected by the learned Munsif, but he passed the decree of eviction on the ground of bonafide necessity as set up by the plaintiff. 8. Against such decree, the petitioner came before this Court in Civil Revision No. 83 of 1992 (R) challenging the finding regarding the personal requirement of the suit property. The plea of fixed term tenancy was rejected by the learned Munsif, but he passed the decree of eviction on the ground of bonafide necessity as set up by the plaintiff. 8. Against such decree, the petitioner came before this Court in Civil Revision No. 83 of 1992 (R) challenging the finding regarding the personal requirement of the suit property. No challenge was made from the side of the plaintiff of the suit regarding the finding in issue no. 3 as to the fixed term tenancy on the basis of oral lease or a month to month tenant as pleaded from the side of the defendant-petitioner. After hearing the counsel for both the parties, the above mentioned Civil Revision was allowed by a Single Judge of this Court on 2.6.92 and discussing all points regarding the bona fide necessity and the law involved in the matter, set aside the judgment of eviction and remanded the matter to the Court below for decision in accordance with law. 9. After remand of the suit, the Original plaintiff Narayani Devi died and her three sons, husband and daughters were substituted as plaintiffs in her place who are now opposite parties in this revision petition. After substitution, an amendment petition was filed which was allowed to incorporate assertion regarding partition between her husband Nand Lal Tantia and her eldest son Ramautar. Such partition was challenged by the defendant-petitioner in the additional written statement filed. A further amendment was also made by the plaintiffs' side regarding the bona fide necessity when it was found that the adjacent shop room in possession of another tenant have been vacated in the meantime by the tenant and in the same shop room plaintiffs side opened up a business of Medical Stores, to the effect that the one son of the original plaintiff, namely, Binod Kumar Tantia started the Medical Stores in vacated tenanted room, but still then the necessity remained as Binod Kumar Tantia and his brother wanted still to open up business of Cycle and Petromax etc. in the shop room and that Sheo Kumar Tantia, the other brother remained still unemployed. in the shop room and that Sheo Kumar Tantia, the other brother remained still unemployed. This amendment was also challenged from the side of the defendant petitioner to the effect that when another shop room was found vacant by the tenant having same measurement of the tenanted premises in question and if there was any real urgency or necessity of the two sons of the original plaintiff, then the said vacant shop room could have been used for the purpose and the cause of action for eviction became infructuous when the contiguous vacant shop room was occupied by the sons of the original plaintiff. 10. In the earlier revision petition, the tenant challenged the bonafide necessity of the original plaintiff Narayani Devi regarding setting up her two unemployed sons in the suit premises for opening up shop of Cycle and Petromax etc. The other grounds of eviction, namely, the fixed term tenancy was discarded by the original court and held that the tenancy was not a fixed term tenancy but a month to month tenancy relying on the documents produced from the side of both the parties. There was no challenge regarding this finding of fact/issue regarding the fixed term tenancy from the side of the landlord. In the remand order, it was specifically found in para 8 that this Court did not consider that aspect of the matter as the same was not challenged in the revision petition by either of the parties. There was no question of that fact by the tenant as the same had gone in his favour by the original Court. But when the suit was remanded to the lower Court again after setting aside the judgment of eviction, it appears that the present Munsif has again decided the issue of fixed term tenancy and has come to the finding that the petitioner is not a month to month tenant and as the tenancy had expired before the filing of the suit on the basis of the oral lease as pleaded from the side of the landlord as such eviction was granted by the impugned judgment not only on the ground of bonafide necessity but also on fixed term tenancy. 11. Mr. 11. Mr. B.B. Sinha appearing for and on behalf of the petitioner-defendant-tenant submitted that this part of the impugned judgment is unwarranted in the eye of law as the Munsif had no authority to decide otherwise when this point had been set at rest by the earlier judgment and never set aside by this Court in the earlier revision petition. He has referred to para 8 of the remand order wherein this Court held in the following manner: "The learned court below, held that the defendant is a month to month tenant and thus the plaintiff was not entitled to a decree for eviction against the defendant on the ground of alleged expiry of the period of lease." After that para there was no discussion regarding the fixed term tenancy or month to month tenancy in the whole of the judgment and it dealt only on the point of bonafide necessity. Considering the various aspects of findings of the court below in para 38 of the judgment, the judgment and decree of the lower court was set aside and the matter was remanded to the Court below for a fresh decision in accordance with law. Such direction should be construed, according to Mr. Sinha, of deciding the matter of bonafide necessity afresh by the learned court below in the light of the observations made by this Court and in accordance with law. 12. Mr. Debi Prasad appearing for and on behalf of the landlords-opposite parties submitted that when the whole of the judgment have been set aside by this Court in the revision petition, then all the matters in issue became open for fresh decision by the original court and as such there was no error of law in finding of the court below in the impugned judgment determining eviction on the ground of fixed term tenancy also. His further submission is that para 8 of the remand order is nothing but reiteration of the submission of the defendant-petitioner and not a decision by the remand court. I am not inclined to accept the submissions made by Mr. Debi Prasad. 13. Eviction was sought by the landlord on two grounds under the Bihar Buildings (Lease, Rent & Eviction) Control Act as contemplated under Section 11, namely (i) expiry of the tenancy and (ii) bonafide necessity. I am not inclined to accept the submissions made by Mr. Debi Prasad. 13. Eviction was sought by the landlord on two grounds under the Bihar Buildings (Lease, Rent & Eviction) Control Act as contemplated under Section 11, namely (i) expiry of the tenancy and (ii) bonafide necessity. The expiry of the tenancy as pleaded from the side of the landlord was decided in negative and in favour of the tenant holding the tenancy to be a month to month tenancy and that decision was never challenged before this Court or in any other court. Eviction granted on the second ground of bonafide necessity was challenged before this Court by the tenant and such eviction was set aside by this Court and remanded the case back for decision according to law in the light of the observations made. 14. The wording of para 8 does not show that it was merely a submission from the side of the tenant-petitioner in the earlier revision petition. The first part was the submission, but the second part was the decision by the revisional court and legally also there was no scope of reopening that matter when fixed term tenancy or expiry of tenancy as held by the original court was ever challenged in the revision petition and it was outside the scope of decision by the revisional court. The judgment was set aside when eviction was granted on the ground of bona fide necessity and the whole of the discussion in the remand order is with respect to the bonafide necessity alone. Hence, I hold that there was no scope of the court below to reopen the matter of expiry of tenancy or a month to month tenancy after the remand order was received by the court below. Hence, such decision of granting eviction on the ground of fixed term tenancy is nothing but an error of law committed by the learned court below and the grant of eviction on that ground is of no avail to the landlords-opposite parties. 15. On the second ground of eviction on bonafide necessity, it is submitted by Mr. Debi Prasad that there is no scope of interference by this court in revision when all points have been decided in its pros and cons after elaborately discussing the evidence/deposition of individual witnesses of both the sides. 15. On the second ground of eviction on bonafide necessity, it is submitted by Mr. Debi Prasad that there is no scope of interference by this court in revision when all points have been decided in its pros and cons after elaborately discussing the evidence/deposition of individual witnesses of both the sides. There is no scope of any interference by the revisional court when there is no allegation of any mis-reading or non-reading of evidence of both oral and documentary. His further submission is that the changed position regarding vacating of the contiguous shop room by another tenant had not changed the ground of bona fide necessity from the side of the plaintiffs-landlord as the intention of the landlord to open up a shop room of Cycle and Petromax etc. remained unsatisfied even after the vacating of the contiguous shop room. 16. Mr. B.B. Sinha's submission on behalf of the petitioner is that even if it is held that the plaintiffs' ground of bonafide necessity was genuine at the time of the filing of the suit, the same have been taken away when the contiguous shop room of the same measurement was available to the landlord for satisfying their necessity of opening up a shop of Cycle and Petromax etc. for two unemployed sons, namely, Binod Kumar Tantia and Sheo Kumar Tantia. 17. Mr. Debi Prasad has submitted that even if it is said that 8inod Kumar Tantia's necessity is satisfied when he had occupied the vacant shop room and opened a Medical shop, then also their intention to open up another shop for the purpose of selling of Cycle, Petromax. etc. remained unsatisfied and the other brother Sheo Kumar Tantia remained still unemployed and the same have been categorically pleaded after amendment of the plaint. 18. Mr. B.B. Sinha has submitted that the partition between the father and the eldest son Ramautar and separation of his business from the joint family property was not at all proper and it was only manufactured after the remand order was made to get a decree of eviction against the petitioner. He has referred to the marriage invitation card of the daughter of Ramautar wherein all joint properties were also mentioned to show the status and this infers conclusively that there was no partition between the father and the eldest son Ramautar. He has referred to the marriage invitation card of the daughter of Ramautar wherein all joint properties were also mentioned to show the status and this infers conclusively that there was no partition between the father and the eldest son Ramautar. His further submission is that the property belonged to Narayani Devi and nowhere it was pleaded that the property was purchased in the name of Narayani Devi by her husband and so the question of partition amongst the father and the eldest son alone is not tenable and such partial partition is also unknown when the family belongs to Mitakshara school of Hindu law. 19. Mr. Debi Prasad's submission is that there is no bar in partial partition under the propriety of Hindu Law and the suit property has not been partitioned, but the other properties were partitioned separating the eldest son giving him other properties from the joint family. 20. I am not going to discuss that point as the matter can be decided on the other points. After the remand, Narayani Devi being dead her sons, husband and daughter have been substituted in her place as plaintiffs- landlords. The fact of partition was brought on record by way of amendment of the plaint and also by a subsequent amendment, the present position of the suit premises had also been brought regarding vacating of the contiguous shop room by D.W.6. This amendment is in the following manner : "That the shop premises which was under the tenancy of Satish Chandra, Mahesh Chandra and which was adjacent south to the suit premises has been recently vacated by the said tenant and on the said premises Binod Kumar Tantia one of the plaintiff has started business of medicine from June, 1994. Binod Kumar Tantia is the sole proprietor of the said business. Binod Kumar Tantia also requires the suit premises for business of Cycle, Petromax, Stove etc. in the premises in suit. Binod Kumar Tantia is the sole proprietor of the said business. Binod Kumar Tantia also requires the suit premises for business of Cycle, Petromax, Stove etc. in the premises in suit. As stated earlier Shiv Kumar Tantia is sitting idle and the premises in suit is required for purpose of doing business of Cycle, Petromax and electrical appliances by him in the suit premises." Such averments brought in the plaint by way of amendment has been strongly refuted from the side of the defendant-petitioner by filing additional written statement wherein, it was categorically stated that Sheo Kumar Tantia and Binod Kumar Tantia were practically running the Cycle and Petromax Stores of their father as the father became old enough to maintain and manage that business and that none of the brothers were unemployed or sitting idle. It was further stated that after the contiguous shop room of the same measurement became vacant, then if there was really any urgency or necessity of opening up a shop of Cycle and Petromax by the two brothers, they could have utilised that shop room, but without doing so they are harping on getting the ejectment of the petitioner by hook or crook as the petitioner denied to give advance for construction of market complex. It was also contended that the residential house of the plaintiffs-landlords at Old Commissioner's Compound at Ranchi had got much space vacant for the purpose of opening up shop of the two sons of the original plaintiff, if they really desire so. 21. Learned court below in consideration of the rival contentions of both the parties, scrutinised the evidence on record and discussed the deposition of individual witnesses in the impugned lengthy judgment. It should be mentioned here that after remand although opportunities were given to both the parties, from the side of the plaintiffs only Ramautar, the eldest son of the original plaintiff Narayani Devi was examined to prove his separation from the plaintiffs on the basis of the Batwaranama arrived at between him and his father. On the changed position due to subsequent event of vacating of contiguous shop room, no further evidence has been led from the side of the plaintiffs to prove that their necessity still existed for setting up the business of the two sons. On the changed position due to subsequent event of vacating of contiguous shop room, no further evidence has been led from the side of the plaintiffs to prove that their necessity still existed for setting up the business of the two sons. It appears that while dealing with the subsequent development, learned court below only relied on the pleadings of the plaintiffs as made by way of amendment for the purpose of proving the existence of necessity/need on the changed circumstances also. It has been held by the learned court below that even after vacating of the contiguous shop room by D.W.5 and the same being occupied by one of sons, namely, Binod Kumar Tantia, the need remained existed when the two brothers could not open up their shop of Cycle petromax etc. and for such need, the plaintiffs are entitled to get ejectment of the defendant. 22. As regards partial eviction as contemplated under Section 11(1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, the learned court below did not discuss much, but stated that for opening up of Cycle and Petromax shop by two brothers, the whole of the suit shop room would be necessary and the need of the plaintiffs can not be satisfied by partial eviction. 23. Although, I. find that the partition between Ramautar and his father was not very cogently proved in the case and that the need of opening up of business by the two sons in the shop room as alleged originally have also got room for doubt when there are other vacant places shown from the side of the defendant. On the principle that the plaintiffs know best which shop room would be best suitable for opening up his business. Let me take it granted for the time being that the shop room was needed. Originally, there was need for the two sons of the original plaintiff to open up the business in the suit shop room but whether that need or necessity remained still existed in the changed circumstances when the contiguous shop room having the same dimension and facility became available to the plaintiffs on vacating by the tenant or not is a question to be decided in the present case. 24. 24. In this case from the scrutiny of the evidence adduced from the side of the plaintiffs, I do not find anywhere that the plaintiffs had specifically given the dimension of the vacant space needed for opening up of their business. It must be mentioned that this family has got the business of Cycle and Petromax in the Main Road at Ranchi. It is not the case that the said shop room which was running in a rented house is to be shifted in the present shop room rather for the same purpose of business for two sons the present shop room was stated to be required. There is much difference between the desire and the need. Merely, the desire of the plaintiff to open up a business in the shop room would not satisfy the need as contemplated under Section 11 (1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act. It is the bounden duty of the Court to determine at the first instance as to the reasonable requirement of the premises for opening up the business of the sons of the original plaintiff and such determination must be objectively done and not on the basis of her ipse dixit or mere desire, as I have already stated that desire is totally different from need. It is also the duty of the court that after finding out the exact extent of requirement of the landlord then court is to apply test whether such requirement can be satisfied substantially by partial eviction or not. This principle has been laid down by the Apex Court in AIR 1984 SC 1799 (2). It has also been decided by the Hon'ble Apex Court as reported in AIR 1994 S.C. 489 (Krishna Murari Prasad vs. Mitar Singh) that the need of the landlord is to be determined objectively and then should proceed for subjective satisfaction of the need through eviction either partial or as a whole. Here, in the present case, it was contended from the side of the plaintiffs that the suit shop room is bonafidely necessary for opening up business by two sons of the original plaintiff, but when the contiguous shop room became vacant and came in possession of the plaintiffs, then they did not open shop of Cycle and Petromax etc. rather opened shop of medicine stores. rather opened shop of medicine stores. This goes to show that the need as contemplated in the suit for opening up shop of Cycle and Petromax etc. was merely desire and not a need. If there was the urgency of the need for the purpose of eviction of the defendant petitioner, then when vacant space of the same dimension was made available, the plaintiffs could have opened up shop of Cycle and Petromax in that shop room. Nowhere there was any averment that the plaintiffs were in the need of vacant space also for opening up Medical Stores in the subsequent amendment of the plaint and thus it goes to show and reveal that the necessity as contemplated originally was merely a desire in the garb of need to get the suit premises vacated by ejectment. The plaintiffs could not satisfy subjectively that need still continued even after they got the vacant space of same dimension. Though, the Medical Store was opened in the contiguous shop room by Binod Kumar Tantia alone and Sheo Kumar Tantia remained still unemployed as submitted has got no bearing when the suit shop room was needed for opening up a joint shop of Cycle and Petromax by two brothers. The vacated premises subsequently could cater the same need as admittedly the suit shop room has the same measurement as that of the shop room vacated by D.W.6. 24. In a busy commercial place, the needs are always considered on the attending circumstances available and varies from case to case and place to place. If need was genuine then there was scope for satisfying the need when the contiguous shop room was found vacant. 25. On consideration of this fact alone, I find that the plaintiffs have failed in the present case on the changed circumstances that the shop room was bonafidely necessary rather it was only a device to get the decree of ejectment against the defendant. 26. Thus, I find that the plaintiffs are not entitled to get ejectment in the present circumstances of the case against the defendant-petitioner. In view of discussions made above, this Civil Revision Petition is allowed and the impugned judgment of eviction and decree thereof is hereby set aside. 27. However, no order as to costs.