Kameshwar Tewari v. Vijoy Kumar Sharma — 1996 DIGILAW 5 (PAT)

Judgment Gurusharan Sharma, J. 1. The-plaintiffs as owners of the house standing over plot No. 449 in Mohalla Hamidganj, Municipal Ward No. 13 of Daltonganj-town filed Eviction Suit No.5 of 1989 under Sec. 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. 1982 (herein after referred to as the Act) against the defendant for eviction from the premises which is a portion of the said house consisting of two rooms on the ground floor with a courtyard, two verandas and a service latrine described in detail in the plaint. 2. According to the plaintiffs on 1.1.1985, the defendant was inducted as tenant in the suit house on a monthly rental of Rs. 50.00 . The tenancy was for a fixed period for which an agreement (Kabuliat) was executed by the, defendant, but on the expiry of the above period, the defendant did not vacate the same. Further, plaintiffs 2 and 3 have become adult; the plaintiff No. 2 got married and number of family members increased. The plaintiffs as such were feeling difficulties in accommodation arid residence and so they required the suit house for their personal use and occupation. 3. The defendant in his written statement denied any relationship of landlord and tenants between him and the plaintiffs and claimed the suit premises to have been acquired by his grand-father and his possession thereon in his own right. He also denied execution of any agreement and/or payment of rent to the plaintiffs. 4. The trial court by the impugned judgment/order dated 16.12.1993 decreed the suit. This revision application under Sec. 14(8) of the Act has been filed by the defendant against the said order of eviction. 5. The petitioners counsel submitted that in a suit under Sec. 14 of the Act, there was no scope to go into the detailed consideration of question of title and record finding thereon. The finding of relationship of landlord and tenant between the parties has been given only on the basis of the alleged Kabuliat (Exhibit 1) and Rent Receipts (Ext. 4 series) which were forged and fabricated documents. The defendants denied his signature thereon; still without getting an experts opinion in this regard, the trial court relied upon those documents and held that the defendant admitted himself to be a tenant under the plaintiffs and as such he was debarred from challenging the landlords title. 4 series) which were forged and fabricated documents. The defendants denied his signature thereon; still without getting an experts opinion in this regard, the trial court relied upon those documents and held that the defendant admitted himself to be a tenant under the plaintiffs and as such he was debarred from challenging the landlords title. The finding of bona fide and reasonable requirement of the plaintiffs with respect to the suit house has been recorded by the trial court without any evidence in this regard. According to the learned Counsel, the plaintiffs have failed to prove their personal necessity as required under Sec. 11(1)(c) of the Act. The Trial Court has also not considered the question of partial eviction. For the aforesaid reasons, it has been submitted that the impugned judgment/order is fit to be set aside and that the plaintiffs suit be dismissed. 6. The counsel for the opposite parties on the other hand, submitted that on 1.1.1985 the defendant was inducted as a tenant in the suit house and on 7.1.1985 admitting himself to be a tenant, the defendant executed a Kabuliat (Exhibit 1). The defendant paid rent for which receipts (Exhibit 4 series) were granted to him by the plaintiffs and the defendant put has signature on the counterfoils of each of those receipts. In the circumstances, the relationship of landlord and tenant between the parties, stood admitted and the defendant was estopped from challenging the plaintiffs title under the provisions of Section 116 of the Evidence Act. The plaintiffs have proved their bona fide requirement of the entire suit premises on account of increase In the number of their family members. The defendant, on the other hand, has failed to discharge his onus and prove that the plaintiffs requirements would be satisfied by evicting him only from part of the premises and as such, there was no occasion for the court below to record a finding of partial eviction. 7. The defendant, on the other hand, has failed to discharge his onus and prove that the plaintiffs requirements would be satisfied by evicting him only from part of the premises and as such, there was no occasion for the court below to record a finding of partial eviction. 7. A perusal of the impugned judgment/order reveals that the trial court was conscious of the legal position that in a suit under Sec. 14 of the Act, only two things were to be examined i.e. (i) relationship of landlord and tenant and (ii) bonafide and reasonable requirement of the plaintiffs, and that even if the defendant claimed independent title or challenge of the title of the plaintiffs, the court was required to go into those questions just incidentally. In the suit, the trial court has rightly not framed any issue with respect to the title of the parties. Although the trial court has discussed the evidence brought on record by the parties relating to title, but has not recorded any finding about title. 8. It is well settled that if the land lord neither raises question of title, nor prays for a decree on the basis of title, the nature of the suit cannot be changed on the basis of the written statement of the defendant from a suit for eviction to a suit for declaration of title, and the plaintiff landlord is not required to pay ad valorem court fee on the market value of the suit property. The defendant cannot force the plaintiff or the court for a decision on the question of title in a suit for eviction. In Deepak Kumar Verma and Ors. V/s. Ram Swaroop Singh 1991 (2) PLJR 541, this Court held that complicated question of title of the parties could not be decided in a proceeding under Sec. 14 of the Act. 9. In order to prove relationship of landlord and tenant as well as the fixed term of the tenancy, the plaintiffs brought on record an unregistered agreement (Kabuliat) said to be executed by the defendant and four rent receipts said to be signed by him, which were marked as Exhibit 1 and Ext. 4 series respectively. 9. In order to prove relationship of landlord and tenant as well as the fixed term of the tenancy, the plaintiffs brought on record an unregistered agreement (Kabuliat) said to be executed by the defendant and four rent receipts said to be signed by him, which were marked as Exhibit 1 and Ext. 4 series respectively. The defendant in his written statement as well as in his deposition as DW 13 denied either to have executed the said Kabuliat or to have signed over those rent receipts, but when at the request of the plaintiffs the trial court by order dated 29.2.1992 directed him to give his specimen signature in Hindi in Court for the purpose of examination and comparison by a hand-writing expert and his opinion, he did not comply with the same. Not only this, while the tenant was being examined as DW 13, the counsel for the plaintiffs in course of his cross-examination suggested him to sign his deposition in Hindi to which he declined and answered that he had objection to signing in Hindi and signed in English. The defendant is a local man and his mother language and mother tongue is Hindi and he is a practicing lawyer at Daltonganj civil court. The trial court has, therefore, rightly drawn adverse inference against the defendant in this regard. 10. PW 1, who is an Advocates clerk stated that the Kabuliat in question is in his hand and pen and was prepared on the direction of the defendant, who had put his signature thereon. PW 5 has proved the rent receipts, which bears the signature of the defendant and were marked as Exts. 4 series. In Ext. 1 the defendant admitted himself to be a tenant in the suit premises, the amount of monthly rent payable and the fixed period of tenancy and undertook to vacate the same on expiry of the said period. 11. The counsel for the petitioner submitted that Ext 1 being an unregistered document was inadmissible in evidence and can not be looked into for any purpose whatsoever. A bare perusal of Ext. 1 reveals that it is neither a lease, nor a document creating tenancy. It appears that on 1.1.1985 the defendant was orally induced as tenant and subsequently on 7.1.1985, the defendant executed the said deed in the form of a Kabuliat admitting the tenancy and terms thereof. A bare perusal of Ext. 1 reveals that it is neither a lease, nor a document creating tenancy. It appears that on 1.1.1985 the defendant was orally induced as tenant and subsequently on 7.1.1985, the defendant executed the said deed in the form of a Kabuliat admitting the tenancy and terms thereof. It is just a memorandum; such a document does not require registration under the provisions of the Registration Act. Such Memorandum, even if unregistered, is admissible in evidence. 12. The defendant denied to have signed either on Exhibit 1 or Exhibit-4 series and called them to be forged and fabricated, but when called upon to give his specimen signature for comparison by expert, he not only failed to give his specimen signature in court, but also declined to sign in Hindi on his deposition in court. His objection to sing on the deposition in Hindi does not mean that he cannot sign in Hindi. In the circumstances, it can safely be held that the defendant avoided the risk of any expert opinion about his signature in Hindi on Exts. 1 and 4 series. Simply on account of the defendants denial in the written statement and deposition, those documents cannot be held to be forged and fabricated. 13. In my opinion, there is no reason to disbelieve Exts. 1 and 4 series and there are sufficient to prove that there has been a relationship of landlord and tenant between the parties with respect to the suit premises and the defendant was estopped from challenging the title of the plaintiffs in this suit under general principles of estoppel apart from the principles laid down under Section 116 of tine Evidence Act. 14. It is well settled that in a case where the question of title is decided by a court in eviction proceedings, it would still remain open and where a defendant who despite having title in the property may lose a suit for eviction, the equitable consideration demands that the parties should be left to get the question of their respective title decided in a properly framed civil suit. As such, if a suit for declaration of title is filed by the petitioner before a competent civil court, the findings/observations of the trial court in the impugned judgment shall not operate as res judicata inasmuch as the trial court has not recorded a definite finding that the plaintiff has title in or over the property in suit. 15. The plaintiff No. 1 examined himself as PW 9 and stated that he was the Karta of the joint family and the suit premises was required for the use and occupation of the family on account of increase in the numbers of the family members. His brothers have become adult and one of them has already been married. In paragraph 23 of his cross-examination, he admitted that the portion of the house in which the family is residing consisted of five rooms and he denied the suggestion put on behalf of the defendant that the said portion of the house was sufficient for their accommodation. However, the increase in the number of the plaintiffs family members has not been denied by the defendant. On the other hand, according to the defendant even if the plaintiffs have bonafide and reasonable requirement of the suit house, they had no right to get it vacated. The trial court found that there were 13 to 15 members in the family and as such the plaintiffs reasonably required the suit premises for their personal use and occupation. In the facts and circumstances of the case and on the basis of evidence on record, I find that the defendant has failed to demolish the plaintiffs case of bonafide and reasonable requirement of the suit house for their personal use and occupation and, in fact, they genuinely Required the suit house for accommodation of their family members. 16. In Bata India Limited V/s. Dr. Md. Camruzzama 1993 (1) PLJR 87, a Division Bench of this Court held that the landlord having proved the requirement of the suit premises cannot be expected or asked to prove the negative that his need can be satisfied by partial eviction. The onus, therefore, shifts to the tenant. 16. In Bata India Limited V/s. Dr. Md. Camruzzama 1993 (1) PLJR 87, a Division Bench of this Court held that the landlord having proved the requirement of the suit premises cannot be expected or asked to prove the negative that his need can be satisfied by partial eviction. The onus, therefore, shifts to the tenant. The expression, and the tenant agreed to such occupation strengthens the view that while holding inquiry on the question of partial eviction, it is the tenant who has to express his readiness and willingness for part occupation of the premises and to show that the plaintiffs need can be substantially satisfied by evicting him from only part of the premises and allowing him to continue in occupation of rest of it. 17. In the present case, the plaintiffs have been able to prove their bonafide and reasonable requirement of the premises in suit The defendants, on the other hand, neither pleaded nor adduced any evidence on the point of partial eviction The plaintiff No. 1, in his evidence, claimed the requirement of the premises for his own use as also to utilise the same to provide space to his grown up brothers. In case, where the need is composite, it cannot be said that smaller area would suffice the plaintiffs need. From the evidence on the record, I am satisfied that the suit premises consisted of only two rooms and the plaintiffs need cannot be substantially satisfied by partial eviction. 18. I do not find any reason to interfere with the impugned judgment/order and the same is hereby affirmed. 19. In the result, this Civil Revision Application is dismissed, but without costs.