Janardan Singh v. Aseem Sunder Das — 1997 DIGILAW 584 (PAT)

Judgment Radha Mohan Prasad, J. 1. The petitioner has filed this revision application against the judgment and decree dated 27th January, 1996 passed by 2nd munsif, Ara, in Eviction Suit No.1/87 by which a decree for eviction has been passed against him. 2. The plaintiff-opposite party instituted the aforementioned eviction suit under Sec.14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (Bihar Act 4 of 1983) (hereinafter referred to as the Act) on the ground of personal necessity as well as expiration of the period of lease. The plaintiff also prayed for decree for eviction under Clauses (c)and (e) of Sec.11 (1) of the Act and that he be put in possession of the suit portion of the premises which is northern half of Shop No.10 situate in Shyam sunder Das Katra, Station Road, Nawada, ara Town. 3. The case of the plaintiff is that on partition among the brothers northern half of Shop No.10 fell to his share, which is the subject-matter of dispute. The said shop was given on oral lease by the plaintiff to the defendant for one year on 1-1-1985 on a monthly rental of Rs.75/- per month and later for the said purpose, the defendant executed a memorandum of lease also and put his left thumb mark on it on 19-9-1985. The plaintiff himself is occupying Shop No.11 and has his own godown of Iron Sheets in the same which does not satisfy his requirement and so he needed the suit portion. It is further alleged that when the defendant, in spite of expiry of the term of lease and demand by the plaintiff for possession, did not vacate the premises in question, the suit was filed. 4. The case of the defendant was that the plaintiff had no valid cause of action. He also denied about there being any oral lease for one year on 1-1-1985 as well as about the execution of any memorandum and putting his L. T. I, on 19-9-1985. According to the defendants case, oral letting out has been coming up forthe last 50 years. However, it is stated that one risabh Sundar Das suggested the defendant to give his L. T. I. on blank paper for the purpose of making adjustment of the amount spent by him in making furniture, almirah and repair etc. According to the defendants case, oral letting out has been coming up forthe last 50 years. However, it is stated that one risabh Sundar Das suggested the defendant to give his L. T. I. on blank paper for the purpose of making adjustment of the amount spent by him in making furniture, almirah and repair etc. so that in case he (the defendant) vacates the shop, the agreement would bind them and Risabh sundar Das would make payment for the furniture and Almirah made by him and if the defendant would like to take back the same, then Das would not raise any objection. It is alleged that with dishonest intention the memorandum of lease has been forged. The defendant also denied the claim of the plaintiff regarding need of the disputed premises as he has sufficient open land and further alleged that he closed his Iron Sheets business also. 5. By the impugned judgment and decree, the suit was decreed in which the relationship of landlord and tenant has been accepted by the trial Court and it was held that the memorandum of lease dated 19-9-1985 was executed by the defendant petitioner. The Court also held that the plaintiff had bona fide requirement of the suit premises. 6. It appears that on the prayer of the plaintiff the memorandum of lease was sent to the Government Finger Print and handwriting Expert and a report had been received form them that the thumb impression tallied with the thumb impression of the defendant petitioner. The expert was examined as P. W.8. It has also come in the evidence that the expert had examined the disputed and admitted LT. Is. alongwith other experts and after common report it had been found that the disputed l. T. I. tallies with the specimen L. TI. of the defendant. The report of the expert has been marked as Ext.5. 7. It has also come in the evidence that the expert had examined the disputed and admitted LT. Is. alongwith other experts and after common report it had been found that the disputed l. T. I. tallies with the specimen L. TI. of the defendant. The report of the expert has been marked as Ext.5. 7. The learned Munsif on consideration of the facts that the defendant had admitted at least about putting his L. T. I. on blank paper and that he expressed his mere suspicion that it might have been used for preparing the memorandum of lease as also the report of the expert (P. W.8), who is a Government Expert and against whom no malice has been alleged by the defendant petitioner, did not find any reason to disbelieve the report of the expert that the L. T. I. over the memorandum of lease (Ext.2) was of the defendant petitioner. He also noticed that the plaintiff in his evidence stated that the writing of the memorandum of lease tallies with the writing of the defendant over the letter (Ext.7) and the signatures of the defendant over counterfoil of rent receipts and, thus, he felt no hesitation in holding that the writing of the memorandum of lease (Ext.2) is in the handwriting of defendant janardan Singh. He further held that if janardan Singh would have or had any challenge regarding similarity of the L. T. Is. and writings and signatures, he should have taken steps for getting them examined by the expert from his side and in the absence of any contradictory experts opinion from the side of the defendant, he accepted the report of P. W.8. 8. It was contended by Mr. Singh, learned Counsel for the defendant petitioner that the learned Court below has committed grave error in casting onus on the defendant. The onus to prove the l. T. Is. and writing and signatures on the alleged memorandum of lease was on the plaintiff and in this regard he placed reliance on a decision of this Court in the case of Chulhai Lai Das V/s. Kuldip Singh and others, A. I. R.1931 Patna 266 at p.267. The onus to prove the l. T. Is. and writing and signatures on the alleged memorandum of lease was on the plaintiff and in this regard he placed reliance on a decision of this Court in the case of Chulhai Lai Das V/s. Kuldip Singh and others, A. I. R.1931 Patna 266 at p.267. There cannot be any doubt that the onus to prove the case of the plaintiff was on the plaintiff and not on the defendant, but when the memorandum of lease (Ext.2) was examined by the expert at the instance of the plaintiff, then in order to contradict the experts opinion, the onus had shifted on the defendant to get another experts opinion on examining writings and signatures over the same by expert at his instance. In the absence of that, in my opinion, the learned Munsif has rightly accepted the report of P. W.8 and proceeded to decide the matter accordingly. By now it is well settled that there is no legal bar to the Judge using his own eyes to compare disputed writing with admitted one even without the aid of evidence of handwriting expert. In this regard it is relevant to refer to Sec.73 of the Evidence Act and the decision of this Court in the case of Bhupendra Narain v. Ek Narain Lal, A. I. R.1965 Patna 332-para 19. 9. It was then submitted by Mr. Singh, learned Counsel for the petitioner that according to the case of the plaintiff himself, who was examined as P. W.9, he admitted in paragraph 19 of his deposition that the defendant was inducted as tenant in 1982 and not in 1984. As such, according to him, the said statement falsifies the execution of the memorandum of lease by the defendant petitioner. 10. On the other hand, it was submitted by Mr. Hussain, learned Counsel for the plaintiff opposite party that from the mere aforementioned admission it cannot be said that there is any contradiction in the case of the plaintiff in claiming that the memorandum of lease was executed in the year 1984. It was submitted that formal execution of the lease later on with a tenant who has been in the premises since before is not prevented by any law. I find substance in the submission of Mr. Hussain. It was submitted that formal execution of the lease later on with a tenant who has been in the premises since before is not prevented by any law. I find substance in the submission of Mr. Hussain. Even if tenancy is there, the landlord and the tenant may formalise the tenancy by executing a memorandum of lease which cannot be vitiated and/or doubted merely on account of existence of tenancy since before the execution of the lease. 11. As regards the personal necessity, it was contended by Mr. Singh, learned counsel for the petitioner that the Court has committed error in not considering the other portion of the suit premises which was more suitable for the plaintiff, according to his need. I am unable to appreciate the said submission of the learned Counsel for the defendant petitioner. It is by now well settled that in dealing with the question of personal necessity the Court cannot go into the question as to which would be more suitable to meet the need/requirement of the landlord. The choice of the landlord is always to be considered for the purpose of personal necessity. The Court only has to consider as to whether the landlords claim about the personal necessity of the suit premises is justified or not. In this regard reference can be made to the decisions of this Court in the case of Mis. Tip Top V/s. Indramani devi, A. I. R.1982 Patna 190-para 24; 1982 blj 584 and in the case of Sadhu Sharan sahai and am V/s. National Seeds Corporation ltd. and ors. , 1989 B. B. C. J.126-para 4. Moreover, Mr. Hussain has rightly pointed out that the Pleader Commissioner (P. W.10) has fully supported the claim of the plaintiff regarding personal necessity. 12. Accordingly, I do not find any merit in this revision application and the same is dismissed, but without costs. Revision Dismissed.