Sarkar Sharan v. Ram Prasad Gupta — 1999 DIGILAW 1058 (PAT)

JUDGMENT P.K. Deb, J.- This Revision petition has been preferred against the judgment and decree dated 31.7.1998 passed by the IInd Munsif, Chapra at Saran in Eviction Suit No.7 of 1995 directing the defendants-petitioners to vacate the suit premises within thirty days and to give delivery of possession to the plaintiff. 2. In a double storied building ground floor is the disputed portion in the suit. According to the plaintiff-Opposite party the suit property i.e. the whole building including the premises on the ground floor was gifted by the father of plaintiff No.1 by a deed of gift dated 17.12.1991. At the relevant time of gift and at the time of filing of the suit the plaintiff no.1 was a minor and the gifted property was taken in possession by the plaintiff no.1, through his mother natural guardian Plaintiff no.2. The father of plaintiff no.1, namely, Shambhu Nath Prasad Gupta had lost his mental balance since two and half years prior to the filing of the suit and the plaintiff No.2 the wife is managing the livelihood of the family including the treatment of her husband by hard labour. Besides plaintiff No.1, plaintiff No.2 has got two other minor daughters. For increasing the income of the family for maintaining the livelihood and treatment of the father of plaintiff No.1, the plaintiff No.2 started sewing and weaving work and she now wants to set up his sewing and weaving shop in the ground floor and, as such, eviction was necessary for the purpose of setting up of the business of sewing and weaving by the plaintiff No.2 with help of her two daughters. Hence the suit has been filed for eviction. 3. It is the case of the defendants that they were not tenant in the shop and denied the relationship of the tenant and landlord with the plaintiff. They have also denied the title of the plaintiff over the suit property. According to them they had taken the suit premises on monthly rent of Rs. 400/- from Rameshwar Sah and not the father of the plaintiff no.1. According to the defendants the father of plaintiff no.1, Shambhu Nath Pd. Gupta and Rameshwar Sah had purchased the disputed property in the year 1959 from Dr. According to them they had taken the suit premises on monthly rent of Rs. 400/- from Rameshwar Sah and not the father of the plaintiff no.1. According to the defendants the father of plaintiff no.1, Shambhu Nath Pd. Gupta and Rameshwar Sah had purchased the disputed property in the year 1959 from Dr. Raboodin Ahmad and they came in possession over the same and Shambhu Nath Sah sold the share of disputed property to Rameshwar Sah vide sale deed dated 16.9.94. Thereafter the petitioner took the suit premises on monthly rent from Rameshwar Sah in the year 1995 and in this regard a Kirayanama executed by Rameshwar Sah in favour of the defendants-petitioners on 1.10.1995. The defendant No.3 O.P. 2nd set filed written statement separately and according to him one Ram Prasad Sah was the common ancestors of the plaintiffs and the defendant no.3. Ram Prasad Sah had two sons, namely, Parma Sah and Bineshwari Sah. Parma Sah was married with Bhagmati Devi and from Parma Sah two sons were born namely defendant no.3 and Rameshwar Sah. Parma Sah during the jointness with Bindeshwari Sah. Bindeshwari Sah was unmarried and after death of Parma Sah Bindeshwari Sah married with Bhagmati Devi through their wedlock three more sons were born to Bindeshwari Sah. It is the further case of the defendant no.3 that the disputed plot was purchased on 30.11.1959 on consideration of Rs. 825/- from one Dr. Rabuddin Ahmad in his name and in the name of Shambhu Nath Sah. Thereafter house was constructed and family members started residing in the said house and they remained joint till 1992 and they separated in 1993 in which father of the plaintiffs got 1/6th share who sold his share to defendant no.3 on 16.9.1994. After that the father of the plaintiffs had no concern with the same property. It is denied that there was any gift of deed executed by Shambhu Nath Sah in favour of his son and there was no scope of making such gift as in the year 1991 there was no partition between the defendant no.3 and father of the plaintiff no.1. Thus from the pleadings of the parties it could be found that the suit property was originally jointly purchased by defendant no.3 and father of plaintiff no.1. Thus from the pleadings of the parties it could be found that the suit property was originally jointly purchased by defendant no.3 and father of plaintiff no.1. According to the plaintiff in the year 1991 the suit property was gifted to plaintiff no.1 and the said gift was taken for and on behalf of plaintiff no.1 by the plaintiff no.2 a minor. It was also the case that before gifted there was partition amicably between the defendant no.3 and the plaintiff no.1 and his father. On the other hand defendant no.3 claims that he had purchased the suit property from the father of plaintiff no.1 in the year 1994. In the year 1995 the defendants had been inducted in the suit premises on the ground floor by executing a kirayanama. On the basis of the pleadings of the parties several issues were framed and main issues were regarding the relationship of landlord and tenant between the plaintiff and the defendant no.1 and the issue with regard to the bona fide of the requirement of the suit premises by the plaintiff. Both parties adduced evidence of bulk of witnesses. The deeds of gift and the purchase deed of defendant no.3 including the kirayanama alleged to be executed in between defendants had also been exhibited. After considering the cases of the parties learned Court below came to the finding that as the gift deed was executed prior to the alleged sale-deed of defendant no.3 the plaintiffs had acquired title over the suit property and it was also found that the tenants were in the suit premises since before and the alleged execution of sale-deed in the year 1994 in favour of defendant no.3. The kirayanama was held to be a manufactured document only for the purpose of obstructing the eviction process as in suit from the plaintiff's side. The kirayanama was held to be a manufactured document only for the purpose of obstructing the eviction process as in suit from the plaintiff's side. The relationship of landlord and tenant between the plaintiffs and the defendants had been established on the basis of the evidence on record as held by the learned Munsif and with regard to bonafide necessity also it has been held by the learned Court below that the plaintiffs have got bona fide personal necessity as the plaintiff no.2 is not only to maintain the livelihood of her family of husband and three minor children but also to bear the expenses of the treatment of her husband who lost his mental balance in the year 1993. Hence the eviction suit was decreed. 4. Learned counsel appearing for and on behalf of the petitioners-tenants have firstly attacked the impugned judgment on the ground that it was simple eviction suit in the summary proceedings as contemplated under Section 14 of the B.B.C. Act and in such summary process of eviction proceeding there is no scope of deciding complicated question of title and the learned Court below in the narrow scope of eviction proceedings had decided the complicated question of title. On the other hand Mr. Dewedi, senior counsel appearing for and on behalf of the opposite-party/landlord has submitted that it was not a complicated question of title rather the title of the husband of plaintiff no.1 had been somewhat admitted and only to evade the eviction a so- called title was set up with the defendant No.3, and in such sort of cases when the tenant takes the plea of having no title of the landlord then in the eviction process itself such title can be decided although in the narrow scope as for ancillary purposes. That the plaintiff No. 1's father and defendant no.3 were the original owner of the suit properties is an admitted fact as they purchased jointly in the year 1959. That there was partition between the two is also admitted although regarding the date and time of amicable partition has only been differed. According to the plaintiffs amicable partition took place long back. It is also admitted fact that in the suit premises on the upper floor plaintiffs are residing exclusively and not the defendant No.3 and such possession has been found from the evidence prior to 1991. According to the plaintiffs amicable partition took place long back. It is also admitted fact that in the suit premises on the upper floor plaintiffs are residing exclusively and not the defendant No.3 and such possession has been found from the evidence prior to 1991. Regarding title there is a gift deed in favour of the plaintiff by the admitted title-holder and there is a sale deed subsequent to the gift deed in favour of defendant No.3. When the tenants were found to be in possession prior to 1995 on the evidence on record then the kirayanama executed was rightly held by the learned Court below to be a manufactured one. As per the plaintiff the father of plaintiff no.1 lost his mental balance sometimes in the year 1993 the gift deed is of 1991 and definitely when the gift deed is there and possession had also been delivered then the subsequent purchase by defendant no.3 cannot have any better footing and. when the defendant-tenants came in possession prior to 1995 then it cannot be said that they had been inducted by defendant No.3 on execution of kirayanama. On close scrutiny of the evidence on record independently by this Court it could be found that the learned Court below has rightly deciphered the evidence and then came to the finding that the plaintiffs had title over the suit property and that the defendants are the tenants of the plaintiff. Moreover even if there was no partition then also on the principle of law one co-sharer can proceed with the eviction suit making the other co-sharer, the party in the suit. Defendant No.3 had intervened in the suit only to come in rescue of the tenant-defendants by setting up a title on him which has rightly been rejected by the learned Court below as his alleged document was a subsequent created document when the father of the plaintiff no. 1 had already become insane. The ruling regarding complicated. question of title as submitted by the learned counsel for the petitioner as reported in 1999(2) PLJR 712 (Nirmal Prasad Yadav vs. Kapildeo Prasad) has got no much bearing in the present suit. The facts are totally different. Here on the face of it the plaintiff had got title prior to the alleged title of defendant No.3. question of title as submitted by the learned counsel for the petitioner as reported in 1999(2) PLJR 712 (Nirmal Prasad Yadav vs. Kapildeo Prasad) has got no much bearing in the present suit. The facts are totally different. Here on the face of it the plaintiff had got title prior to the alleged title of defendant No.3. If such questions of title are not decided in eviction proceeding under Section 14 of the B.B.C. Act then perhaps no eviction suit would be allowed to proceed under summary procedure when the tenant would come up with a false plea of title setting up on a third party. In the present case it is not a complicated question of title rather such title can be decided for ancilliary purposes for a summary proceeding of eviction. In such circumstances, it (sic) do not find that the learned court below has committed any error of law or jurisdictional error in deciding the title of the plaintiff over the suit property for ancilliary purposes of an eviction proceeding. Moreover on the materials on record this Court also found independently on scrutiny of the evidence that the relationship of the landlord and tenant could be established by the plaintiff between the plaintiff and the defendant-tenant. The story of defendants had rightly been disbelieved holding the kirayanama story to be a manufactured one. Regarding the bonafide necessity it is submitted that when the plaintiffs had claimed to start a shop of sewing and weaving they have not given any evidence as to wherefrom the money would come for starting of the business and when it is the case of the plaintiffs that they are in utter poverty and wanted to start a business for their livelihood then it was utmost necessary for the plaintiffs to prove as to wherefrom they would get the money for starting the business. In this respect a judgment of this (sic) as reported in 1989 P.L.J.R. 1188 (Ramesh Chandra Agrawal vs. Shushan Ram) has been referred to wherein it was held that when the plaintiffs failed to state categorically as to wherefrom the starting money would come up for the business then the personal necessity for starting a business cannot be said to be a genuine or bona fide one. This point of bonafide necessity should be considered in its proper perspective in each particular case. This point of bonafide necessity should be considered in its proper perspective in each particular case. There cannot be any hard and fast rule or straight jucket formula for finding out bonafide regarding the personal necessity. In the present case as is submitted in the bar from the side of the opposite party and also as is coming up from the evidence on record that the business which the plaintiffs want to start do not require any capital. They want to start a sewing and weaving School like shop. The mother and the daughters are well equipped regarding sewing and weaving by which they are earning livelihood for the family and they want to start it a big way for increasing their monthly income. There is nothing on record to challenge regarding the capital of the business and it has been stated in the bar that such business do not require any capital as the women and girl would be coming in for learning sewing and weaving, they would come with their own equipment for the purpose and nothing is to be supplied from the side of plaintiff no.2 or her daughters. Thus I do not find that the rulings submitted has got any bearing in the present circumstances of the case. Regarding partial eviction also the same has been considered by the learned Court below and it was found that in the circumstances there is no scope for any partial eviction when two or three ladies are coming to start a sewing and weaving shop the same needs a good accommodation for the learners and the nearby cycle reparing shop cannot run side by side for paucity of accommodation and also for natural obvious purposes. 5. In the result, I find that the learned court below has rightly decided the eviction suit in favour of the Opposite parties and the same does not suffer from any irregularity, illegality, impropriety or jurisdictional error and hence there is no scope to interfere with the same under Section 14(8) of the B.B.C. Act. The revision petition is thus, rejected having no force but in the facts and circumstances no order as to costs.