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2000 DIGILAW 312 (PAT)

Md. Irshad v. Md. Hashim

2000-02-25

R.N.SAHAY

body2000
Judgment Ravi Nandan Sahay, J. 1. This Revision Application under Section 14 (8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 {in short the Act) has been brought by the defendant against whom 1st Munsif, Sasaram has passed a decree for eviction under Section 11 (1) (c) & 11 (1) (e) of the Act. 2. The plaintiff filed a suit on 5.1.1994 for eviction of the petitioner-defendant from the shop described in Schedule B in which the petitioner has been running business of watch, clocks etc. since long. The petitioner had taken the shop from Md. Afsar on rent of Rs. 250.00 per month. The plaintiff purchased the house and shop described in Schedule A to the plaint from the landlord of the petitioner by means of six registered sale deeds dated 23.2.1993 and then filed a suit for eviction of the petitioner-defendant from the suit premises. The plaintiffs has been running a business of sale and repair of watch, clocks etc. He has a shop in Dharamshala Road at Sasaram which is a busy market place where, according to the evidence of the plaintiff himself, many shops of sale and repair of watch, clocks etc. situate. The shop premises in which the petitioner has been running his business is not in the market place. There is no other watch shop in the locality. The case of the plaintiff is that he requires the suit premises for his bonafide personal needs since the existing shop in which he is carrying on his business is too small. As a matter of fact plaintiffs case is that he requires the entire building purchased by him by registered sale deeds for his personal use and use of his family members. It is pertinent to mention that the plaintiff had taken a shop on rent in Dharamshala Road, Sasaram from one Birendra Singh. The petitioner resisted the suit merely on the ground that the plaintiffs claim for ejectment is not bonafide and he does not require the suit premises for his personal use since it is not located in the suitable locality for such business. In this connection it would be useful to report paragraphs 10 and 11 of the written statement filed by the petitioner-defendant as follows : "That the personal necessity of a transferee shall not be thwarted upon the tenant. In this connection it would be useful to report paragraphs 10 and 11 of the written statement filed by the petitioner-defendant as follows : "That the personal necessity of a transferee shall not be thwarted upon the tenant. Moreover, the plaintiff carries on the shop business of watch and clock in the main Dharamshala Road which is an important site of business. The disputed premises situated in the interior part of the town, which is not fit for the business of watch and clock. Most of the important watch and clock shops are located in the same locality i.e. Dharamshala Road, where at present the business shop of watch and clock of the plaintiff situates." "That/ there are three rooms and one godown in the building. One of the shops is of two doors having more space and frontage exposed to the road and situated at most important site for the business in that locality. The disputed premises situates in the inside portion of the building having a small space. The another shop is also bigger in area with good frontage space than that of the disputed premises. That shop is in the tenancy of one Nayyar Azam, who carries on the business of Fancy Sarees & Ladies Garments under the name and style of "New Fashion Store". The plaintiff has admitted the other tenants to remain in their respective shops after taking a heavy sum of "Salami" amounting to Rs. 55,000/-." 3. The petitioner alleged that purchase of the house by the plaintiff was a collusive transaction and that the plaintiff wanted to enhance the rent from Rs. 250/- to Rs. 700/- per month. There is no sufficient evidence on this point. In Para-graph 16 of the Written Statement the petitioner-defendant has stated that there are no adult members in the family of the plaintiff to carry on any business and the brothers of the plaintiff carry on their business elsewhere in the name and style of "Millan Watch Store" and "Hindustan Watch" situate at Dharamshala Road, Sasaram. It is alleged that the Plaintiffs shops at the present site situate in spacious place located in main market place. In support of his case the plaintiff examined 11 witnesses including himself. 4. P.W. 2, Nayyer Azam has a shop in Dharamshala Road. It is alleged that the Plaintiffs shops at the present site situate in spacious place located in main market place. In support of his case the plaintiff examined 11 witnesses including himself. 4. P.W. 2, Nayyer Azam has a shop in Dharamshala Road. He has stated that the suit shop has been purchased by the plaintiff and he asked him to vacate the shop. The witness agreed to vacate the suit shop whenever the plaintiff will ask him to do so. The witness further stated that the plaintiff has obtained the decree for eviction in respect of another shop and the shop is in his possession. 5. P.W. 3, Shamim Ahmad is a customer of the plaintiff. He has stated that the suit shop of the plaintiff in Dharamshala Road is very small in which the plaintiff carries on watch business. The shop of the defendants at Kabirganj on Dharamshala Road where 3-4 watch shops situate nearby. The plaintiff is engaged in wholesale purchase of watches for the last 15-16 years. 6. P.W. 4, Harbans Singh stated that the existing shop of the plaintiff is very small and not convenient for shop business. The witness further stated that the area of plaintiffs existing shop may be equivalent to the area of the suit shop. 7. P.W. 5, Kushtar Ahmad has stated that the defendant had purchased a shop at Dharamshala Road from his father and the defendant is in possession of the said shop. 8. P.W, 6, Siddique Ansari stated that the shop of the plaintiff is very small having frontage of about 5 feet which can accommodate only 2 or 3 customers at a time. 9. Md. Hashim, the plaintiff in his evidence has stated that he had taken the shop on rent from Birendra Singh which is not suitable for shop business as the shop is very small. It is stated that his need will be satisfied only when all the three shops are in his possession. He is engaged in watch business in the above rented premises for the last 33 years. He also filed Eviction Suit against other two tenants. Decree has been passed in two cases. The plaintiff has stated that one shop is lying vacant in the ground floor. The dimension of that shop is 1276. The shop was lying vacant for four months when the plaintiff was deposing in Court. He also filed Eviction Suit against other two tenants. Decree has been passed in two cases. The plaintiff has stated that one shop is lying vacant in the ground floor. The dimension of that shop is 1276. The shop was lying vacant for four months when the plaintiff was deposing in Court. The dimension of his existing shop is 1476. 10. P.W. 9, Syed Arif Siddique, the Pleader Commissioner had measured the plaintiffs shop and as per the measurement the length of the shop is 186" and breadth is 53". 11. On behalf of the defendant, 9 witnesses have been examined. 12. D.W. 1, Mobinuddin stated that the suit shop is very small, the breadth of which is only 5 feet. D.W. 2, Md. Latif has stated that the existing shop of the plaintiff is situate at Dharamshala Road which is the main market of watch. The disputed shop is located in Chaukhandi Mohalla which is also known as Kabirganj. The witness stated that the shop in possession of the plaintiff is vacant and is sufficient for his business and he does not require any other shop. 13. D.W. 5, Anwar Hasan, former tenant of the plaintiff stated that he was running a shoe shop in one of the three shops purchased by the plaintiff. He has vacated the shop and handed over its possession to the plaintiff. 14. The defendant in his evidence has supported his case in the Written Statement. He has stated that Dharamshala Road is the most convenient place for watch business. The plaintiff does not at all require the suit premises. The suit premises is not convenient for watch business. It is further stated that one of the three shops which has been vacated by the tenant has larger area than the suit premise. It has come in the evidence that the shop which has been vacated is not being utilised by the plaintiff. 15. The learned Munsif has framed as many as 10 issues for trial. He has decided Issue No. 6 in favour of the defendant. We are not concerned with this issue any more. He decided Issue No. 9 against the defendant. In my view the decision on this issue is correct. The finding on Issue No. 5 against the defendant is also correct. 16. The main issue is Issue No. 7. He has decided Issue No. 6 in favour of the defendant. We are not concerned with this issue any more. He decided Issue No. 9 against the defendant. In my view the decision on this issue is correct. The finding on Issue No. 5 against the defendant is also correct. 16. The main issue is Issue No. 7. On this issue the plaintiff has not been able to establish by cogent and convincing evidence that he required entire Schedule A building which has been purchased by registered sale deed was for his personal need and that the need was bonafide. It is to be noted that the plaintiffs case is that he is running the watch business in a rented shop which he had taken on rent from one Birendra Kumar and this shop lacked sufficient accomodation hence he required all the three shops and the godown in the building purchased by him for carrying on business of his family members. It cannot be disputed that the main Dharamshala Road is the main market for watch business. According to the defendant there is no watch shop near the building purchased by the plaintiff. The plaintiff is in possession of three godowns and a vacant shop. The vacant shop has larger area. The third shop is in possession of Nayyer Azam. 17. It cannot be disputed that the plaintiff is running his watch shop in Dharamshala Road on rented premise then he is entitled to eviction. He wants to shift in his own shop. This is not the case of the plaintiff. The specific case is that the existing shop in Dharamshala Road is not convenient for watch business because it is too small. The fact, however, remains that he is doing business there for the last 33 years. The onus is, therefore, squarely on the plaintiffs proof that he bonafide requires the suit premises. 18. As held by His Lordship in Labhu Ram vs. Ram Prakash {AIR 1959 Punjab 103) the word "required" would import something more than the mere desire and the requirement must be genuine. 19. As held in Vidya Sagar Rastogi @ Vidya Prasad vs. Bansidhar Prasad ( 1991 (1) BLJ 408 ) the conditions for eviction envisaged under Section 11 (1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 must be satisfied. 20. 19. As held in Vidya Sagar Rastogi @ Vidya Prasad vs. Bansidhar Prasad ( 1991 (1) BLJ 408 ) the conditions for eviction envisaged under Section 11 (1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 must be satisfied. 20. It has been held in M/s Tip Top & others vs. Smt. Indramani Devi (AIR 1982 Patna 190) and in Prem Prakash Sah vs. Bhadarmall Sharma (1983 PLJR 705) that the landlord is free to get a part of the premises vacated where there are several tenants. 21. It has been held in Deb Kumar Mukherjee & others vs. Abhoypada Banerjee (AIR 1958 Calcutta 229) that it is well settled that all honest requirement may not be reasonable. The same view has been taken in AIR 1954 Calcutta 476, AIR 1962 Assam 148, AIR 1959 Calcutta 181. 22. The learned Munsif has found that the breadth of the existing shop of the plaintiff is same as the breadth of the suit shop. The Pleader Commissioner has found the dimension of the plaintiffs existing shop to be 186" x 53". The Commissioner also found that there was room for any two customers at a time. 23. The most crucial point is that the plaintiff has admitted that after purchase, one shop was vacated by the tenant. He has not utilised the shop for any purpose. Another shop is in possession of one Nayyer Azam, who was examined as the plaintiffs witness. This tenant had given assurance to the plaintiff that he would vacate the shop whenever the plaintiff desires him to vacate. The learned Munsif has given credence to the assurance given by this tenant. The fact remains that there is no evidence that Nayyer Azam was asked to vacate the shop even during the pendency of the Revision Application. Learned counsel for the plaintiff has not submitted that the vacant shop in possession of the plaintiff is being utilised these days although vacated prior to the institution of the suit. 24. The learned Munsif has not at all discussed the evidence of the parties. 25. As a result of the above discussion I have come to the conclusion that the plaintiff has not been able to establish through cogent evidence that he required the suit premises bonafide for his personal use. 24. The learned Munsif has not at all discussed the evidence of the parties. 25. As a result of the above discussion I have come to the conclusion that the plaintiff has not been able to establish through cogent evidence that he required the suit premises bonafide for his personal use. The very fact that he has not utilised the vacant shop for so long and has not asked any tenant to vacate the suit premises goes against his case. The question whether in the revisional jurisdiction this Court can reverse the findings of fact is settled by this Court. I am of the view that the revisional power under Section 14 (8) of the Act is much larger to the revisional power under Section 115 of the Code of Civil Procedure. I, therefore, have no hesitation in reversing the decree of the Munsif which has not been passed on proper consideration of the evidence. The Revision Application is allowed and the decree of the munsif is set aside. No order as to costs.