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2002 DIGILAW 893 (PAT)

Bhola Prasad v. Kashi Kant Jha

2002-08-16

NAGENDRA RAI

body2002
Judgment 1. The Civil Revision is barred by limitation. After hearing learned counsel for the parties and taking into consideration the averment made in the limitation petition, the delay in filing this Civil Revision is condoned and the limitation petition, thus, stands disposed of. 2. The defendant is the petitioner against the judgment and order of eviction dated 16.10.2001 passed by the Munsif, Madhubani, decreeing Title Suit No. 2 of 1999 filed by the plaintiff-opposite parties. This Civil Revision has been filed under the proviso to section 14 (8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as the Act), which empowers the High Court to call for the records for the purpose of satisfying that the order of eviction is according to law or not. 3. The factual matrix essential for disposal of the present application are that the plaintiff-opposite parties filled a suit for eviction with regard to Schedules I & II properties of the plaint with the assertion that these properties, which are part of plot no. 594, situated in village Behta, P.S. Benipatti and District Madhubani, belonged to one Ramdeo Mahto and Ramchandra Mahto, who sold the same to the plaintiffs on 17.1.1975 and 3.2.1976. The property described in Schedule I of the plaint was let out to the defendant-petitioner in 1985 for running a flat-rice mill. After about three years, the plaintiffs constructed a khaparpose Makan, which is described in Schedule-ll of the plaint, and let out the same to the tenant-petitioner for residence. Further case of the plaintiffs is that plaintiff no. 3 for the last several years is running a medicine shop in a rented house and plaintiff no. 2 on the assurance of the tenant- petitioner to vacate the premises, purchased X ray machine to run the same in Schedule-II premises, but the defendant-petitioner did not thereafter vacate the premises and, accordingly, he has opened an X ray plant at Basopatti. Thus, according to the plaintiffs, they require the premises described in Schedules I & II for their personal use in good faith. As plaintiff no. 2 wants to shift the X ray machine in the suit premises and plaintiff no. 3 wants to shift his medicine shop in the same, they requested the tenant-petitioner to vacate the suit premises, but he refused to do so, hence the suit. As plaintiff no. 2 wants to shift the X ray machine in the suit premises and plaintiff no. 3 wants to shift his medicine shop in the same, they requested the tenant-petitioner to vacate the suit premises, but he refused to do so, hence the suit. The defendant-petitioner has also defaulted in payment of rent, for which a suit has been filed separately. 4. The tenant-petitioner took a plea that the suit premises do not belong to the plaintiffs. The total area of the disputed land is 5 kathas 19 dhurs, out of which over an area of 1 katha 1 dhur, after filling up the ditch, he has constructed a house of Phus and started a kirana shop in the part of the same and, thereafter, he constructed a Khaparpose house over the other part in 1985 and since then he started running a flour-mill in the same. In the Phus house, which was constructed earlier, he started running a flat-rice mill since 1997. Thus, the case of the defendant petitioner is that there was no relationship of landlord and tenant between them and the suit premises did not belong to the plaintiffs. 5. As the suit was for eviction on the ground of personal necessity, a special procedure under the proviso to section 14 (8) of the Act was followed and after grant of leave to the tenant-petitioner, both sides were given opportunities to adduce oral and documentary evidence. The plaintiff opposite parties examined eight witnesses and produced documentary evidence, whereas, the defendant-petitioner examined 16 witnesses. The trial court, having considered the evidence of both the parties, came to a definite finding that the plaintiffs required the premises reasonably and in good faith for their occupation and the partial eviction would not meet their substantial requirement and, accordingly, decreed the suit, hence the present revision. 6. The power under the proviso to section 14 (8) of the Act of this Court is limited to the extent of seeing as to whether the order of eviction is according to law or not. For this limited purpose, the Court can reappraise the evidence. However, it cannot reappraise the evidence as an appellate court and will not interfere with the order on the ground that on appreciation of evidence a different view can be taken. For this limited purpose, the Court can reappraise the evidence. However, it cannot reappraise the evidence as an appellate court and will not interfere with the order on the ground that on appreciation of evidence a different view can be taken. In other words, the power of this Court is not as wide as of an appellate court nor it is as limited as of a revisional court under section 115 of the Code of Civil Procedure. Thus, this Court will interfere in case it is found that the order is based on no evidence or the court below has ignored the material evidence, which has affected the findings or the findings are perverse, unreasonable or having been arrived at without considering the statutory requirements for grant of relief. 7. The admitted fact is that the suit premises, described in Schedules I & II of the plaint, are being used by the defendant-petitioner for running a flat-rice mill as well as for running a flour mill and oil mill. The plaintiff-opposite parties claimed to have acquired the suit premises by virtue of purchase from Ramdeo Mahto, and they have produced the sale-deeds as well the orders creating Zamabandi in their names since long, whereas, the defendant-petitioner has not produced any document to show acquisition of the property except the oral assertion of being in possession thereof since long. The defendant-petitioner in his own evidence has admitted that he has no documentary evidence to prove that he has constructed the premises. He does not remember even as to from which brick-kiln, the bricks were purchased for construction of the premises nor has he any idea about the dimension of the ditch which the defendant is claimed to have filled up for making construction. 8. The Court below, after having considered the evidence adduced by the parties, found that the evidence of the plaintiff- opposite parties is acceptable. So far as the ownership of the suit premises is concerned, it, accordingly, held that the plaintiff-opposite parties are the owners of the same and they have let out the premises to the defendant-petitioner. 9. So far as the reasonable and bona fide need of the plaintiff-opposite parties is concerned, the evidence on the record shows that plaintiff no. 1 is a retired employee of the Bihar State Electricity Board, plaintiff no. 9. So far as the reasonable and bona fide need of the plaintiff-opposite parties is concerned, the evidence on the record shows that plaintiff no. 1 is a retired employee of the Bihar State Electricity Board, plaintiff no. 2 is running an X ray machine in a rented house and plaintiff no. 3 is running a medicine shop in a rented house. It has also come in evidence that in front of the suit premises, the plaintiffs have a commercial complex consisting of eight shops, which have been let out to the tenants. The court below has found that the suit premises are reasonably and in good faith required by the plaintiffs no. 2 and 3 for running their own business and the shops in the commercial complex in front of the suit premises are not vacant to accommodate them. 10. Learned counsel appearing for the tenant-petitioner did not point out any infirmities in the plaintiffs evidence nor pointed out non-consideration of material evidence by the court below in arriving at the said findings. His assertion that in the commercial complex some shops are vacant cannot be accepted when the definite finding by the court below has been arrived at that the said premises are not available at present for being used by the plaintiffs for starting their business. This apart, it is well-settled that the landlord has not to prove the dire need. He has to prove the reasonable and bonafide requirement of the premises. In other words, the requirement should not be mere wish, impulse or desire of the land-lord and there should be element of need and the need should be reasonable and bona fide one. 11. In this case, the court below has found that the requirement of the plaintiffs is bona fide and reasonable one and the learned counsel for the petitioner has not been able to assail the aforesaid finding. Thus, it is held that the suit premises are required by the plaintiffs reasonably and in good faith and accordingly, the conditions for eviction as provided under section 11 (1) (c) of the Act have been fulfilled. 12. Proviso to section 11 (1) (c) of the Act provides that the Court has to consider the question of partial eviction and if the reasonable requirement of the plaintiffs is substantially satisfied by partial eviction in that case the Court will allow partial eviction. 12. Proviso to section 11 (1) (c) of the Act provides that the Court has to consider the question of partial eviction and if the reasonable requirement of the plaintiffs is substantially satisfied by partial eviction in that case the Court will allow partial eviction. It is the duty cast upon the Court to consider the question of partial eviction even if no such plea is taken by the tenant. While dealing with the question of partial eviction, the Court is firstly required to consider the extent of the premises available, then the reasonable and bona fide need of the plaintiff and, thereafter, to decide as to whether the requirement of the landlord will be substantially, and not fully, satisfied by partial eviction or not. In the present case, the court below has considered this question and has found that as the plaintiffs no. 2 and 3 have to open a medicine shop and X ray plant, which require not only premises for running the shop but also for storing the medicines and for making a provision of dark-room apart from keeping the Xray machine, came to a definite finding that the partial eviction of the tenant will not meet the substantial requirement of the plaintiffs. The said finding, in my view, does not suffer from any legal infirmity, on the other hand, it is based on cogent reasons Supported by evidence on the record. 13. Thus, there is no merit in this Civil Revision and it is, accordingly, dismissed.