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2002 DIGILAW 951 (PAT)

Surendra Kumar Azad v. Md. Hanifuddin

2002-09-02

NAGENDRA RAI

body2002
Judgment 1. The tenant is the petitioner against the judgment and decree dated 10.7.2001 passed in Eviction Suit No. 23 of 1999 by the Additional Munsif-lll, Bihar-sharif, decreeing the suit for eviction from the suit premises on the ground of personal necessity in terms of section 11 (1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as the Act). 2. Admittedly, the suit property appertains to Holding No. 143, measuring 1 katha of land, described in the schedule of the plaint, situated in the town of Biharsharif. The said land belonged to one S.M. Shoaib, who had two wives, namely, Bini Nasiran and Sanjida Khatoon alias Ladli. Bini Nasiran has no issue, whereas, Sanjida Khatoon (second wife) has one son, namely, Fazle Rabbi alias Makki and a daughter, namely, Durrashahwar alias Lucy. The plaintiffs case is that on 18.2.1992, Shoaib gifted the aforesaid holding measuring 26 1/2 feet from north to south and 52 feet east to west along with other lands to his said minor son and daughter, which was accepted by their mother Sanjida Khatoon. In the deed instead of 26 1/2 feet from north to south, it was wrongly mentioned as east to west and similarly instead of 52 feet east to west, it was mentioned as 52 feet north to south, which the plaintiffs got corrected while purchasing the same. Said sister Lucy orally gifted her share to her brother Fazle Rabbi alias Makki and her mother Sanjida Khatoon and their names were mutated. On 9.12.1998, aforesaid Fazle Rabbi and Sanjida Khatoon sold the suit premises by two sale-deeds in respect of 10 dhurs each in the names of the two plaintiffs. 3. Defendant-opposite party no. 3 was the tenant in the premises before the purchase by the plaintiffs. After purchase, they informed the tenant and, thereafter, he paid rent @ Rs. 200/- per month and accepted the plaintiffs as landlords. Thereafter, they asked him to vacate the premises as they have purchased the suit premises for running a poultry-farm. The tenant asked for sometime but later on he did not vacate the same. Hence, the suit. 4. Defendant-opposite party no. 3, namely, Janardan Prasad, appeared and contested the suit. He filed a written statement tating that holding of the suit land is not 143 but 146 and it never belonged to the vendors of the plaintiffs. The tenant asked for sometime but later on he did not vacate the same. Hence, the suit. 4. Defendant-opposite party no. 3, namely, Janardan Prasad, appeared and contested the suit. He filed a written statement tating that holding of the suit land is not 143 but 146 and it never belonged to the vendors of the plaintiffs. He is not the tenant either of the plaintiffs or their vendors. He also denied bona fide need of the plaintiffs. He further stated that his brother Surendra Kumar Azad (petitioner herein) is tenant of holding no. 146, which belongs to Md. Shahabuddin alias Parwej, and is doing his own business over the suit premises. Thereafter, said Surendra Kumar Azad was added as a party to the suit and he filed his written statement and has also stated the same very thing, which defendant no. 1 had stated. Apart from the facts stated by defendant no.1-opposite party no. 3 ion his written statement, he further stated that the holding in question is holding no. 146, which he has taken on rent from Md. Shahabuddin alias Parwej for running a shaw-mill and he is running the same and he is not the tenant of either the plaintiffs or their vendors. 5. It is admitted position that the suit has been conducted by adopting the special procedure as provided under section 14 (2) of the said Act. The plaintiffs examined seven witnesses and produced documentary evidence, including sale-deeds and the original deed of gift. Defendant no. 2-petitioner also examined seven witnesses and produced documentary evidence. The court below, after having considered the matter, decreed the suit for eviction. 6. Learned counsel appearing for the petitioner raised two points; firstly he submitted that a complicated question of title was involved in the suit and as such the eviction suit itself was not maintainable under the provisions of the Act and secondly he submitted that the question of partial eviction has not been considered in terms of the provisions of section 11 (1) (c) of the Act. 7. Learned counsel for the plaintiff-opposite parties, on the other hand, submitted that no complicated question of title was involved in the suit, on the other hand, the question raised by the defendants that the suit land appertained to holding no. 146 and not holding no. 143 has been rightly rejected by the court below on cogent evidence. 7. Learned counsel for the plaintiff-opposite parties, on the other hand, submitted that no complicated question of title was involved in the suit, on the other hand, the question raised by the defendants that the suit land appertained to holding no. 146 and not holding no. 143 has been rightly rejected by the court below on cogent evidence. The court below has also considered the question of partial eviction according to law. 8. This Civil Revision has been filed under the proviso to section 14 (8) of the Act, which empowers this Court to judge the validity of the order and also to see as to whether the judgment and decree are according to law or not. In other words, this Court has to consider as to whether there is any error of law in arriving at the conclusions/findings by the court below not. Though the power is not as wide as of an appellate court nor as limited as of a revisional court under section 151 of the Code of Civil Procedure, but the court exercising the power can reappraise the material on the record to find out as to whether the conclusion/finding arrived at by the court below is according to law or not. If the court below has committed a serious error of law, or in the sense of having omitted the material, which may have a bearing on the question, or has relied upon a wholly impermissible evidence and has not appreciated the evidence according to the statutory requirements, the court will interfere in exercise of the power under the aforesaid provision. 9. It is well-settled that the question of title between the parties is beyond the scope of the Court exercising jurisdiction under the Act. The establishment of relationship of land-lord and tenant is condition precedent for grant of relief. The complicated question of title cannot be gone into. 10. In this case, the defendants did not claim title in themselves but asserted that the suit premises appertained to holding no. 146 and belonged to one Md. Shahabuddin alias Parwej and not to the plaintiffs or their vendors. The court below has elaborately considered the oral and documentary evidence adduced by the parties and has negatived the claim of the defendants by taking into consideration the relevant facts. 146 and belonged to one Md. Shahabuddin alias Parwej and not to the plaintiffs or their vendors. The court below has elaborately considered the oral and documentary evidence adduced by the parties and has negatived the claim of the defendants by taking into consideration the relevant facts. It has also taken note of the fact that, admittedly, the defendants are running a saw-mill and they have admitted in their evidence that the licence has been granted, wherein the descriptions of the property etc. are given but they did not produce the same. Had the licence been produced, the same would have been the best evidence to show about their claim that the suit premises appertained to holding no. 146 and not to holding no. 143. 11. Learned counsel for the petitioner did not point out any infirmity justifying interference with the finding arrived at by the court below that there is a relationship of landlord and tenant. Once it is found that the vendors of the plaintiffs were landlords and the plaintiffs have purchased the suit premises from them, then they stepped in the shoes of the landlords and attornment is not necessary at all in such a case. Thus, this Court finds no legal infirmity so far as the finding of the court below that there is relationship of landlord and tenant is concerned. The court below has also found that the plaintiffs want to start their own business and as such they require the suit premises reasonably and in good faith. The evidence of the defendants on this point has been found to be not convincing by the court below. Learned counsel for the petitioner was not able to assail the aforesaid finding and as such the same is alsoupheld. 12. Coming to the question of partial eviction, it appears that the court below has rejected the same only on the ground that as the tenant asserted that suit premises appertained to holding no.146 and they have no objection to the decree being granted with regard to holding no. 143, the determination of the question of partial eviction was not necessary and even if it was necessary, the entire premises will meet the reasonable need of the plaintiffs. 143, the determination of the question of partial eviction was not necessary and even if it was necessary, the entire premises will meet the reasonable need of the plaintiffs. In my view, learned counsel for the petitioner is right in submitting that the court below has not considered this question in terms of the proviso to section 11 (1) (c) of the Act. According to the requirement of the proviso, the court has to consider the question of partial eviction even if it is not raised by the tenant. The court has to consider this question after taking into consideration the extent of the premises, reasonable requirement of the landlord and as to whether the said reasonable requirement will be substantially (not fully) satisfied by partial eviction. The court below has not gone into the said question. Accordingly, the finding arrived at by the court below with regard to partial eviction is not according to law. 13. Accordingly, this Civil Revision is allowed in part. The finding of the court below that the suit premises are required by the plaintiffs reasonably and in good faith is upheld. However, the finding of the court below regarding partial eviction is set aside and the matter is remitted to the court below to consider the said question in accordance with law. It goes without saying that if any of the parties desires to lead evidence then the court below will give an opportunity within fixed time and, thereafter, will decide the said question.