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2004 DIGILAW 21 (PAT)

Bhola Prasad Sah v. Ram Dhani Prasad

2004-01-07

NAGENDRA RAI

body2004
Judgment 1. The tenants have filed the present revision application under the proviso to section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, (hereinafter referred to as the Act), challenging the judgment and decree dated 17.7.2001 passed in Title Eviction Suit No. 30 of 1997, whereby the court below has decreed the suit of the plaintiff-opposite parties for eviction with regard to the properly detailed in Schedule-A of the plaint on the ground of personal necessity under section 11(1)(c) of the Act. 2. The suit premises consists of a shop (Katra) facing the main road and bearing holding no. 35, Circle no. 180, Ward no. 32. situated in Muhalla Jhauganj. P.S. Chawk, Patnacity, Patna. The case of the plaintiffs is that they are the land-lords and the father. of the defendants was inducted as tenant in the said shop on a monthly rental of Rs. 300/- and the last rent was paid up to the month of March, 1996. Thereafter, they stopped the payment of rent. Plaintiff no. 1 was in service and he retired in the year 1993. He has one unemployed son, namely, Shyam Sundar and one handicapped unmarried daughter, namely, Miss Madhuri Kumari. Due to Polio attack, said Madhuri Kumari became handicapped and it is not possible to marry her. Daughter of plaintiff no.1 obtained training in beautician course for the purpose of opening a Beauty Parlour in order to make her self dependent. According to the plaintiffs, the suit premises is required reasonably and in good faith for opening a Beauty Parlour with a view to engage daughter of plaintiff no.1 for her livelihood. The plaintiffs asked the defendants to vacate the suit premises but they refused to do so and hence the suit for eviction. 3. The case of the defendant-petitioners in brief, is that they denied relationship of landlords and tenants. They also denied the personal need of the plaintiffs. They admitted that they were inducted as tenants in the suit premises and were in possession thereof as tenants. However, they denied that they were tenants of the plaintiffs. They stated that they were tenants of Shambhu Nath, Bisheshwar Prasad and Bishwanath Prasad (plaintiff no.3 and two other brothers of the plaintiffs). They admitted that they were inducted as tenants in the suit premises and were in possession thereof as tenants. However, they denied that they were tenants of the plaintiffs. They stated that they were tenants of Shambhu Nath, Bisheshwar Prasad and Bishwanath Prasad (plaintiff no.3 and two other brothers of the plaintiffs). The aforesaid three persons sold the premises to the defendants mother Smt. Radha Devi by two registered sale-deeds dated 21.7.1996 and 7.8.1997 and, thereafter, the mother of the defendants became the owner of the suit premises. Bishwanath Prasad, though was one of the plaintiffs, but has supported the case of the defendants. According to their case, the suit premises falling in plot no. 460, belonged to one Jhabbu Sao. who died leaving behind his two sons, namely, Chiranji Lal and Gobardhan Lal. Gobardhan Lal was married to Kaushalya Devi. In 1938, there was a partition by a registered deed between the two sons of Jhabbu Sah and Gobardhan Lal received half share of the property in the western portition measuring 22 decimals. At the time of partition, in 1938 family of Gobardhan Lal consisted himself, his wife, Kaushalya Devi and his sons, namely, Ram Narain Lal, plaintiff-opposite parties Bishwanath Prasad and Ram Dhani Prasad. After partition, again two daughters and three sons were born. Three sons are Shambhu Nath, Satya Narain Prasad and Bisheshwar Prasad. The daughters did not claim any interest in the property. In 1973, one of the sons of Gobardhan Lal, namely, Ram Narain Lal sold two annas share to his remaining brothers. Thus, the share of the remaining five brothers i.e. the plaintiffs and his two other brothers became 2 annas 6 pies. Gobardhan Ladied in 1974 and in 1993 his widow died and their shares fell upon the five sons including three appellants. In 1995, an oral partition took place, according to which the properties were divided by metes and bounds between five brothers including the three plaintiffs and the suit premises fell into the share of Shambhu Nath, Bishwanath Prasad and Bisheshwar Prasad, who sold the property to the mother of the defendants as stated above. Thus, they asserted that the plaintiffs were not the landlords of the suit premises and no eviction decree could be granted at their instance. 4. Thus, they asserted that the plaintiffs were not the landlords of the suit premises and no eviction decree could be granted at their instance. 4. Both the parties adduced oral and documentary evidence and the court below having considered the matter held that there was relationship of landlords and tenants between the plaintiffs and the defendants. The sale-deeds, by virtue of which the suit property was claimed to have been sold to the mother of the defendants, were not valid documents as they were executed at Bombay and Calcutta contrary to the provisions of the Registration Act as amended by the State Government. The trial court also held that even if it is assumed that there was a sale by some of the co-sharers of the plaintiffs in favour of the mother of the defendant-opposite parties, the defendants could not be termed as owners/landlords of the suit property as that was not the case of the defendants that the purchase by the mother was made on behalf of the joint family. The trial court also held that the daughter of plaintiff no.1 is handicapped and suffering from polio and she has taken training in beautician course and the suit premises is required reasonably and in good faith for her settlement. The trial court also considered the question of partial eviction and held that the same would not substantially satisfy the need of the plaintiff-landlords. 5. Learned counsel appearing for the defendant-petitioners submitted that there being a bona fide dispute with regard to the title over the suit premises between the parties, the eviction suit was not maintainable and the court below while deciding eviction suit cannot declare the sale-deeds executed in favour of the mother of the defendants as invalid documents. On the date when the suit was filed, there being no relationship of landlords and tenants between the plaintiffs and the tenants, the trial court erred in passing a decree for eviction. 6. Learned counsel for the plaintiff-opposite parties combatted all the submissions and submitted that in view of the admission made by the defendants that they were the tenants of the plaintiffs, the court below rightly held that there was relationship of landlords and tenants between the parties. The sale made in favour of the mother of the defendants was invalid one. Learned counsel for the plaintiff-opposite parties combatted all the submissions and submitted that in view of the admission made by the defendants that they were the tenants of the plaintiffs, the court below rightly held that there was relationship of landlords and tenants between the parties. The sale made in favour of the mother of the defendants was invalid one. Even if it is treated to be a valid one that was made by some of the members of the joint family and unless the share of the purchaser (mother of the defendants} is carved out, they cannot claim a specific share in the suit properties disentitling the plaintiffs to claim decree for eviction. Even law is well-settled that one co-sharer can bring the suit for eviction against the tenant. It is not necessary that all co-sharers should join as plaintiffs. The court below has considered the evidence and has rightly held that the need of plaintiff no.1 is bona fide one and partial eviction will not be justified in this case. 7. The defendants have admitted the tenancy in their written statement saying that they were originally the tenants of the plaintiff-opposite parties. However, their case is that there was a private partition between the co-sharers including the plaintiffs, in which the suit property fell into the share of the three brothers, who have sold the property to the mother of the defendants and as such relationship of landlords and tenants between them has come to an end. In this connection, learned counsel for the petitioners relied upon two judgments of the Supreme Court; one rendered in the case of R. Kanthimathi vs. Beatrice Xavier, reported in (2000)9 S.C.C. 399 and the other rendered in the case of Rajendra Tiwary vs. Basudeo Prasad, reported in (2002)1 S.C.C. 90 . 7A. So far as the Kanthimathis case (supra) is concerned, that was a case where tenancy was admitted but there was agreement for sale between the plaintiff and tenant-defendant and in pursuance of written argument, the possession was surrendered to the tenant and dealing with the said question the Apex Court held that once there is an agreement of sale between a landlord and a tenant, the old relationship as such comes to an end and even after cancellation of such agreement of sale, the status of tenant is not restored as such. That case has no application in this case as admittedly the suit property was never sold even by some of the cosharers in favour of the defendant-tenants, rather the purchase has been made in favour of the mother of the defendants and she has neither been examined nor has any case been made out by the defendant-tenants that the acquisition was made by their mother for the benefit of the joint family. 8. So far as the other case of Rajendra Tewary (supra) is concerned, in that case a suit for eviction was dismissed though the trial court found that the plaintiff has title over the same and this Court interfered with the judgment of the trial court and remanded the matter to consider as to whether an equitable decree of eviction could be passed or not against the defendant on the basis of the title under Order VII Rule 7 of the Code of Civil Procedure. Dealing with the said matter, the Apex Court held that the Act is special Act and the eviction can be granted on the grounds mentioned therein. The Court of Rent Controller having limited jurisdiction to try the suit on grounds specified in the special Act obviously does not have jurisdiction of the ordinary Civil Court and. therefore. cannot pass a decree for eviction of the tenant on a ground other than the one specified in the Act. The said decision also does not help the petitioners because in this case the plaintiffs claimed eviction on the grounds specified in the Act. The defendants claimed that the concerned plaintiffs have no title to the suit property by virtue of sale-deeds having been executed in favour of their mother. The sale-deeds, as stated above, were executed at Calcutta and Bombay contrary to the provisions of the Registration Act as amended by the State Government. The purchaser is not the tenant, rather she is the mother of the tenants. They claimed that her vendors were allotted the suit property, which has been denied by the plaintiffs and it is admitted position that a suit is pending between the parties for partition between the family members of the plaintiffs, wherein the mother of the defendants has also been made as a party-defendant and as such the question as to whether there was a partition or not is still to be gone into. In that view of the matter, the defendants cannot be said to have acquired the right of the land-lords nor has their status as tenants been changed. 9. The law is well-settled that even one co-sharer can singly maintain a suit for eviction against the tenant under the Rent Control Laws in absence of other co-sharers. So, if some of the co-sharers have not joined as plaintiffs or have joined the camp of the defendants, the same cannot be a ground to non-suit the plaintiffs. In this connection, reference may be made to a Full Bench judgment of this Court in the case of Sharfuddin vs. Bibi Khatija, reported in 1987 P.L.J.R. 978. Thus, the first point raised on behalf of the defendant-petitioners is without substance. 10. The court has considered the oral evidence as well as the certificate of training of beautician Course and found that the daughter of plaintiff no. 1 is suffering from Polio and the suit premises is required reasonably and in good faith for her own use and occupation. The learned counsel for the petitioners did not challenge the aforesaid finding on the ground that either there is a non-consideration of evidence or there is reliance on inadmissible evidence or the court below has not taken note of the relevant legal provisions of law while deciding the aforesaid question and as such the said finding also does not suffer from any legal infirmity. 11. So far as the question of partial eviction is concerned, which has to be considered by the Court in terms of the priviso to section 11(1) (c) of the Act, the trial court has considered the said question in paragraph 11 of the judgment and has stated that from the evidence of D.Ws. the dimension of the suit premises has been taken and they have not stated that the dimension of the premises is much more than what the plaintiffs require for running a Beauty Parlour and. accordingly, negatived the claim of partial eviction. 12. In my view, the court below has not considered the question of partial eviction according to law. the dimension of the suit premises has been taken and they have not stated that the dimension of the premises is much more than what the plaintiffs require for running a Beauty Parlour and. accordingly, negatived the claim of partial eviction. 12. In my view, the court below has not considered the question of partial eviction according to law. The law is well-settled that even if there is no claim of partial eviction by the tenant, the Court has to consider the said aspect of the matter and has to decide firstly the extent of the premises, then to determine reasonable need ot the plaintiffs and, thereafter, to decide as to whether such requirement will be substantially satisfied or not by partial eviction of the tenant from the premises. The Apex Court in the case of Nasirul Haque vs. Jitendra Nath Dey reported in A.l.R 9184 Supreme Court 1799(2) held in paragraph 1 as follows : "In determining the question of partial eviction the proviso to S. 12 (1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act of 1977, in terms enjoins that what is necessary to be considered is the reasonable requirement of the landlord and whether it would be "substantially satisfied by evicting the tenant from a part only of the premises. The Court has, therefore, in the first instance, to determine the extent of the premises which the landlord "reasonably" requires, Determine it objectively and not on the basis of his ipse dixit or his mere desire to occupy as much as he wants. But the Court has to, furthermore, apply a test as to whether such requirement, as the Court considers reasonable, will be substantially satisfied (not fully satisfied) by ordering partial eviction. The question, thus, has to be determined by giving full effect to the concept ot reasonable extent of the requirement from the perspective of substantial satisfaction of such requirement as considered to be reasonable objectively." 13. From a perusal of the impugned judgment, it appears that the court below has not considered the said question in terms of the settled law. Accordingly, the findings of the court below that there is relationship of landlords and tenants between the plaintiffs and the defendants and that the suit premises is required reasonably and in good faith for opening a Beauty Parlour for the handicapped daughter of plaintiff no.1 are upheld. Accordingly, the findings of the court below that there is relationship of landlords and tenants between the plaintiffs and the defendants and that the suit premises is required reasonably and in good faith for opening a Beauty Parlour for the handicapped daughter of plaintiff no.1 are upheld. So far as the finding with regard to partial eviction is concerned, that suffers from legal infirmity and. accordingly, the said finding is set aside and the matter is remitted to the court below to consider the question of partial eviction within a period of four months from today, it will be open for the parties, if they so desire, to lead evidence in the matter. 14. In the result, this Civil Revision is partly allowed, subject to the direction/observation aforementioned.