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2005 DIGILAW 621 (PAT)

Vinod Kumar Gupta v. Pushpa Devi

2005-07-21

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. The petitioners are defendants of Title Eviction Suit No. 16 of 1992 which was filed by the opposite parties on the ground of personal necessity of opposite party no. 2 for the purpose of his Oil Mill business. Since the case was only on the ground of personal necessity of the suit premises, which is a building, it was under the provisions of Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act for the sake of brevity) and hence the court proceeded under the provision of Section 14 of the Act. 2. The defendants-petitioners are aggrieved by the impugned order of eviction dated 28.3.1998, by which the learned Munsif, Patnacity decreed the aforesaid suit. 3. The contention of the learned counsel for the defendants-petitioners was that the original owner of the suit land was one Santosh Prasad Singh, from whom the defendants took the Parti land at the rent of Rs.507- per month, thereafter the defendants made construction over the said land out of their own income and hence the building exclusively belonged to them. He further submitted that subsequently the rent of the land was enhanced to Rs.60/-, which was paid till the vendor sold the same to the plaintiffs by registered sale deeds dated 15.3.1991, which were Exhibits-1 and H of the suit, but since the defendants had no knowledge of the said sale, they went on paying the rent to Santosh Prasad Singh till June, 1991. 4. Learned counsel for the petitioners further contended that the tenancy was only for the land and not for the building and hence the provisions of the Act were not applicable to the instant case and the suit was not maintainable under the provisions of the Act. In this connection he relied upon a decision of this Court in the case of Anant Pd. Sah @ Anant Kumar Gupta V/s. Devendra Nath Gupta and Ors. reported in 1993(2) P.L.J.R. 77, in which it was held that if the subject matter of the tenancy is a land, the suit can be filed only under the provisions of the Transfer of Property Act. 5. Sah @ Anant Kumar Gupta V/s. Devendra Nath Gupta and Ors. reported in 1993(2) P.L.J.R. 77, in which it was held that if the subject matter of the tenancy is a land, the suit can be filed only under the provisions of the Transfer of Property Act. 5. Learned counsel for the petitioners also contended that no relief can be granted if there is no foundation in the pleadings as has been held by the Hon ble Apex Court in the case of Firm Sriniwas Ram Kumar V/s. Mahabir Prasad and Ors. reported in AIR 1951 Supreme Court 177 and in this case the plaintiffs have completely failed to show that the tenancy was for the building. He also averred that it was the duty of the plaintiffs to prove their case that the subject matter of the tenancy was a building and they cannot take benefits of the defects of the defendants claim as has been held by the Hon ble Apex Court in the case of Moran Mar Basselios Catholicos and Anr. V/s. Most. Rev. Mar Poulose Athanasius and Ors. reported in AIR 1954 Supreme Court 526, as even if the defendants have failed to prove their claim of construction, the plaintiffs cannot take advantage as they have to prove their claim from their own evidence. Hence he submits that since the finding of the court below with respect to the aforesaid matter is not correct, this Court can interfere in its revisional jurisdiction as has been held by the Hon ble Supreme Court in the case of Ram Dass V/s. Ishwar Chander and Ors. reported in (1988)3 Supreme Court Cases 131. He further contended that the plaintiffs have got no bona fide personal requirement and the finding to that effect in the impugned judgment is bad in law and on facts and moreover there is no finding for partial eviction also, which is essential for deciding the suit on the ground of personal necessity. Hence, the plaintiffs suit was fit to be dismissed. 6. On the other hand, learned counsel for the plaintiffs-opposite parties has submitted that the suit premises was a shop room and was southern part of Holding No. 69/50, Circle No. 99, Ward No. 20 (New 26) of Patnacity Municipality and was situated in Mohalla Sadiquepur, Gulzarbagh under Alamganj police station of Patna town. 6. On the other hand, learned counsel for the plaintiffs-opposite parties has submitted that the suit premises was a shop room and was southern part of Holding No. 69/50, Circle No. 99, Ward No. 20 (New 26) of Patnacity Municipality and was situated in Mohalla Sadiquepur, Gulzarbagh under Alamganj police station of Patna town. He further contended that the defendants-petitioners were tenants of the said shop room and paid rent for the same to the original owner, who sold the suit premises to the opposite party no. 1 by registered sale deed dated 15.3.1991 and also sole the northern part of the said holding to opposite party no. 2 by another registered sale deed of the same date. Learned counsel for the opposite parties further claimed that the defendants-petitioners were running their Oil Mill in the suit premises but since the plaintiffs-opposite parties had personal requirement of the suit premises for running their own business they asked the defendants to vacate the suit premises but instead of vacating the suit premises the defendants stopped payment of rent from September, 1991. It was further claimed by the learned counsel for the opposite parties that since the defendants had not vacated their premises, the plaintiffs had to run their own business in a premises which they had taken on rent from another person. He further submitted that they had four daughters and a son, who were students and required separate premises for their own. Learned counsel for the plaintiffs-opposite parties further claimed that they have fully proved their personal necessity and hence the learned court below was quite justified in passing the impugned order of eviction decreeing the suit. 7. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the relationship of landlord and tenant between the parties is admitted and only three questions have to be considered and decided here. The first question is as to whether the tenancy was for the land or building? The second question is that whether the plaintiffs have been able to prove their personal necessity? The third question is that as to whether the impugned order has been passed after considering the question of partial eviction? 8. The first question is as to whether the tenancy was for the land or building? The second question is that whether the plaintiffs have been able to prove their personal necessity? The third question is that as to whether the impugned order has been passed after considering the question of partial eviction? 8. So far the first question is concerned, it was the specific claim of the plaintiffs in the plaint that they are owners of the premises including the shop room, which they had purchased from the admitted original owner and in support of their claim they had produced the registered sale deeds dated 15.3.1991 (Exts. 1 and H).The sale deeds are clearly with respect to the building as specific holding is mentioned therein, which was in the name of the original owner. In the aforesaid circumstances, the automatic legal presumption would be that the original owner Santosh Prasad Singh was not only the owner of the land but was also the owner of the building and the defendants were the tenants of the entire premises, for which they paid rent. Furthermore, after the said sale the plaintiffs automatically became the owner and landlord of the said premises and the rent paid by the defendants were clearly with respect to the entire premises including the land and building. In the said background since the plaintiffs had been able to prove that they were owner and landlords of the entire premises, it was incumbent upon the defendants to disprove the plaintiffs claim by valid and reliable evidence but from the materials on record as well as from the impugned order it is quite apparent that they had miserably faiied to disprove the plaintiffs claim by any valid or reliable evidence. Furthermore, the defendants admittedly not raising any question of title and admitting the relationship of landlord and tenant between the parties, it cannot be legally held that they were tenants of merely land and not the building. In the said circumstances, the learned court below has rightly come to the conclusion that there was relationship of landlord and tenant between the parties with respect to the suit premises. 9. So far the question of personal necessity is concerned, it is an admitted fact that plaintiff no. In the said circumstances, the learned court below has rightly come to the conclusion that there was relationship of landlord and tenant between the parties with respect to the suit premises. 9. So far the question of personal necessity is concerned, it is an admitted fact that plaintiff no. 2 has been running his business in a rented premises and hence this fact is sufficient to prove their personal necessity as has been held by this Court in the case of Dr. Hemchandra Jha V/s. Smt. Anjana Lal reported in 1987 P.LJ.R. 582 and in the case of M/s. Tip Top and others V/s. Smt. Indramani Devi reported in AIR 1982 Patna 190. Furthermore, the mere contention of the defendants that the plaintiffs had other premises also cannot defeat the plaintiffs clajm as they had a right to choose for satisfaction of their requirement as has been held by this Court in the case of M/s Tip Top and others (supra) as well as in the case of Sadhu Sharan Sahai & Anr. V/s. National Seeds Corporation Ltd. & Ors. reported in 1989 B.B.C.J. 126. In addition to the aforesaid the learned court below has elaborately considered the question of personal necessity and has specifically found that the plaintiffs had been able to prove their bonafide personal requirement completely and sufficiently. 10. So far the question of partial eviction is concerned, the law is well settled that the landlord cannot be saddled with the onus of proving as to whether bonafide requirement can be substantially satisfied by order of partial eviction as once the landlord has proved his bonafide need of the premises, onus shifts on the tenant. This view has been taken by a Division Bench of this Court in the case of M/s Bata India Ltd. V/s. Dr. Md. Qamruzzama reported in 1993(1) P.L.J.R. 87, which has held that it is the tenant who has to express his readiness and willingness for part occupation of the premises and to show that the plaintiffs need can be substantially satisfied by evicting the defendant from only part of the premises and allowing him to continue in occupation of the rest of it. In the instant case the defendants evidence is completely silent on the point of partial eviction, whereas paragraph-6 of the impugned order fully shows that the plaintiffs have claimed and proved that their necessity will not be satisfied by partial eviction of the suit premises. Hence, in my view, the petitioners cannot raise the question of partial eviction at the revisional stage on the ground that there is no specific evidence on the point. This view also finds support from another decision of this Court in the case of Food Corporation of India & Ors. V/s. Vishun Properties & Enterprises & Ors. reported in 1995 B.B.C.J. 711 in which it has been specifically held that plea for partial eviction must be raised in the written statement or deposition and is not to be decided suo motu. Here the defendants have completely failed to show that they raised any such question either in the written statement or in their evidence, which clearly indicates that they were not ready for partial eviction. Furthermore, it is an admitted fact that the defendants are running their Oil Mill in the entire suit premises, which is one room (katra). Hence it is apparent that the requirement of the plaintiffs, who also want to run an Oil Mill, can be satisfied only by eviction of the defendants from the entire suit premises. 11. In the aforesaid circumstances, I do not find any illegality or material irregularity in the impugned order, nor there is any question of jurisdictional error in the impugned order. 12. Accordingly, this civil revision is dismissed.