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2005 DIGILAW 671 (JHR)

Reshmi Dugar v. Ram Somari Devi

2005-09-02

R.K.MERATHIA

body2005
JUDGMENT R.K. Merathia, J. 1. This appeal, by the tenant, has been preferred against the judgment and decree dated 25th June, 1998, passed by Shri Kamla Prasad, Additional District Judge, Koderma in Title (Eviction) Appeal No. 6 of 1991, whereby, learned lower appellate Court has reversed the judgment and decree dated 30.4.1991, passed by Sri Nishat Haider, Munsif, Koderma in Title (Eviction) Suit No. 61 of 1986. 2. This appeal was admitted on 13.4.1999 for hearing on the following questions of law. (1) Whether the lower appellate Court while reversing the judgment of the trial Court has property appreciated the evidence adduced by the defendants- appellants? (2) Whether a decree for eviction as against the trespasser under Section 14 of the B.B.C. Act can be sustained in law? 3. Plaintiff-appellant filed this suit on 19.12.1986 on the ground of personal necessity, against Smt. Reshmi Dugar, wife of late Bachraj Dugar and Sri Kamal Dugar. Plaintiffs case in short was that the suit premises was purchased by her under a registered sale-deed dated 16.2.1960. After death of the tenant-Bachraj Dugar, his widow, on her behalf and on behalf of her minor children, has been continuing as tenant. Kamal Dugar (defendant No. 2), brother of late Bachraj Dugar, was not a tenant but on the strength of purported orders passed by the Sub-Divisional Officer and Deputy Commissioner, Koderma, he claimed concern in the suit premises and, therefore, he was also added as defendant. The plaintiff required the suit premises for engaging her two sons, Umesh Singh and Ramesh Singh in business, which was suitable for the purpose. 4. The case of the defendants in short was that Bachraj Dugar was never a tenant in his individual capacity. Rather the Firm-Dugar Brothers is the tenant. The Firm was reconstituted from time to time and certain family members of Dugar family were its partners. The defendants contended that the Firm and all surviving heirs of Dugar family have not been made party in the suit. The defendants denied that plaintiffs required the suit premises for engagement of her sons as they were engaged in other business. It was further contented that the plaintiff could utilize other premises for engaging her sons. 5. The defendants contended that the Firm and all surviving heirs of Dugar family have not been made party in the suit. The defendants denied that plaintiffs required the suit premises for engagement of her sons as they were engaged in other business. It was further contented that the plaintiff could utilize other premises for engaging her sons. 5. Plaintiffs got the plaint amended stating inter alia that defendant No. 2-Kamal Dugar admitted in the proceeding before S.D.O., Koderma that Bachraj Dugar was running the business in the name of Dugar Brothers as a proprietor and Dugar Brothers was not a partnership Firm; and that all his brothers were separate in all aspects having no concern with Dugar Brothers. Alternatively, it was pleaded that even if some of the family members were partners of Dugar Brother, the partnership came to and end long back and thus they were not the tenants. However in view of certain orders passed by the Deputy Commissioner, Hazaribagh (Ext.-R) in H.C. Appeal No. 7/1986, the plaintiff added certain family members of Dugar family as defendants in the suit. 6. Learned trial Court accepted the contention of the defendants and held that Dugar Brothers was the tenant and they were the partners. Learned trial Court did not accept the plea of the plaintiff that. Bachraj Dugar was proprietor of Dugar Brothers and after his death, his widow (defendant No. 1) only became tenant. Regarding personal necessity of the plaintiff, it held that her sons are running other business and as such she is not entitled to decree of eviction. However, the trial Court held that when all the five partners of the Firm-M/s Dugar have been impleaded as party, the suit was not bad for non-rejoinder of the necessary party and was maintainable in its present form. In the result, the suit was dismissed. 7. The plaintiff preferred appeal against the said judgment and decree. However, the trial Court held that when all the five partners of the Firm-M/s Dugar have been impleaded as party, the suit was not bad for non-rejoinder of the necessary party and was maintainable in its present form. In the result, the suit was dismissed. 7. The plaintiff preferred appeal against the said judgment and decree. The learned lower appellate Court held that the plaintiff was admittedly the landlady and Bachraj Dugar was running business in the name of Dugar Brothers as sole proprietor, and after his death, her widow, Smt. Reshmi Dugar (defendant No. 1) and her minor children became the tenant; and that the defendants, the other family members of Dugar Family were not partners of Dugar Brothers as claimed and therefore they were trespassers; and that oral and documentary evidences produced by the defendants did not prove their claim of being partners of Dugar Brothers. Regarding personal necessity, learned lower appellate Court held the defendant could not prove conclusively that sons of plaintiff are doing sonic work elsewhere, and therefore the plaintiffs requirement of suit premises was reasonable and bona fide. Accordingly, the suit was decreed. Against this, appellate judgment, the present appeal has been preferred. 8. By order dated 15.9.2004, this Court called for a finding from the trial Court on the question of partial eviction. Under the judgment dated 11.1.2005, learned trial Court returned the finding holding that the suit premises cannot be divided in two parts and partial eviction will not fulfill the requirment of the plaintiff. As the parties adduced evidences regarding personal necessity also, the trial Court held that, defendant could not establish that both the sons of plaintiff are employed. The defendants have challenged the said findings by filing objection under. Order XLI, Rule 26 of the Code of Civil Procedure, vide LA. No. 1182 of 2005, Plaintiff supported the said findings by Cling a rejoinder to the said objection. 9. Mr. N.K. Prasad, learned Sr. counsel, in. support of this appeal, submitted that no decree of eviction could be passed by the learned lower appellate Court against the defendants after holding them (except defendant No. 1) trespassers, under the provisions of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (Building Act for short). In support of this, he relied on, 2000 (2) PLJR 62 , Lala Yadav v. Nathuni Yadav. In support of this, he relied on, 2000 (2) PLJR 62 , Lala Yadav v. Nathuni Yadav. He further submitted that relationship of landlord and tenant is sine qua non for passing a decree of eviction and relied on, 2000 (2) JLJR (SC) 890, Rajendra Tiwary v. Basudeo Prasad. He further submitted that the suit premises can be divided into two shops and in support of this he relied on, , Krishna Murari Prasad v. Mitar Singh. He further submitted that the evidences have not been properly considered by the- lower appellate Court. He lastly submitted that when findings on partial eviction was returned, it became part of the earlier findings and thus the trial Court could not have drawn a decree while returning the findings. 10. Mr. Shamim Akhtar, learned counsel appearing for the respondent submitted that lower appellate Court while examining the status of the defendants (except defendant No. 1) held that they were not partners of the tenant firm Dugar Brothers. In that context, the expression trespassers was used loosely. He further submitted that defendant cannot derive any advantage on the basis of such finding of lower appellate Court inasmuch as it was their own case that they were the partners of the said firm. He further submitted that it was nobodys case that the defendants were trespassers. It was further submitted that plaintiff treated defendant No. 1 as a tenant after death of her husband who was proprietor of the tenant firm Dugar Brothers. The defendants contended that Dugar Brothers was not a proprietorship firm and it was a partnership firm. As the other defendants claimed to be partners of Dugar Brothers, they were also impleaded as defendants for abundant caution. They are not claiming interest in the suit premises, independent from the firm, and thus they have admitted to be the tenants. Relying on , Panna Lal v. State of Bombay; , Giasi Ram v. Ramji Lal and K. Muthuswami Gounder v. N. Palaniappa Gounder, he submitted that in view of the provisions of Order XLI, Rule 33 of the Code of Civil Procedure, this Court has got power to pass any order/decree which ought in law to have been passed even though the respondents have not challenged the findings of the lower appellate Court-that the defendants were trespassers, and that this Court can set right the judgment of the lower appellate Court. He further submitted that the cases relied on by Mr. Prasad are clearly distinguishable in the facts and circumstances of the case. He submitted that in the case of Lala Yadav (supra), it was pleaded that defendant No. 1 had already left the so called tenanted premises and defendant No. 2 was in possession of the suit premises as a trespasser without consent of the plaintiff which is not the position here in this case. He further submitted that in the case of Rajendra Tiwary (supra), the defendants claimed ownership and in that context it was said that relationship of landlord and tenant is sine qua non for passing a decree of eviction but in this case the defendants admit that they are partners of the tenant-Firm Dugar Brothers. Regarding drawing up a decree by the trial Court while returning the finding on partial eviction, he submitted that it is merely an irregularity not affecting the merits of the case and, therefore, in view of provisions of Section 99 of the Code of Civil Procedure, the same can be ignored by this Court and that the appellant cannot derive any benefit out of this. He further submitted that in the case of Krishna Murari Prasad (supra), the Honble Supreme Court remanded the matter to examine the matter afresh as the shop in question was of big dimension i.e. 24 x 22 with a verandah attached to it measuring 6 x 22 but in the present case admittedly the front portion of the shop is only 15 wide. In these circumstances, he submitted that decree cannot be passed for petition of the suit premises. In support of this, he relied on 1985 PLJR 390 , Mrs. Veena Rani v. Mrs. Ishrati Amanullah. Lastly relying on , Kondiba Dagadu Kadam v. Savitribai Sopan Gujar;, Arumugham v. Sundarambal, he submitted that this Court while exercising powers under Section 100, CPC should not interfere with the judgment of first appellate Court as it has adverted to the reasons ascribed by the trial Court and has considered the evidences adduced by the parties and has given its own reasonings for decreeing the suit," and that it is not within the domain of this Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. 11. 11. After carefully considering the whole matter, this Court finds that the suit has to be decreed. Section 11 of the Building Act provides that a tenant shall not be liable to eviction except on specified grounds. One of the grounds provided in Section 11(1)(C) is that where the building is reasonably and in good faith required, (emphasis supplied) by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord. It is also provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only, the Court shall pass a decree accordingly fixing proportionate fair rent for such portion in occupation of the tenant Explanation II to Section 11 provides that where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenants shall not. allowed to question such preference. 12. The respondents are not claiming independent interest in the suit premises rather they are claiming to be partners of Dugar Brothers who was admittedly a tenant. In this view of the matter, there is no difficulty in holding that there was relationship of landlord and tenant between the parties. Moreover, the defendants were made parties in view of such claim and trial Court had rightly held that suit was not bad for non-rejoinder of the firm as party to the suit. 13. The learned lower appellate Court has rightly found that the plaintiff requires the shop in question reasonably and in good faith for occupation of her sons. When the matter was sent back to trial Court for returning finding on partial eviction, the defendants tried to prove that the sons of the plaintiff are engaged/involved in transport business. The plaintiff produced evidences to show that for non-payment of the installments one of the Trucks was taken back by the financier and other Truck belonged to some other person. It has been observed in the case of Mst. Bega Begum v. Abdul Ahad Khan, , that reasonable requirement postulates an element of need as opposed to a mere desire or wish. It has been observed in the case of Mst. Bega Begum v. Abdul Ahad Khan, , that reasonable requirement postulates an element of need as opposed to a mere desire or wish. The distinction between desire and need should be kept in mind but not so as to make even the genuine need as nothing but a desire. The term need or requirement should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant on the ground of reasonable requirement. 14. It is not necessary that for maintaining the suit of eviction on the ground of reasonable requirement, the sons of the plaintiff should have sat idle. The suits for eviction, even on the ground of personal necessity, takes years in disposal. In the present case it is about 19 years. The learned lower appellate Court has rightly found that defendants could not conclusively prove that sons of the plaintiff did not require the shop, reasonably and in good faith for their own occupation. The trial Court has also rightly returned the findings that even if the shop is partitioned; it will not substantially satisfy the requirement of the plaintiff. 15. The findings of the learned lower appellate Court that defendants were trespassers, was uncalled for and has to be ignored. Moreover, it is irrelevant for the purpose of deciding this case. Further, I find that by drawing up a decree while returning the findings, the merits of the case is not effected and at best it may be an irregularity. 16. The judgments relied on by Mr. Prasad are of no help to the appellants as has been noted in the preceding paragraphs. The frontage (width of the shop in question on road) is 15 wide and it is connected with a room on the back, by a door. The Division Bench of Patna High Court in the case of Mrs. Veena Rani v. Mrs. Prasad are of no help to the appellants as has been noted in the preceding paragraphs. The frontage (width of the shop in question on road) is 15 wide and it is connected with a room on the back, by a door. The Division Bench of Patna High Court in the case of Mrs. Veena Rani v. Mrs. Ishrati Amanullah, reported in 1985 PLJR 390 , held that the Court must be satisfied that the landlord and tenant both can conveniently occupy the premises as two units and the power cannot be used in a manner as if the Court has to partition the premises between two co-sharers. In my view, the landlord and the tenant both cannot conveniently occupy the shop. 17. Regarding the first question formulated at the time of admission by this Court, I find, on going through the materials on record, that the learned lower appellate Court has properly appreciated the evidences adduced by the defendants and the plaintiff, while reversing the findings of the trial Court. The second question does not arise in this appeal as the decree was not passed against trespassers. The defendants themselves claimed that they were the partners of the tenant-firm of Dugar Brother. In the result, this second appeal is dismissed and the suit is decreed with costs through out. The appellants are directed to vacate and hand over the suit premises to the respondent within two months from today.