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2006 DIGILAW 675 (JHR)

Prakash Keshri v. Hari Prasad Sah

2006-05-18

N.N.TIWARI

body2006
Order This civil revision has been preferred by the tenant-defendant under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act [hereinafter referred to as 'the said Act' against the judgment and decree dated 30.11.2005 passed by learned Sub-Judge-II, Deoghar ,in Title Eviction Suit No. 34/98 whereby the Court below has decreed the landlord-plaintiffs' suit for eviction on the ground of personal necessity. 2. The plaintiffs' case in brief s that they are the owner and the landlord of the suit premises which was let out to one Hridaya Narayan Sah and after the death the said tenant, the right of tenancy devolved upon the defendants who are the heirs and legal representatives of Hridaya Narayan Sah and they are now tenants on payment of monthly rent of Rs. 300/- per month. The plaintiff No.1 was in Government service who retired on 31.7.96 and has come to reside at Deoghar with his wife, mother and children. For want of accommodation the plaintiff is living with great difficulties in only one room on the first floor and one room on the second floor. His son is B.Sc (Hons.) and is in service in a private medical store at Sahibabad (U.P.) who wants to run his own business. Three sons of the younger brother of the plaintiff No. 1 are commerce graduates and they are also unemployed. There is only one shop under their occupation in which all cannot be accommodated. The suit premises is a suitable place to start business and the plaintiffs have also got sufficient fund for starting the• business. The mother of the plaintiff No. 1 is an old lady aged about more than 80 years and the wife of plaintiff No. 1 suffering from knee-joint pain and they are-not able to go upstairs and the portion of the suit premises at the ground floor is also required for their accommodation. The plaintiffs thus required' the suit premises reasonably and in good faith for their own use and occupation. 3. The defendants appeared and contested the suit by filing the written statement. It was stated, inter alia, that the plaintiff No. 2 is not dependant on the plaintiff No.1. The sons of late lal Babu Sah are not joint in mess, residence and business. The plaintiff No. 1 is not the guardian and Karta of the family or of his nephews. It was stated, inter alia, that the plaintiff No. 2 is not dependant on the plaintiff No.1. The sons of late lal Babu Sah are not joint in mess, residence and business. The plaintiff No. 1 is not the guardian and Karta of the family or of his nephews. The petitioner has got no concern with the family members of his younger brother who are separated after an amicable partition in the family. It was contended that there are two portions of Holding No. 404 which is in the occupation of the plaintiffs' nephews. The shop premises is double storied and is in their occupation. On the first floor they are running Peda shop and on the second floor they are running steel utensils shop. The plaintiffs' sons have their own business at Gaziabad and the plea of requirement of accommodation for their sons is malicious and baseless. The plaintiff No. 1 has retired from Government service and got. pensionary benefits and has been leading a happy life. The defendants thus denied the claim of personal bona fide need of the suit premises. 4. On the basis of the pleadings, several issues were framed by learned Trial Court. The parties adduced their evidences, oral and documentary. The plaintiffs examined altogether 14 witnesses and also brought on record several documents as Exts. 1, 2, 3, 4, 5 & 6 series. The defendants also examined 10 witnesses and exhibited some documents as Exts. A series & B series. Learned Trial Court thoroughly scrutinized and discussed the evidences on record one by one. Learned Court below after detailed discussion and consideration . of, the facts, evidences and materials on record has come to the finding that there is relationship of landlord and tenant between the parties and that the plaintiffs require the suit premises reasonably and in good faith. Learned Court below has further found that the partial eviction of the tenant shall not satisfy the need of the landlord-plaintiffs. Learned Court below decided all the issues in favour of the plaintiffs and decreed the suit directing the defendants to vacate the• suit premises. 5. Learned counsel for the petitioner, submitted that the impugned judgment and decree is vitiated due to non-consideration of the evidences in proper perspective. Learned Court below failed to make proper assessment of the evidences and materials on record in arriving at the conclusion against the defendant-petitioner. 5. Learned counsel for the petitioner, submitted that the impugned judgment and decree is vitiated due to non-consideration of the evidences in proper perspective. Learned Court below failed to make proper assessment of the evidences and materials on record in arriving at the conclusion against the defendant-petitioner. Learned counsel urged that the plaintiffs are already in occupation of sufficient accommodation and the claim of bona fide requirement is wholly baseless and malicious. The petitioner's son has got a shop at Gaziabad and his nephews are not dependant on him. They were separated long ago and the suit property was never held by the plaintiffs for their benefits. Learned counsel submitted that PW-5 Sanjay Kr. Gupta, who is the nephew of the plaintiff No.1, has proved that the son of the plaintiff No.1 is employed. The defendant witnesses DWs5, 6, 7 & 8 have proved that the wife of the plaintiff No. 1 is not suffering from any such ailment for whose the ground floor is required. Learned counsel submitted that the plea that the suit premises was also required for the accommodation of the plaintiffs' mother, is no longer available as the plaintiff No.2 died during the pendency of the suit and in her place other defendants, who are the family members and the nephews of the plaintiff No.1, have been substituted. It has been contended that the plaintiffs have got other alternative accommodations and the suit premises is not required by them. The suit has been filed with mala fide intention. He further contended that the issue of partial eviction has been casually decided by learned Court below holding that the plaintiffs' need shall not be satisfied by partial eviction of the tenant. The said ground alone is sufficient for setting aside the judgment and decree of learned Court below and for remitting the case for proper decision on the issue of partial eviction. 6. Mr. NK Pd., learned counsel appearing on behalf of the opposite parties, on the other hand, submitted that the impugned judgment and decree of learned Court below is well considered, sound and legal and there is no scope for interference by this Court in exercise of its revisional jurisdiction. 6. Mr. NK Pd., learned counsel appearing on behalf of the opposite parties, on the other hand, submitted that the impugned judgment and decree of learned Court below is well considered, sound and legal and there is no scope for interference by this Court in exercise of its revisional jurisdiction. Learned counsel submitted that the Court below has meticulously scrutinized all the evidences, oral and documentary, on record and has come to the finding that the landlord-plaintiffs require the suit premises genuinely and in good faith. The defendants have failed to bring on record any evidence to prove that there had been a partition in the family and there was sufficient accommodation to start business for the three unemployed nephews and the son of the plaintiff No.1. The defendants have also failed to prove that the son of the plaintiff No.1 has got his own business at Gaziabad rather it has come on record that in absence of any accommodation for running his own business the son of the plaintiff No.1 has been working in a private medical store and getting meagre amount as remuneration and the plaintiff No.1, who is a retired person, has to send money time to time for his proper maintenance. They also failed to prove that there is any suitable alternative accommodation for the use and occupation of the plaintiffs' family members. He submitted that even in case of availability of other accommodations, the plaintiff No. 1 has right to choose the accommodation which would be most suitable to satisfy his need. It has been submitted that there are cogent evidences on record to prove that the plaintiffs' requirement is bona fide and the same has been rightly considered in decreeing the suit by learned Court below and there is no illegality or error in the impugned judgment and decree and the revision application is wholly without any merit. 7. After hearing learned counsel for the parties and on perusal and scrutiny of the records including the evidences adduced by the parties, I find that the findings of learned Court below are based on thorough appraisal and consideration of the facts and evidences on record. On the point of personal necessity, the plaintiff has examined several 'plaintiffs' witnesses. PW-2 Raghubind Deb has stated that the shop in question situates amidst 100-150 shops and is suitable for any business. On the point of personal necessity, the plaintiff has examined several 'plaintiffs' witnesses. PW-2 Raghubind Deb has stated that the shop in question situates amidst 100-150 shops and is suitable for any business. PW-2A is the wife of the plaintiff No. 1 who has fully supported the plaintiffs' case. PW-3 Rajesh Kr. Gupta, PW-5 Sanjay Kr. Gupta and PW-6 Nirmal Kr. Gupta are the nephews of the plaintiff No. 1 and they have supported the plaintiffs' case. They have also deposed that there has been no partition in the joint family and the plaintiff No.1 is the Karta of the family. They have fully supported the plaintiffs' claim of need of the suit premises. PW-4, who is a retired teacher and is an independent witness, has also supported the plaintiffs' case and has stated that only one nephew is engaged in the business and others assist in the business as they have got no independent business. He has stated that there is no other alternative accommodation for running their own business and that the existing shop in occupation of the plaintiff is small one. He has also clearly spelt the names of all the nephews. There is nothing in the cross-examination to discredit him. The plaintiff No. 1 is the PW-8 who has also fully supported the case. PW-12 is the son of the plaintiff No. 1 who has stated that he is working in Gupta Medical Store, Sahibabad (U.P.) and he is married and he gets a meager amount and his father has to contribute for his proper maintenance. He has also stated that he wants to run his own business. Besides the above, the PW9 is the son-in-law of the plaintiff NO.1 who has deposed that his mother-in-law is ailing and has been undergoing treatment at Calcutta and Delhi. He has also proved the documents relating to her treatment, Ext. 2 series. PW-1 a and PW-11 have also proved several medical prescriptions and pathological reports which have been exhibited as Exts. 2 series and 3. The defendants have examined DWs-1, 2, 3 & 4 as formal witnesses. DWs-5, 6 & 7 have deposed that the wife of the plaintiff No. 1 is not ailing and she has been leading a normal life. DW-8 has further stated that the plaintiffs' family members can be accommodated in the shop which they are running in Shiv Ganga Lane. The defendants have examined DWs-1, 2, 3 & 4 as formal witnesses. DWs-5, 6 & 7 have deposed that the wife of the plaintiff No. 1 is not ailing and she has been leading a normal life. DW-8 has further stated that the plaintiffs' family members can be accommodated in the shop which they are running in Shiv Ganga Lane. DW-1 a has stated that the plaintiff No.1 was earlier in service of D.V.C. at Mathon and after his retirement he has come back and has been living in a portion of the suit premises and he has further stated that the son of the plaintiff No. 1 runs a medical shop at Sahibabad near DeihL The defendants have produced the rent receipts to prove that they are paying rent. Exts. A series and Exts. B series are the certified copies of the assessment register of the Municipality which stands in the name of the father of the plaintiff NO.1. Ext. B/4 goes to show that one shop is in the occupation of the plaintiffs. Learned Court below thoroughly considered the said oral and documentary evidences. On perusal of the documentary evidences adduced by the plaintiffs, particularly Exts. 2 series, which are the medical documents, it is evident that the wife of the plaintiff No. 1 has been undergoing treatment locally as also in Calcutta and at Indraprasth Apollo Hospital, Delhi It is evident from Exts. 2 series, 3 & 4 that the wife of the plaintiff No. 1 Nirmala Devi is suffering from various ailments. The Court below has concluded that the plaintiffs have been able to prove that it is difficult for his wife Nirmala Devi to use the stairs and live on upper floors. Learned Court below has further considered Exts. 5 series which are the money order receipts which were produced by the plaintiff NO.1 to show that he has to send money to his son from time to time to meet his expenses as he is unable to maintain himself and his family by the meager income he is earning from his employment in a private medical store. On due consideration of the said evidences, learned Court below has arrived at the finding that the plaintiffs have proved bona fide personal necessity for the suit premises. On due consideration of the said evidences, learned Court below has arrived at the finding that the plaintiffs have proved bona fide personal necessity for the suit premises. I myself perused the oral and documentary evidences and on proper appraisal thereof, I am in agreement with the finding of learned Trial Court that the plaintiffs have been able to prove that the suit premises is required by them for their personal use and occupation .reasonably and in good faith. 8. So far as the issue of partial eviction is concerned, learned Court below has also dealt with and considered the same thoroughly. It is an admitted case that the size of the suit premises is 14' x 18'. There is no pleading in the written statement that the defendants are running a shop in the suit premises or even smaller space can serve their purpose. The plaintiffs have pleaded that they require the suit premises to accommodate the son of the plaintiff No. 1 and his nephews in which they want to run a utensil shop. The plaintiffs by their evidence (PW-8 & PW-12) have further proved that the partial eviction shall not satisfy their need. Learned Court below has considered the said evidences and materials on record and has come to the finding that the partial eviction of the tenant-defendant shall not meet and satisfy the requirement of the plaintiffs. The said finding is based on consideration of evidences. I find no infirmity in the said finding. 9. In view of the above discussions and findings, I do not find any error or illegality in the impugned judgment and decree of the Court below. None of the grounds raised by the petitioner could be substantiated in this revision application. There is thus no merit in this civil revision application which is, accordingly, dismissed. However, there shall be no order as to cost.