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2007 DIGILAW 956 (PAT)

Most. Jagtarana Kuer v. Lalmuni Kuer

2007-05-16

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the appellant. 2. This appeal has been filed by the defendants-appellants against the judgment of affirmance passed by the lower appellate court. Originally Eviction Suit No. 03 of 1985 was filed by the plaintiff-respondents for eviction of the defendant-appellants on the ground of bona fide personal requirement of the plaintiff with respect to the suit premises and also on the ground of default in payment of rent by the defendants. 3. The said eviction suit was dismissed on 5.8.1988 and against the aforesaid judgment and decree of the trial court, the plaintiff filed Title Appeal No. 69 of 1988 which was allowed by the lower Appellate Court on 19.3.1992 setting aside judgment and decree of the trial court and remanding the matter to the trial court to take the evidence of Harihar Prasad Pandey if he was alive and if he was not alive then the entire matter on record was to be considered afresh before deciding the title suit. 4. Since the said Harihar Prasad Pandey had died the trial court again considered the entire matter in detail and found that admittedly suit property belonged to Ram Narayan Panda and the original defendant was his tenant but subsequently Harihar Prasad Pandey, as the power of attorney holder of Ram Narayan Panda executed registered sale deeds Ext. 2 and 2A dated 23.3.1996 in favour of the plaintiffs with respect to the suit premises, on payment of consideration amount and thereafter the defendants paid rent of the premises to the plaintiffs. The learned trial court also found that the handwriting experts had found that the signature of Ram Narayan Panda and Harihar Prasad Pandey were on the deeds in question hence he arrived at the finding that there was relation of landlord and tenant between the plaintiffs and the defendants and that the defendants were monthly tenants of the plaintiffs. Learned trial court also considered the matter of default in payment of rent and the personal necessity and after considering the evidence of the parties came to a conclusion that the defendant defaulted in payment of rent and the plaintiffs had bona fide personal requirement of the suit premises. Accordingly, Eviction Suit No. 3 of 1985 was decreed by the learned 1st Additional Munsif, Sasaram by judgment and decree dated 15.9.1995. 5. Accordingly, Eviction Suit No. 3 of 1985 was decreed by the learned 1st Additional Munsif, Sasaram by judgment and decree dated 15.9.1995. 5. The aforesaid judgment and decree of the trial court was challenged by the defendants-appellants in Title Appeal No. 99/30 of 1995/95. After full consideration of the pleadings of the parties, materials on record as well as the findings of the trial court, the aforesaid title appeal was dismissed by the learned 1st Additional District Judge, Rohtas by his judgment and decree dated 25.7.2005, which is under challenge in the instant second appeal. 6. The abovementioned impugned judgments and decree of the learned courts below with respect to default in payment of rent and personal necessity .are findings of facts fully supported by the evidence on record, which have been affirmed upto the final court of facts, hence this court finds no occasion for interfering with them in this second appeal, specially when no question of law, much less any substantial one, is involved therein. 7. It is true that the learned courts below have not considered the question of partial eviction while dealing with the issue of personal necessity. The question of partial eviction has become merely academic as the suit had been decreed on the composite ground of personal necessity and default in payment of rent. Furthermore no such plea was taken by the defendants-appellants either in their pleading or in their evidence before the learned trial court or even before the learned lower appellate court that the requirement of the plaintiffs-respondents would be satisfied by partial eviction of the defendants-appellants. Hence such plea cannot be allowed to be raised at this stage by the defendants-appellants as it is absolutely frivolous and merely to delay the final disposal of the matter which is pending for twenty two years. 8. It may be stated in this regard that the plea of partial eviction has to be raised by the defendant in his written statement and in his deposition in the eviction suit and that plea cannot be decided suo moto as has been held by this court in case of Food Corporation of India & Ors. vs. Vishun Properties and Enterprises & Ors. reported in BBCJ 711. vs. Vishun Properties and Enterprises & Ors. reported in BBCJ 711. Furthermore the onus squarely lies upon the defendant to show that partial eviction shall satisfy the personal necessity of the plaintiffs as has been held by this court in case of M/s Bata India Ltd. vs. Dr. Md. Quaruzzama reported in 1993(1) PLJR 87. When tenant himself is not agreeing to partial eviction, failure of court to consider it does not vitiate its judgment as has been held by this court in case of Om Prakash Sharma vs. Kishun Mistry reported in 1985 PLJR 727. However, where the tenant has not taken the plea of partial eviction in his pleading or evidence, the court may consider the same and record its finding regarding it, only in a case where the suit is filed for eviction only on the ground of personal necessity. 9. In any view of the matter the suit premises contains four rooms, a verandah and sahan which the plaintiffs require for the purpose of residence of the members of their family, out of whom nine are already on record as respondents. The said personal necessity of the plaintiffs-respondents has already been upheld. In the said circumstances since the requirement of the plaintiffs is for the entire family, partial eviction shall not serve the purpose of the plaintiff rather it would create many fresh problems. 10. In the facts and circumstances of this case, this second appeal is dismissed.