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2009 DIGILAW 1192 (JHR)

Shyam Lal Kedia v. Bimal Kumar Agarwal

2009-08-26

M.Y.EQBAL

body2009
JUDGMENT M. Y. Eqbal, J.This revision application under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 is directed against the judgment and decree dated 30th September, 2003 passed by Subordinate Judge-III, Dumka in Title Eviction Suit No.11 of 1999 whereby he has decreed the suit for eviction of the defendant from the suit premises on the ground of personal necessity. 2. The plaintiff-Opp. Party’s case as given in the plaint is that the double storied building comprised within Holding No.161 and 161/119 (old/new) Ward No.3/10 originally belonged to Sita Devi Saraf, wife of Banarasi Lal Saraf. The plaintiff alleged to have purchased half portion of the ground floor towards western side along with its upper portion of the entire building by a registered sale deed dated 24.4.1997. The other portion towards eastern side was purchased by one Rajesh Kumar Tekriwal on the same day from Sita Devi Saraf. The plaintiff said to have got his name mutated in the Zamindari Sirista of Dumka Anchal and also in the Dumka Municipality and paid rent and municipal taxes. The plaintiff’s further case is that the defendant , namely Shyam Lal Kedia, was a month-to-month tenant under original vendor Sita Devi Saraf occupying the ground floor of the building on monthly rent of Rs.325/-. After purchase, the plaintiff asked the defendant-petitioner to pay half of the rent, but he did not do so even after information given to him by the previous landlord Sita Devi Saraf. The plaintiff’s case is that he requires the suit premises reasonably and in good faith for his own use and occupation and for his family members. It is pleaded by the plaintiff that the purpose of purchase of the suit premises is for shifting his office and godown as the plaintiff is registered dealer of oxygen cylinder. 3. The defendant-petitioner contested the suit by filing written statement. The relationship of landlord and tenant has been denied and disputed by the defendant and he further pleaded that he was inducted as tenant of the entire ground floor of the building having six rooms and the entire upper portion of the building which is in occupation of Shyamal Tekriwal. The defendant’s further case is that the description of the suit premises given in the plaint is vague and self contradictory and also in conflict with the description given in the sale deed. The defendant’s further case is that the description of the suit premises given in the plaint is vague and self contradictory and also in conflict with the description given in the sale deed. The defendant further denied and disputed the personal necessity alleged by the plaintiff as the same is neither reasonable nor bona fide. 4. The trial Court framed the following seven issues for consideration: 1. Is the suit as framed maintainable? 2.Is the suit barred by law of limitation? 3.Has the plaintiff any cause of action for the suit? 4.Is there any relationship of landlord and tenant between the plaintiff and defendant? 5.Is the plaintiff reasonably and in good faith require the suit property for his personal necessity? 6.Is the plaintiff entitled to get a decree of eviction against the defendant? 7.To what other relief or reliefs the plaintiff is entitled? 5. So far issue No.4 is concerned, the trial Court recorded a finding that the description of the suit premises given in Schedule ‘A’ of the plaint is neither vague nor misleading, contradictory or in conflict with the sale deed. 6. On the issue of personal necessity (issue No.5), the trial Court came to a finding that the plaintiff requires the suit premises reasonably and in good faith for his use and occupation and for occupation of his family members. Consequently, the suit was decreed. 7. Mr. A.K. Sahani, learned counsel appearing for the petitioner, assailed the impugned judgment as being contrary to the facts and evidence on record and is perverse in law. The learned counsel submitted that the Court below has not even taken into consideration that even in eviction suit plaintiff is required to prove his prima facie title and to establish the relationship between landlord and tenant. Learned counsel then submitted that the Court below failed to take into consideration that the description given in the sale deed does not tally with the description of the suit premises given in the plaint and because of this vagueness, the suit was liable to be dismissed. 8. From perusal of the impugned judgment, it is evidently clear that the trial court has take into consideration the description given in the sale deed and the description of the suit premises given in the plaint. 8. From perusal of the impugned judgment, it is evidently clear that the trial court has take into consideration the description given in the sale deed and the description of the suit premises given in the plaint. It was categorically noticed that in the plaint there is specific mention about the description of the property by giving its boundary as mentioned in the sale deed which identify the suit premises. The area with boundary, plot no., holding no., etc have also been specifically mentioned in it. The description of the suit property has also been fully supported by the witnesses examined by the plaintiff. On the issue of personal necessity, the Court below has also considered the evidence adduced by the parties and recorded the finding with regard to personal necessity of the plaintiff. However, the finding with regard to partial eviction was not given in the impugned judgment. 9. The Civil Revision was taken up for hearing on 6.1.2004 and a Bench of this Court after taking notice of the fact that there was no finding on the issue of partial eviction, directed the Court below to hear the parties and to accept further evidence and record a finding on the question of personal necessity. In compliance of the aforesaid order, the Court below further recorded finding on the issue of partial eviction after giving opportunity of hearing to the parties. On the issue of partial eviction, the Court below recalled and examined the witnesses on behalf of the plaintiff and the defendant. The Court below found that the suit premises consist of only one kitchen and two small bathrooms in the northern side and therefore by dividing the suit premises and giving it to the defendant as suggested by him, the requirement of the plaintiff will not be fulfilled as because after that the suit premises will be useless for any purpose. The Court further found that the suit premises is only 16 ft width in front and 70 ft long. If it is partitioned, only 8 ft width in the front will be left. Hence, the very object of the eviction of the defendant for starting business by the plaintiff will be frustrated. 10. Having regard to the facts and evidence discussed above, I do not find any perversity in the impugned judgment. If it is partitioned, only 8 ft width in the front will be left. Hence, the very object of the eviction of the defendant for starting business by the plaintiff will be frustrated. 10. Having regard to the facts and evidence discussed above, I do not find any perversity in the impugned judgment. In my opinion, the impugned judgment passed by the Court below is in accordance with law. 11. For the reasons aforesaid, I do not find any merit in this civil revision which is, accordingly, dismissed.