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2009 DIGILAW 1218 (PAT)

Faiyaz Ahmad v. Amir Ahmad

2009-09-10

S.N.HUSSAIN

body2009
JUDGEMENT S.N.HUSSAIN, J. 1. This civil revision has been filed by defendants-petitioners under the Proviso to sub-section (8) of Section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as the Act for the sake of brevity) challenging order of their eviction passed by the learned Civil Judge, Junior Division-I, Siwan, vide judgment dated 18.2.2009 by which Eviction Suit No. 08 of 2006 filed by the sole plaintiff-opposite party was decreed. 2. The aforesaid suit was filed by the sole plaintiff-opposite party for eviction of the defendants-petitioners from a shop room measuring 243" x 10 situated in Mohalla- Naya Bazar in the town of Siwan. The plaintiff claimed that he was the owner of the suit property and earlier the father of the defendants were his tenants in the said shop room and now after his death the defendants are his tenants at the rent of Rs. 700 per months. It was also claimed by the plaintiff that his son was sitting idle and he wanted to start his own business in the said shop room and hence he has got bona fide personal requirement of the suit premises. 3. In the said suit, the defendants appeared and two sets of written statements were filed; the first was filed by defendants no. 1 to 4 (petitioners no. 1 to 4) denying the relationship of landlord and tenant between the parties as well as the personal necessity of the plaintiff, whereas the other was filed by defendant no. 5 (petitioner no. 5) claiming that the plaintiff had neither any right, title and interest in the suit premises, nor the defendants were even his tenant, rather they were in possession of the suit properties in their own right. 4. On the basis of the respective pleadings of the parties, the learned court below framed the following issues for deciding the suit:- (i) Whether the suit as filed is maintainable? (ii) Whether the plaintiff has got any cause of action? (iii) Whether there is relationship of landlord and tenant between the parties? (iv) Whether the plaintiff has got personal necessity of the suit premises? (v) Whether the plaintiff is entitled to get an order relating to defendants eviction? (vi) Whether the plaintiff is entitled to any other relief? 5. (ii) Whether the plaintiff has got any cause of action? (iii) Whether there is relationship of landlord and tenant between the parties? (iv) Whether the plaintiff has got personal necessity of the suit premises? (v) Whether the plaintiff is entitled to get an order relating to defendants eviction? (vi) Whether the plaintiff is entitled to any other relief? 5. On the aforesaid issues, evidence were led by the parties in which five witnesses deposed on behalf of the plaintiff, out of whom P.W. 4 was the plaintiff himself and P.W. 1 was a formal witness and the other P.Ws., who were shopkeepers and neighbours, supported the plaintiffs claim of person necessity. Apart from the oral evidence, the plaintiff also produced several documents such as vakalatnama (Ext.-1), notice (Annexure-2), signature on the document (Ext.-3), endorsement of receipts on mortgage deed (Exts.-4 to 4/B), certified copy of the decree (Ext.-5), certified copies of the witnesses (Exts.6 to 6/A), certified copy of the order (Ext.-7), the original mortgage deeds (Exts.-8-8/B). 6. On the other hand, no evidence either oral or documentary was adduced on behalf of defendants no. 1 to 4 (petitioners no. 1 to 4) with respect to their written statement. However, on behalf of defendant no. 5 (petitioner no. 5) with regard to his written statement, six witnesses were produced by him out of whom D.W. 1 was defendant no. 5 himself and D.W. 6 was a formal witness, whereas D.Ws. 2 and 3, who were mother and neighbour of the defendants did not deny the plaintiffs claim of personal necessity, whereas only D.Ws. 4 and 5 who were mere acquaintance and advocate clerk denied the plaintiffs claim of personal necessity. Apart from the said witnesses, defendant no. 5 produced two documents, namely the plaintiff (Ext.-A) and the written statement (Ext.-B) of Title Suit No. 132 of 2004. It may be noted in this connection that nothing in the aforesaid evidence showed that the son of the plaintiff was employed or was doing business elsewhere and it was only claimed that the plaintiff was doing business at some other place and had a house also. 7. Considering the pleadings and evidence of the parties, the learned Civil Judge, Junior Division (II) decreed Eviction Suit No. 8 of 2006 by its impugned judgment dated 18.2.2009 after arriving at the following findings: (a) The defendants are joint. 7. Considering the pleadings and evidence of the parties, the learned Civil Judge, Junior Division (II) decreed Eviction Suit No. 8 of 2006 by its impugned judgment dated 18.2.2009 after arriving at the following findings: (a) The defendants are joint. (b) The defendants failed to prove by oral or documentary evidence that they were Rehandar of the suit shop. (c) The plaintiff has proved relationship of landlord and tenant between the parties. (d) The plaintiff is incidentally found the owner of the suit shop. (e) Defendant No. 1 did not produce any evidence in support of his pleadings. (f) The defendant has claimed in his written statement that partial eviction of the suit shop was not possible. (g) The plaintiff has personal necessity of the suit shop as his son wants to start business therein. (h) The suit is maintainable, the plaintiff has cause of action and is entitled to the reliefs claimed. 8. Against the aforesaid judgment of the learned court below, all the defendants, including defendants no. 1 to 4 and defendant no. 5, have filed the instant civil revision jointly challenging all the findings of that court Hence, the following points are to be considered in the instant case:- (i) Whether the defendants are in possession of the suit premises on the basis of their own right and title? (ii) Whether there is relationship of landlord and tenant between the parties? (iii) Whether the plaintiff has got personal requirement of the entire suit premises? (iv) Whether the plaintiff is entitled to get the defendants evicted? 9. So far points no. (i) and (ii) are concerned, learned counsel for the defendants-petitioners argued that although originally the plaintiff was the owner of the suit premises and the father of the defendants was his tenant, but on 22.7.1973 (Ext.-8/A), the suit shop was mortgaged by plaintiff and his mother with the father and uncle of the defendants and during the pendency of the said mortgage, one Shamshul Hoda fraudulently got another mortgage deed executed by the plaintiff on 12.8.1974 (Ext.- 8) with respect to the same premises in his favour and, also somehow managed possession of the defendants mortgage deed dated 22.7.1973 (Edt.-8A) and managed to forge sign the father of the defendants incorporating redemption of mortgage dated 22.7.1973 (Ext.-8/A) after receiving money on 7.12.1976. 10. 10. Learned counsel for the defendants-petitioners also claimed that the plaintiff filed Title Suit No. 132 of 2004 against Shamshul Hoda for redemption of mortgage dated 12.8.1974 in which the defendants were impleaded as parties, but subsequently their names were deleted and finally the suit was decreed on compromise on 3.5.2006, whereafter the plaintiff paid the mortgage amount of Shamshul Hoda and the mortgage was redeemed. Hence, learned counsel for the defendants-petitioners claimed that the mortgage of 22.7.1973 (Ext.-8/A) by the plaintiff in favour of father and uncle of petitioners was never redeemed and hence the mortgage obtained by Shamshul Hoda on 12.8.1974 (Ext.-8) from the plaintiff during the pendency of the earlier mortgage was absolutely illegal and fraudulent and furthermore the redemption of mortgage incorporated in the mortgage deed dated 22.7.1973 was on the basis of a forged signature of the father of the defendants and hence the plaintiff was neither the owner nor the landlord of the suit premises and that the defendants were in possession not as a tenant, rather on the basis of their mortgage deed which was never redeemed. 11. In the aforesaid facts and circumstances, it was quite apparent that the defendants are not claiming any title over the suit premises, rather their claim is merely on the basis of a mortgage deed dated 22.7.1973 (Ext.-8/A) with respect to the suit premises executed by the plaintiff and his mother in favour of the father and uncle of the petitioners. The said mortgage deed dated 22.7.1973 has been produced by the plaintiff as Ext.-8/A and its redemption by the mortgagee, namely the father of the defendants is incorporated on 7.12.1976 after receiving mortgage amount which is marked as Ext.-4/A. Furthermore the said shop was again mortgaged by the plaintiff in favour of one Shamshul Hoda vide mortgage deed dated 12.8.1974 (Ext.-8) which was redeemed on 2.5.2006 (Ext.-4/A) by the said Shamshul Hoda, whereafter Title Suit No. 132 of 2004 filed by the plaintiff against the said Shamshul Hoda for redemption of the said mortgage was decreed on compromise vide order dated 3.5.2006. During all these years, the defendants or their father never raised any objection before any authority, nor ever claimed that the signature of their father on the said deed redeeming the mortgage was forged. During all these years, the defendants or their father never raised any objection before any authority, nor ever claimed that the signature of their father on the said deed redeeming the mortgage was forged. Furthermore, no document at all has been produced by the defendants to support their aforesaid claim, whereas they admitted that after the mortgage in favour of Shamshul Hoda, the defendants paid rent to him and after redemption of the said mortgage they paid rent to the plaintiff at the rate of Rs. 700 per month. In the said circumstances, it is quite apparent that the entire claim of the defendants-petitioners claiming their own right and title over the suit premises is absolutely baseless. In such suits title of the parties are not decided, but for the purposes of this suit the plaintiffs incidentally found and held to be the owner of the suit premises on the basis of the evidence of the parties. 12. In view of the admission of the defendants that earlier before mortgage of 1973 their father was tenant of the plaintiff and that after the mortgage in favour of Shamshul Hoda, they paid rent to Shamshul Hoda and after redemption of mortgage of Shamshul Hoda, the rent was paid by the defendants to the plaintiff, it is quite apparent that there is relationship of landlord and tenant between the parties and the plea raised by the defendants was absolutely false and frivolous. 13. So far points no. (iii) and (iv) are concerned, the plaintiff in paragraphs 6 and 11 of his plaint had specifically pleaded that he has personal necessity for the entire suit premises which was required by him for doing his own business with his son. This pleading is supported by the plaintiff in paragraphs 11, 13 and 14 of his deposition as P.W. 4 in which he had stated that he was tenant in another shop and was doing business, but his landlord has got him evicted and hence he has no place at all for doing his business and was sitting idle, whereafter he is in dire need of the suit premises for starting the business of furniture etc. with his son, This claim is also supported by P.Ws. 2 and 3 who were his neighbour and other shopkeepers. 14. On the other hand, although defendants no. with his son, This claim is also supported by P.Ws. 2 and 3 who were his neighbour and other shopkeepers. 14. On the other hand, although defendants no. 1 to 4 in their written statement denied the claim of personal necessity of the plaintiff, but defendants no. 1 to A neither themselves deposed in the suit, nor produced any evidence either oral or documentary to prove their pleadings. In the said circumstances, the unproved pleadings of defendants no. 1 to 4 in their written statement cannot be relied upon. 15. Defendant No. 5 filed his separate written statement in which the only stress in all the paragraphs of the written statement was that the plaintiff had no right or title over the suit property and that the defendants are in possession of the same in their own right and title on the basis of the mortgage deed discussed above and merely at one place in paragraph 31 he had claimed as a general passing reference of denial of all the pleadings in the plaint that there is no relationship of landlord and tenant between the parties, but no specific denial was made by him wiih regard to plaintiffs claim of personal necessity. Defendant No. 5 in his depositions as D.W. 1 had also laid stress only on his right and title on the basis of mortgage deed and denied right and title of the plaintiff and the relationship of landlord and tenant between the parties and merely at the fag end of his cross-examination while retorting to the question asked on behalf of the plaintiff made a vague and general statement denying that neither the plaintiff had any furniture, racks, counter prepared for the shop, nor the defendants have ever agreed to vacate the suit premises, nor the defendants are defaulters, nor the plaintiff had personal necessity, nor there is any amount due. However, no specific statement with regard to personal necessity has been made by defendant no. 5. In the said circumstances and in complete absence of any pleadings of defendant no. 5 in his separate written statement, the denial of personal necessity by D.Ws. 4 and 5, who were merely acquaintance and Advocate Clerk, cannot be legally relied upon, especially when the mother of the defendants, who deposed as D.W. 2 did not at ail deny in her deposition the plaintiffs claim of his personal necessity. 16. 5 in his separate written statement, the denial of personal necessity by D.Ws. 4 and 5, who were merely acquaintance and Advocate Clerk, cannot be legally relied upon, especially when the mother of the defendants, who deposed as D.W. 2 did not at ail deny in her deposition the plaintiffs claim of his personal necessity. 16. The law is well settled in this regard that where a defendant denies the fact in the plaint, he must be specific and if he does not deny specifically or by necessary implication, it shall be taken to be admitted. Reference in this regard may be made to the provision of Order Vlll Rule 4 of the Code of Civil Procedure as well as a decision of the Honble Apex Court in case of Badat and Co., Bombay Vs. East India Trading Co., reported in AIR 1964 Supreme Court 538 (paragraph 11), Hence, there being no specific denial in the written statement of defendant no. 5, his deposition in that regard cannot be relied upon. As regards defendants no. 1 to 4, their written statement cannot be considered as it was not proved by any evidence whatsoever adduced by them in view of series of decisions in that regard starting from the case of Sardar Gurbaksha Singh Vs. Gurdial Singh, reported in A.l.R. 1927 PC 230 and the case of Vidhyadhar Vs. Mankikrao and Another, reported in A.l.R. 1999 Supreme Court 144 (paragraphs 15 and 16). 17. Although, learned court below in paragraph 21 of the impugned judgment has given specific finding of personal necessity of the plaintiff, but the revisional court under the proviso to sub-section (8) of Section 14 of the Act can look into the question of personal necessity after appraising evidence even if it was not considered by the trial court. Reference in this regard may be made to a decision of this court in case of Bhola Prasad Vs. Kashi Kant Jha and Others, reported in 2002(4) PLJR 39 (Paragraph 6). 18. In the instant case, there is only bald statement of the two witnesses of the defendants, namely defendants no. Reference in this regard may be made to a decision of this court in case of Bhola Prasad Vs. Kashi Kant Jha and Others, reported in 2002(4) PLJR 39 (Paragraph 6). 18. In the instant case, there is only bald statement of the two witnesses of the defendants, namely defendants no. 4 and 5, denying the personal necessity of the plaintiff, but the plaintiff has proved his bona fide requirement by his oral and documentary evidence, especially, Ext-7, which is the order-sheets of Execution Case No. 25 of 1996 which shows that the plaintiff was tenant of another shop doing business from which his landlord has got him evicted and hence he had no place at all for doing business. However, the defendant has laid much stress on the statement of P.W. 2 in paragraph 8 that plaintiff has another house with several rooms, but learned counsel for plaintiff-opposite party has specifically stated that the said evidence itself shows that the rooms were not the shops, rather they were rooms of residential house meant for the residence of the family of the plaintiff. Learned counsel for the plaintiff specifically offered that if the defendants want the plaintiff can give one of the rooms in the said house to the defendants, but learned counsel for the defendants refused. This clearly, shows the falsity of the claim of the defendants and genuineness of the requirement of the plaintiff. In the said circumstances, it is quite apparent that the eviction of the defendants is not merely a desire of the plaintiff, rather his claim is on the basis of his bona fide personal requirement hich he has been able to plead and prove by valid evidence. 19. So far the question of partial eviction is concerned, admittedly the area of the suit premises is less than 250 sq. ft. and its opening on the road is about 10 ft. Furthermore the plaintiff wants to open a shop of wooden furniture and for that purpose he has to keep samples of various wooden furnitures, counter and racks etc. for which the area of the suit premises was barely sufficient and hence partial eviction of the defendant from the suit premises would definitely not serve the purpose of the plaintiff. Furthermore the plaintiff wants to open a shop of wooden furniture and for that purpose he has to keep samples of various wooden furnitures, counter and racks etc. for which the area of the suit premises was barely sufficient and hence partial eviction of the defendant from the suit premises would definitely not serve the purpose of the plaintiff. Thus, it is quite apparent that the plaintiff was legally entitled for a decree of the eviction of the defendants as he had bona fide personal requirement of the entire suit premises. 20. In the aforesaid facts and circumstances and on the basis of the aforesaid findings, the claims of the petitioners are devoid of any merit and, accordingly, this civil revision is dismissed. However, there shall be no order as to cost.