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2011 DIGILAW 307 (JHR)

Alpana Choudhary v. Alok Kumar Banerjee

2011-04-04

POONAM SRIVASTAV

body2011
Order Poonam Srivastav, J.-The instant revision arises from the Judgment and Decree of eviction dated 16.11.2009, passed by the Sub-Judge 1st, Dhanbad in Title (Eviction) Suit No. 45 of 1999 [Alok Kumar Banerjee vs. Alpana Chaudhary]. 2. The Suit was instituted on two grounds-arrears of rent amounting to Rs. 2,400/- and on the ground of personal necessity under section 11(1)(c) of B.B.C. Act. The plaintiff waived the claim' for eviction on the ground of arrears of rent but contested the suit on the ground of personal necessity. The Court below decreed the suit coming to a conclusion that the disputed premises detailed at Schedule-B of the plaint which is a part and parcel of Schedule-A, was required for the personal use of the plaintiff and landlord. 3. The facts of the case is that the property described in Schedule-A of the plaint, situated in Mohalla J.C. Mallik Road was a joint family property of one Dr. Samarendra Nath Chaudhary and his other co-sharers including the husband of the defendant. There was a partition in the family of Dr. Samarendra Nath Choudhary and other co-sharers of the property described in Schedule-A. Dr. Samarendra Nath Choudhary inherited the property and came in exclusive possession of the same' after the death of his father. In course of time, property described in Schedule-A was let out to the tenant namely Deb Shankar Dev alias Gonu and also to the defendant by Samarendra Nath Chaudhary. The defendant was inducted as a tenant which is a part of Schedule-A property. He started running a medical shop and paying Rs. 300/- as monthly rent payable in the succeeding month according to the English calender. The plaintiff entered into an agreement for sale with Dr. Samarendra Nath Chaudhary on 24.5.1993 and constructive possession was also delivered to the plaintiff as he' paid major part of the consideration money. Subsequent thereto, the defendant started making payment of rent to the plaintiff on an• assurance that he will vacate the Schedule-B property in due course. Finally, a Sale Deed was executed by Dr. Samarendra Nath Chaudhary on 28.5.1999 in favour of plaintiff with regard to Schedule-A premises. The information about the Sale Deed was also given to the defendant by the vendor .himself. The other tenant-Deb Shankar Dev alias Gonu vacated the premises. Finally, a Sale Deed was executed by Dr. Samarendra Nath Chaudhary on 28.5.1999 in favour of plaintiff with regard to Schedule-A premises. The information about the Sale Deed was also given to the defendant by the vendor .himself. The other tenant-Deb Shankar Dev alias Gonu vacated the premises. However, the defendant refused to vacate the premises on request of the plaintiff in the year 1998 a.nd stopped making payment of rent w.e.f. December, 1998. 4. The plaintiff is a practising lawyer at Dhanbad and he has- ancestral house at Jharia Pahari, Katras More, Jharia, District-Dhanbad. This place is situated at a distance of 8 Kms. from Dhanbad Court. The plaintiff 'comes to the Court after travelling a distance of 8 Kms. from Jharia. Besides, he is facing shortage of accommodation since his family is enlarged and the ancestral house is not sufficient to fulfil their requirements. It was in these circumstances, the house was purchased from Dr. Samarendra Nath Chaudhary. It was also averred in the plaint that the ancestral house at Jharia is old and considerably damaged besides due to mining operations of M/s. B.C.C.L, a number of cracks" appeared on the building at the relevant time when the suit was instituted. The ground of ailment of plaintiff's mother due to heart and asthama, was also raised but during the continuation of the proceedings, she died. The plaintiff further asserted that the premises vacated by Deb Shankar Dev alias Gonu consisted of only two small rooms which was insufficient for the plaintiff to establish his Chamber and also shortage of residential requirement for his family, therefore his need was genuine for the disputed premises which was in occupation of the defendant. 5. The defendant filed his written statement and denied the title of the plaintiff and also applicability of the Bihar Building (Lease, Rent and Eviction) Control Act. The defendant further claimed that the property was a joint ancestral property of the husband of the defendant and his other co-sharers and it has never been partitioned and, therefore, the plaintiffs claim is without any basis as well as the Sale Deed in favour of the plaintiff is a fabricated document and gives them no right or title.' - 6. The fact of payment of Rs.300/per month is admitted in paragraph-38 of the written statement but it is clarified by the defendant that the sum of Rs.300/-was being paid per month as an extra precaution on advise of legal practitioner and, therefore, the said amount was remitted to the plaintiff month-to-month. 7. A number of issues were framed by the Court below. Issue Nos. 4, 5 and 6 are relevant for the purposes of the present case which are enumerated below: Issue No. IV Whether there is a relationship of landlord and tenant between the plaintiff and defendant with respect of Schedule B premises? Issue No. V Whether the plaintiff is in bonafide and reasonable need of Scheduled premises for his own use and occupation? Issue No. VI Whether the partial eviction of the defendant will substantially satisfy the bonafide need of the plaintiff? Evidence was adduced by both the parties which is detailed in the judgment itself. 8. The Court below recorded its findings in favour of the plaintiff and decreed the suit directing the defendant to vacate the suit premises within three months from the date of the order failing which the plaintiff will be at liberty to get possession of the Schedule-B property through the process of the Court. 9. Shri P.R. Bhagat, Advocate appearing on behalf of the tenant revisionist has made three submissions. The first submission is regarding existence of relationship of landlord and tenant. The relationship is specifically denied. •His next argument is challenge of release of accommodation in favour of the plaintiff opposite party on the ground of personal need. The contention of the revisionist is that the plaintiff is residing in his ancestral home at Jharia and his need is neither genuine nor bonafide and therefore findings of the Court below is liable to be set at naught. The last submission is that the appraisal of evidence is erroneous and illegal and requires a thorough scrutiny. He has cited extracts of oral evidence vis-a-vis the documentary evidence to substantiate his argument that the plaintiff has completely failed to demonstrate that the disputed property was required for his own use. 10. Counsel for the revisionist has placed the entire evidence from the lower court record, read out the plaint and emphasised paras-14, 16, 17, 18, 19 and 20 of the plaint. He has further commented on the evidence of P.Ws.. 10. Counsel for the revisionist has placed the entire evidence from the lower court record, read out the plaint and emphasised paras-14, 16, 17, 18, 19 and 20 of the plaint. He has further commented on the evidence of P.Ws.. P.W. 1 is the clerk of Advocate who has identified the signature of the phaintiff and admitted that since he is the Clerk, he is well conversant with the signature of the plaintiff. Though in cross-examination he has stated that the plaint was not signed in his presence. The objection of the learned counsel is that since the signature on the carbon copy was allowed to be placed as Ext.-1, which is in violation of the provisions of Section 63(2) of the Evidence Act and liable to be ignored. The testimony of P.W. 2-Ashok Kumar Banerjee, elder brother of the plaintiff has been elucidated by the learned counsel. Paragraph-4 of the chief-examination where he admits that the plaintiff has purchased the disputed house for his personal use and thereafter, pointed' out in the cross-examination various statements where an admission has been made by P.W. 2 that the plaintiff is practising in Dhanbad Court since 1975. He has three sisters who are married. The entire family including both brothers, mother, father and three sisters were living at Jharia in the ancestral house since the time of his father. No accommodation is in use as an Advocate's Chamber in the disputed premises. However, it has been admitted that his clients come and go from the portion of the disputed house which was got vacated by another tenant. The plaintiff has one son studying in Class-XI. The ancestral house at Jharia is situated in a populated area. No document is available in his knowledge regarding the Central Government's intention to get the house vacated. Therefore, paragraph-48 of the cross-examination has been specifically pointed out that the witness was not able to produce any document to the said effect. Similarly, the evidence of P.W.-3Parmeshwar Lal Burnwal was also placed. He has also admitted that the plaintiff is practising since the year 1974 and there are 100-150 house situated in the nearby locality of ancestral house at Jharia and house of P.W. 3 is also situated at a distance of 1/2 Kms. Similarly, the evidence of P.W.-3Parmeshwar Lal Burnwal was also placed. He has also admitted that the plaintiff is practising since the year 1974 and there are 100-150 house situated in the nearby locality of ancestral house at Jharia and house of P.W. 3 is also situated at a distance of 1/2 Kms. P.W. 4 Samrendra Nath Choudhary has proved the Sale Deed and also the letter which he has sent to the defendant/tenant (revisionist) informing him that the house has been purchased by the plaintiff. Certain extracts of the cross-examination has also been placed which is only repetition of what is stated by other witnesses. Shekhar Sharma, Advocate and Alok Kumar Banerjee was also examined as plaintiff witness. He has proved the coupons and the corresponding receipts through which the revisionist tendered Rs.300/- per month. He has also admitted that in the Sale Deed he has not stated that the house is being purchased for personal use. Further, the plaintiff stated that he has started practising from his Jharia house and also that two small rooms and Varanda and courtyard, kitchen, latrine and bath is vacant in the disputed premises but insufficient to shift his entire establishment to Dhanbad. These evidence have been pointed out to substantiate that the need of the plaintiff set up in the case has no legs to stand and that he does not require the disputed house for his own use for Chamber and residential purposes. 11. In the facts and circumstances, it is fully substantiated that the findings recorded by the Court below that there exists a landlord-tenant relationship and the revisionist use to give rent of Rs. 300/per month is absolutely correct and does not call for any interference. Certain part of the oral testimony of the witnesses, as pointed out of the learned counsel is an uncalled for exercise because I am conscious of the fact that the jurisdiction of a Civil Revision cannot be exercised as if a regular First Appeal is being decided. No doubt in a Rent Control Act, the scope of revisional power is not as narrow as a regular revision under the Code of Civil Procedure but still the complete reappraisal of evidence is not permitted and this Court cannot convert itself into a Court of appeal. 12. No doubt in a Rent Control Act, the scope of revisional power is not as narrow as a regular revision under the Code of Civil Procedure but still the complete reappraisal of evidence is not permitted and this Court cannot convert itself into a Court of appeal. 12. The next question is regarding bonafide need of the plaintiff which is held in his favour by the Court below. After going through the entire evidence, arguments and record of the case. It is evident that the total area of the said premises is 20' x 8'. The petitioner is aged about 65 years. He started his practice from his ancestral house at Jharia, which is situated at some distance. He has been facing great hardship in attending the Court from Dhanbad. Even if the assertions made on behalf of the tenant is accepted that Jharia is a thickly populated area, even then the fact is not disputed that the plaintiff is practising at Dhanbad since 1974 and by the lapse of time, he must have obviously built a good practice. Besides, he is aged 65 years and travelling from Jharia to Dhanbad from morning tin night, cannot- be said to be very safe and a comfortable proposition. It is also argued that the small rooms in his possession is being used by the client and if he gets the vacant, possession of the disputed accommodation, he wants to, shift his family at Dhanbad and the submission that in case he gets vacant possession of the disputed accommodation, he will like to shift along with his family members to 'Dhanbad and also maintain his Chambers at one place can not be brushed aside. This issue was considered at length by the Trial Court and, therefore, I do not find any reason to interfere. 13. I am also in agreement with the arguments advanced by the defendant's counsel to the effect regarding Ext.-3 to 3/d. Money order coupons and acknowledgement receipts are proved by , DW-3 (Arup Choudhary)-husband of the defendant in para-59 of cross-examination. These exhibits are "on admission" and as held in AIR 1960 SC 100 , admission is the best evidence. It is not permissible for the defendant to challenge it on one or another pretext. Moreover, the genuineness of these exhibits has also not been raised at the trial stage. These exhibits are "on admission" and as held in AIR 1960 SC 100 , admission is the best evidence. It is not permissible for the defendant to challenge it on one or another pretext. Moreover, the genuineness of these exhibits has also not been raised at the trial stage. Though several adjournments have been taken on behalf of the defendant petitioner in course of trial on the ground that he had to challenge one or other orders passed at interlocutory stage but no revision has been filed before this Hon'ble Court by the defendant/ tenant. This fact is evident from the lower court records. 14. He has also stated that the documents such as Money Order Coupons of rent for June, 1999, July 1999 and August 1 999-Exts. A/1, Band C respectively are not admissible as public document and the Court has wrongly placed reliance on the said Coupon since it was not proved. 15. The respondent counsel Sudarshan Shrivastava has disputed the arguments of Shri P.R. Bhagat. He has laid emphasis on the assertion in the written statement and placed paragraph 38 in support of his arguments that payment of As. 300/- per month is admitted by the defendant-revisionist. He has though-tried to evade and escape from an unequivocal admission in his written statement that As.300/- per month was paid as rent but he has tried to give' a feeble explanation that it was given on legal advise of his counsel. Besides, the learned counsel has pointed out that the Money Order Coupon have been admitted by the defendant in his oral testimony. He has stated the writing on the coupon is his own handwriting but at the bottom, the name of his wife is shown. In fact defendant admitted that the Coupons have been filled by DW-3Arup Choudhary, husband of the defendant. He has admitted in paragraph-59 of his oral testimony and the documents were 'marked as Exts. on his, own admission in the Court. The corresponding receipts have also been admitted which are admittedly public documents. 16. In the circumstances, I am not inclined to interfere., Revisional jurisdiction of the High Court is very limited and can not be equated with appellate jurisdiction. The findings of fact like relationship of landlord and tenant and bonafide and reasonable requirement may not be interfered unless it is perverse. 16. In the circumstances, I am not inclined to interfere., Revisional jurisdiction of the High Court is very limited and can not be equated with appellate jurisdiction. The findings of fact like relationship of landlord and tenant and bonafide and reasonable requirement may not be interfered unless it is perverse. In the present case, no perversity has been pointed out by the petitioner. Moreover, the trial court has dealt with each evidence and all findings are based on materials available on record. This has also been held in the case of Akhileshwar Kumar and Others vs. Mustaqim and Others reported in (2003)1 SCC 462 [ : 2003(1) JLJR (SC)269]. 17. I have given a careful consideration to the arguments of the respective counsel and. also gone through the entire record including the oral evidence adduced on behalf of the contesting parties. The first question that is to be examined is whether the Judgment of the Court below regarding relationship of landlord-tenant calls for an interference or not? 18. Issue No. IV relates to this question and '" am of the considered view that the admission in the written statement that Rs.300/- per month was given to the plaintiff month to month and the three Money Order Coupons with their corresponding receipts for the month of June-July and August are sufficient to establish that the defendant paid Rs.300/- per month and the recital on the Money Order Coupons is quoted in the Judgment itself. 19. On bare perusal of the said document, it is evident that DW-3-husband of the defendant has clearly written on the coupons that the amount is being tendered towards rent for a particular month and the writing has been accepted by the witness. Besides the witness has not denied the receipts regarding the payment of rent from month to month and, therefore, I am in complete agreement with the finding recorded by the Court below. Besides, it is a clear admission of DW-3 - Arup Choudhary and therefore, I come to ,a conclusion that the Court below was right in its approach while concluding relationship of landlord and tenant exists between the two. 20. Mr. P.R. Bhagat has cited two Judgments to dispute' the fact. The first decision is Mostt. Rajwati Devi and Another vs. The Joint Director, Consolidation, Government of Bihar, Patna and Others, AIR 1989 Patna 66. 20. Mr. P.R. Bhagat has cited two Judgments to dispute' the fact. The first decision is Mostt. Rajwati Devi and Another vs. The Joint Director, Consolidation, Government of Bihar, Patna and Others, AIR 1989 Patna 66. The Patna High Court laid down the principle that the, documents do not prove themselves and unless and until witness is not examined for proving the said document, upon which reliance is placed. This was a case where no witness was examined for proving the documents whereas in the instant case, DW-3 has admitted his handwriting on the Money Order Coupons. The co-responding receipts have also been exhibited. So far the signature of the wife (defendant) on the each Money Order Coupons is concerned, admittedly, it has not been disputed by the defence witness that the' signatures are forged. On the contrary, he has admitted clearly that the endorsement in the coupon is on his own handwriting and, therefore, I am of the view that the decision of, the Patna High Court relied upon by the learned counsel is of no help. 21. The next decision is Deo Kumar Banarjee and Others VS. Ashok Kumar Keshari and Others, (2003)2 JLJR 158 . This decision once again do not give any aid to the case of the revisionist. The Court held in paragraph-3 of the said Judgment which is quoted" hereunder:- "3. ......... It is equally well settled that it is not necessary to call the postal peon and other authorities of the post office for the purpose of proving the money order coupons. Money order receipts are public documents which is the conclusive evidence of remittance of rent by money order.........." 22. Thus, it is true that once the landlord has substantiated and proved his bonafide requirement and satisfaction arrived at by the Court below withstands the test of objective assessment of facts then choosing of the accommodation which will be reasonable to satisfy his requirement, has to be left to the subjective choice of the needy. The Court cannot thrust its own choice upon the needy. Of course, the choice has to be exercised reasonably and not whimsically. 23. Thus the tenant/revisionist i~ liable to vacate the disputed accommodation and hand over possession to the plaintiff-landlord/ opposite party within three months from today. He shall continue to make payment of RS.300/- per month till he hands over possession for use and occupation. 24. Of course, the choice has to be exercised reasonably and not whimsically. 23. Thus the tenant/revisionist i~ liable to vacate the disputed accommodation and hand over possession to the plaintiff-landlord/ opposite party within three months from today. He shall continue to make payment of RS.300/- per month till he hands over possession for use and occupation. 24. In view of the findings recorded above, this Civil Revision has no merit and it is accordingly dismissed. No order as to costs.