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2012 DIGILAW 226 (PAT)

Hanuman Prasad Gupta v. Shankar Choudhary

2012-02-07

V.NATH

body2012
JUDGMENT V. Nath, J.- Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the opposite parties. 2. This revision application has been filed against the judgment and decree dated 13.12.2004 passed in Title Eviction Suit No.09/1999 by Munsif, Danapur by which the eviction decree has been passed against the defendant/petitioner. 3. The plaintiff filed the suit stating that he had got four rooms in his house out of which two rooms had permanent construction (pucca) whereas the other two rooms had temporary construction (kuchha) and the one room and verandah on the first floor were in damaged condition. The further case of the plaintiff was that the defendant was occupying the two rooms on the ground floor as tenant with agreement to vacate the rooms in January 1990. It was further case of the plaintiff that he had got four sons out of whom three had become major, and he had got personal necessity of the two rooms under occupation of the defendant for the residential purpose of his family members. 4. The defendant by filing written statement denied the personal necessity of the plaintiff and alleged that the plaintiff had in fact got six rooms. The defendant also alleged that the suit had been filed malafidely with purpose to enhance the rent. The learned court below, in view of the rival cases of the parties, framed issues in the suit which included the issue regarding the personal necessity of the plaintiff for the suit premises. After considering the evidence of the parties as well as their submissions, the learned court below has come to the finding that the plaintiff has got bona fide and reasonable personal necessity of the suit premises and accordingly by the impugned judgment and decree has passed the order of eviction against the defendant. 5. The learned counsel appearing on behalf of the petitioner has submitted that the mandatory issue of partial eviction has neither been framed nor considered by the learned court below and as such the judgment is vitiated on that score. It has been urged that the learned court below was required to consider the issue of partial eviction as stipulated in the proviso to Section 11(1)(c) of the Bihar Buildings(Lease, Rent & Eviction) Control Act, 1982(hereinafter referred to as B.B.C. Act). 6. It has been urged that the learned court below was required to consider the issue of partial eviction as stipulated in the proviso to Section 11(1)(c) of the Bihar Buildings(Lease, Rent & Eviction) Control Act, 1982(hereinafter referred to as B.B.C. Act). 6. Per contra, the learned counsel appearing on behalf of the opposite party has submitted that there was no pleading by the defendant petitioner that his partial eviction from the suit premises would substantially satisfy the need of the plaintiff. It is the contention of the learned counsel for the opposite party that, even in spite of this, the learned court below has considered the issue of partial eviction which is reflected from the findings recorded in the judgment. It has also been argued that framing of a separate issue on the question of partial eviction was not required and it would suffice if the said question of partial eviction has been considered by the Court while considering the larger issue of personal necessity. 7. From the perusal of the impugned judgment it is manifest that the learned court below has, after consideration of the evidence of the parties has come to the finding that the house of the plaintiff has only four rooms out of which half is kuchha and half is pucca and the room on the first floor is in damaged condition. The learned court below has also come to the finding that the plaintiff has got four sons and three daughters which fact has also been accepted by the defendant in his deposition. The defendant in his deposition has also accepted that the two sons of the plaintiff has become major. On the basis of these findings, the learned court below has come to the conclusion that even if the plaintiff has got five rooms, those would not be sufficient for the residence of the family of the plaintiff consisting of himself, his wife, four sons and three daughters. There is force in the submission of the learned counsel for the opposite party that there was no requirement in law for the court below to frame a separate issue on the question of partial eviction, and only requirement was the consideration of this issue while passing eviction order on the ground of personal necessity. There is force in the submission of the learned counsel for the opposite party that there was no requirement in law for the court below to frame a separate issue on the question of partial eviction, and only requirement was the consideration of this issue while passing eviction order on the ground of personal necessity. From the impugned judgment, it appears that the learned court below was conscious of the question of partial eviction and has considered the same in view of the evidence on record. Moreover, it was also for the defendant tenant to establish by leading appropriate evidence that even his eviction from part of the tenanted premises would have substantially satisfied the need of the plaintiff. The defendant has led no evidence to show that the plaintiff’s need can be substantially satisfied by evicting him from part of the suit premises and allowing him to continue in occupation in the remaining part. This aspect also came up for consideration before a bench of this Court in the matter of M/s Bata India Ltd. Vs. Dr. Md. Qumruzzama (1993(1)PLJR 87) and their Lordships have observed as follows: “…In our opinion, once the landlord has proved the need of the premises, onus shifts on the tenant. The expression “and the tenant agrees to such occupation” strengthens the view that while holding enquiry on the question of partial eviction it is the tenant who has to express his readiness and willingness for part occupation of the premises and to show that the plaintiff’s need can be substantially satisfied by evicting him from only part of the premises and allowing him to continue in occupation of the rest of it. No part of the defendant’s evidence on the point of partial eviction was brought to our notice. We thus fail to understand as to how the petitioner can assail the finding on the question of partial eviction on the ground that there is no specific evidence on the point…” 8. It is not the case of the petitioner that the evidence on the question of partial eviction was led by him which has not been considered by the learned court below. The impugned judgment shows that the learned court below has taken overall view of the matter and has recorded the findings on the basis of the evidence as led by the parties. The impugned judgment shows that the learned court below has taken overall view of the matter and has recorded the findings on the basis of the evidence as led by the parties. I find that the findings recorded by the learned court below are in accordance with law. 9. For the foregoing reasons and discussions I find no substance in the submissions on behalf of the petitioner. Thus the impugned judgment, decree and eviction order are upheld and this revision application is, accordingly, dismissed.