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2012 DIGILAW 228 (PAT)

Baijnath Prasad Banarsi v. Triveni Devi

2012-02-07

V.NATH

body2012
JUDGMENT V. Nath, J.- Heard the learned counsel for the parties. 2. This revision application under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as B.B.C. Act) has been filed against the judgment and decree dated 28.04.2009 passed by Munsif, East Muzafarpur in Eviction Suit No. 30/06 by which the suit has been decreed and order has been passed for eviction of the revision-petitioner from the suit premises. The parties hereinafter be referred by the rank held by them in the court below. 3. There is no dispute that the house standing in R.S. Plot No.397 of R.S. Khata No.225, described in detail in Schedule I of the plaint, belonged to Bishwnath Prasad Gupta and Rajendra Prasad Gupta. The plaintiffs have claimed title over this house, described in Schedule I of plaint, on the basis of the purchase by registered sale deed dated 19.09.2005 in the name of plaintiff no.1 from the descendants of Bishwnath Prasad Gupta and Rajendra Prasad Gupta. The plaintiffs case is that there are four shops in the ground floor of this house out of which the defendant has been a tenant from before the purchase of the plaintiff in the shop in the extreme eastern side which has been fully described in Schedule II of the plaint. The adjacent shop west to this shop has been in tenancy of Manish Banka and the shop adjacent thereafter was stated to be in the tenancy of Pawan Kumar Dalmiya. The plaintiffs have claimed themselves to be in possession of the shop in the extreme western side. It is the case of the plaintiffs that the plaintiff nos. 4, 5 & 6 who are the sons of plaintiff nos. 1 & 2 are sitting idle for want of suitable space for starting their own business and the three shops in the house are suitable for them for the said purpose. It is further case of the plaintiffs that the tenant Pawan Kumar Dalmiya had vacated the shop in his tenancy on the request of the plaintiffs. It is further case of the plaintiffs that they intend to demolish the entire building which is now very old and in dilapidated condition and to construct new building providing for shops to the plaintiff nos. It is further case of the plaintiffs that they intend to demolish the entire building which is now very old and in dilapidated condition and to construct new building providing for shops to the plaintiff nos. 4, 5 & 6 for starting their own cloth business as the family of the plaintiffs is carrying on cloth business. The plaintiffs have also described in the plaint the details regarding the shops and have stated that the shop in occupation o the tenancy of the defendant would be allotted to Pramod Kumar Barauliya for the purpose of starting his own business of cloth. The plaintiffs have sought the eviction of the defendant on the ground of personal necessity alone. 4. The defendant appeared in the suit and contested the claim of the plaintiffs mainly by denying the relationship of landlord and tenant in between him and the plaintiffs. It is the case of the defendant that the total area of Plot No.397 of R.S. Khata No. 225 including the house is 20 Dhurs 5 Kanwa out of which the plaintiffs have purchased only 14 dhurs from the western side and the remaining 6 dhurs of land and house in the eastern side remained with Tarkeshwar Prasad and Umesh Prasad who are the descendants of original owners. The defendant has claimed that his shop is in the extreme eastern side of the remaining portion and he is tenant of Tarkeshwar Prasad and Umesh Prasad. It is also the case of the defendant that the said owners namely Tarkeshwar Prasad and Umesh Prasad had sold an area of 3 dhurs and 11 kanwa consisting of the shop in the tenancy of Manish Banka, out of their remaining area of 6 dhurs, to Manish Banka and thereafter the shop in the remaining area from the extreme east has been continuing in occupation of the defendant as tenant of Tarkeshwar Prasad and Umesh Prasad. The defendant has also denied the personal necessity as pleaded by the plaintiffs. 5. In view of the rival cases of the parties the learned court below framed issues including the issue with regard to the relationship of landlord and tenant in between the plaintiffs and the defendant, and also the issue with regard to existence of bona fide personal necessity of the plaintiffs as well as partial eviction. 5. In view of the rival cases of the parties the learned court below framed issues including the issue with regard to the relationship of landlord and tenant in between the plaintiffs and the defendant, and also the issue with regard to existence of bona fide personal necessity of the plaintiffs as well as partial eviction. After considering the evidence of the parties, the learned court below has come to the finding that the total area of the land and house in plot no.397 is only 14 dhurs and not 20 dhurs 5 kanwa as claimed by the defendant, and has further held that the plaintiffs have purchased the entire land and house described in Schedule I of the plaint in which the shop in occupation of the defendant is also situated, as described in Schedule II of the plaint and the defendant is now the tenant of the plaintiff. The learned court below thereafter considered the evidence with regard to personal necessity of the plaintiffs and the partial eviction of the defendant from the suit shop and has come to the conclusion that the plaintiffs have got personal necessity of the suit shop and the partial eviction of the defendant will not satisfy the need of the plaintiffs. 6. The learned senior counsel, Mr. Chitranjan Sinha on behalf of the defendant/petitioner has mainly assailed the finding of the relationship of landlord and tenant in between the plaintiffs and the defendant by submitting that the total area of land with house in plot no.397 is 20 dhurs 5 kanwa out of which the plaintiffs have purchased only 14 dhurs from the western side and the remaining 6 dhurs remained with the owners under whom the defendant is the tenant in the shop in the extreme eastern portion. It has been submitted that originally the land and house in plot no. 397 belonged to Fakirchand Sah who transferred the same by gift deed (Ext.C to his wife) from whom Bishwnath Prasad Gupta and Rajendra Prasad Gupta purchased the same by registered sale deed dated 15.06.1972. It has been submitted that originally the land and house in plot no. 397 belonged to Fakirchand Sah who transferred the same by gift deed (Ext.C to his wife) from whom Bishwnath Prasad Gupta and Rajendra Prasad Gupta purchased the same by registered sale deed dated 15.06.1972. It has been urged that in the gift deed as well as in the sale deed the total area has been show to be 1 katha (about 20 dhur) but in the sale deed dated 19.09.2005 executed by the descendants of Bishwnath Prasad Gupta and Rajendra Prasad Gupta in favour of the plaintiffs the area shown to have been sold is only 14 dhurs. The learned counsel has further argued that the learned court below has wrongly relied upon the report of the Survey Knowing Pleader Commissioner examined as-P.W.5 and the Amin examined as P.W.10 who claimed to have measured the area of plot no.397 but the same measurement had been done without notice to the defendant and even unscientifically. It is also the contention of the learned senior counsel that there is no evidence on record to establish that the total area of plot no. 397 is 14 dhur only. It has also been submitted that this issue involves determination of a complicated question of title and the learned court below has committed error of jurisdiction in adjudicating the same under the summary procedure of Section 14 of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 and on the basis of evidence which are not worth reliance. 7. Per contra, the learned counsel appearing on behalf of the plaintiffs/opposite parties has submitted that there are sufficient evidence on record to establish that the actual area of plot no.397 is only 14 dhurs and the learned court below has rightly recorded that finding after elaborately considering the evidence. It has been further submitted that the boundaries mentioned in the sale deed in the name of the plaintiff no.1 has not been denied by the defendant and in absence of any evidence on behalf of the defendant that the area of plot no.397 is 20 dhurs, it is the boundary which shall prevail. It has been further submitted that the boundaries mentioned in the sale deed in the name of the plaintiff no.1 has not been denied by the defendant and in absence of any evidence on behalf of the defendant that the area of plot no.397 is 20 dhurs, it is the boundary which shall prevail. It has been urged that even in the recent survey khatian, published in 1981, the area of plot no.397 has been mentioned as only 12 dhurs which is sufficient to demolish the case of the defendant that the total area of plot no. 397 is 20 dhurs. The learned counsel has asserted that the learned court below was well within its jurisdiction to determine this issue regarding the area of plot no.397 incidentally while determining the main issue regarding the existence of relationship of landlord and tenant and such issue obviously does not involve a complicated question of title. It has also been submitted that in the limited revisional jurisdiction under Section 14(8) of the B.B.C. Act the reappreciation of evidence is not permissible and this Court is only to see whether the impugned judgment and order is in accordance with law or not. 8. From the rival submissions of the parties, the main issue, which is discernible, is as to whether the plaintiffs have purchased the entire land with house in plot no.397 including the suit shop which is under the tenancy of the defendant. The ancillary issue which also arises is whether the area of plot no.397 is 20 dhurs 5 kanwa as claimed by the defendant or 14 dhurs only as asserted by the plaintiffs. 9. It is the specific case of the defendant that the total area of plot no.397 including the land with house is 20 dhurs and 5 kanwa and after the purchase by the plaintiffs of 14dhurs from west, 6 dhurs remained with the owners in which the defendant is in occupation in the shop in the extreme eastern portion. The sale deed (Ext.5) of the plaintiffs shows that an area of 14 dhurs of plot no.397 has been transferred to the plaintiff no.1 and in the portion where the property under sale has been described, the word “Mosallam” (entire) is specifically mentioned just beneath plot no.397. The sale deed (Ext.5) of the plaintiffs shows that an area of 14 dhurs of plot no.397 has been transferred to the plaintiff no.1 and in the portion where the property under sale has been described, the word “Mosallam” (entire) is specifically mentioned just beneath plot no.397. Further the boundaries of the transferred property has also been mentioned in the sale deed in which on the eastern side “Road” has been shown to exist. The correctness of this boundary has not been denied by the defendant either in his pleading or deposition. If the case of the defendant is accepted that the plaintiff no.1 has purchased only 14 dhurs from western side in plot no. 397 then in the eastern boundary the name of the transferors (owners) should have been mentioned instead of Road which is admittedly on the extreme eastern coundary of plot no.397. It has come in evidence that the suit shop in occupation of the defendant is in the extreme east of plot no.397 and adjacent east to it is road. Thus the boundary mentioned in the sale deed of the plaintiffs clearly militates against the case of the defendant that after the sale to the plaintiffs, an area of 6 dhurs remained with the vendors. Moreover, the existence of road in the extreme eastern side of plot no.397 is also established from the boundary mentioned in the gift deed executed by the original owner Fakirchand Sah(Ext.C) as well as in the sale deed executed in favour of Bishwnath Prasad Gupta and Rajendra Prasad Gupta (Ext.D). In addition, the sale deed (Ext.D/1) said to have been executed by Tarkeshwar Prasad and Umesh Prasad (descendants of Bishwnath Prasad Gupta and Rajendra Prasad Gupta) in favour of Manish Banka (another tenant) for 6 dhurs of plot no. 397, which has been strongly relied upon on behalf of the defendant, does not contain any recital with regard to the sale of major portion of 14 dhurs the same plot by the same vendors in favour of the plaintiffs. The perusal of the recital in this sale deed (Ext.D/1) shows that although reference of purchase of 20 dhurs by sale deed dated 15.06.1972 (Ext.D) has been made but it has been further stated that the vendors have got 6 dhurs by partition. The perusal of the recital in this sale deed (Ext.D/1) shows that although reference of purchase of 20 dhurs by sale deed dated 15.06.1972 (Ext.D) has been made but it has been further stated that the vendors have got 6 dhurs by partition. This sale deed (Ext.D/1) is later to the sale deed of the plaintiffs but very peculiarly the same vendors have omitted to state that after sale of 14 dhurs out of 20 dhurs to the plaintiffs there remained 6 dhurs with them and instead they preferred to recite that they got the 6 dhurs of plot no. 397 by partition among themselves. Further Ext.7 is the order sheet of Miscellaneous Case No. 27/07-08 which shows that on the prayer of the plaintiffs the demarcation and measurement has been done on the order of Anchal Adhikari wherein it has been found that on measurement, the total area of plot no. 397 is 14 dhurs. Similarly Ext.7/B is the order by the Anchal Adhikari for mutation in the name of the plaintiff no.1 for plot no.397 showing its area to be 14 dhurs. It has been contended on behalf of the defendant that in the gift deed (Ext.C) and the sale deed (Ext.D), the area of plot no.397, under transaction, had been mentioned as 20 dhurs and there is no evidence by the plaintiffs to explain the absence of the 6 dhurs of this plot. However, it is admitted that in the recent survey khatian, the land and house, subject matter of gift deed(Ext.C) and sale deed(Ext.D), has been recorded in plot no.397 and its area have been shown as 12 dhurs. The original owners never raised objection to it although the khatiyan had been finally published in the year 1981. The defendant has not examined his alleged landlords(owners) who are the best person to elucidate this fact nor he has adduced any evidence to substantiate his contention that plot no.397 has, in fact, an area of 20 dhurs. There is also no denial of the boundary of the purchased area as mentioned in the plaintiffs sale deed, which, in such cases, has been held to prevail. There is also no denial of the boundary of the purchased area as mentioned in the plaintiffs sale deed, which, in such cases, has been held to prevail. No prayer has also been made to the court by the defendant to get the plot scientifically measured by a Survey Knowing Pleader Commissioner in order to contradict the evidence (Ext.7, Ext.7/B) of the plaintiff showing that after measurement, the Anchal Adhikari has found plot no.397 to have an area of 14 dhurs. In absence of any such evidence on behalf of the defendant to establish his assertion, it is difficult to discard the evidence of the plaintiff only on the basis of Ext.C and Ext.D. The learned court below has elaborately discussed all the evidence of the parties and has relied upon the evidence led by the plaintiffs. Thus the contention of the learned senior counsel for the petitioner that the report of the Survey Knowing Pleader Commissioner as well as Amin could not have been relied upon by the learned court below for concluding that area of the plot no. 397 was 14 dhurs, has got no substance in view of the other more weighty evidence and circumstances to corroborate the same which have been considered by the learned court below to reach to the said finding. Further the learned court below has also considered the oral evidence of the parties before reaching to its conclusion. In this view of the matter I do no find any perversity in the finding of the learned court below that the total area of plot no. 397 as described in Schedule I of the plaint is only 14 dhurs and not 20 dhurs 5 kanwa. 10. The learned court below, thereafter, has considered the personal necessity of the plaintiffs as pleaded and after examining the evidence in that regard has come to the finding that the personal necessity of the plaintiffs is bona fide and reasonable. No submission assailing this finding has been made on behalf of the petitioner. Further, in his written statement also the defendant has simply denied the assertion of the plaintiff and has not made any further statement in this regard. No submission assailing this finding has been made on behalf of the petitioner. Further, in his written statement also the defendant has simply denied the assertion of the plaintiff and has not made any further statement in this regard. The learned court has also examined the location and position of the suit shop as well as its length and width and has come to the finding that the personal necessity of the plaintiff cannot be substantially satisfied by partial eviction of the defendant from the suit shop. 11. It is well settled that the complicated question of title cannot be adjudicated under the summary procedure of Section 14 (8) of the B.B.C. Act. However, it is also well settled that where the tenant deliberately come out with false defence to give the colour to the dispute as involving complicated question of title, then even in an eviction suit under Section 14 of B.B.C. Act, the court is not precluded from determining the said plea incidentally. Otherwise no eviction suit under the said provision can, probably, proceed. Moreover, the adjudication of the issue, regarding the area purchased by the plaintiffs through registered sale deed, cannot be said to involve such complicated question of title as sufficient to oust the jurisdiction of the court under Section 14 of the B.B.C. Act. As such I do not find force in the submission of the learned senior counsel for the petitioner that the learned court below has acted without jurisdiction in determining the complicated question of title while determining the area of the plot no.397. 12. For the foregoing reasons and discussions, I do not find any illegality or infirmity in the impugned order, which is hereby held to be in accordance with law and accordingly, upheld. Thus this revision application is dismissed.