JUDGMENT : 1. Heard the parties. 2. This appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 25.09.2006 passed by the Additional District Judge, Fast Track Court –III, Chatra in Eviction Appeal No. 18 of 2006 whereby and where under the learned court below has set aside the judgment and decree of eviction passed by the learned trial court being court of Munsif, Chatra in Eviction Suit No. 25 of 2001 dated 15.07.2006 whereby and where under the learned trial court passed the judgment and decree directing the defendant to hand over vacant possession of the suit property to the plaintiff within one month from the date of judgment. 3. The case of the plaintiff in brief is that the plaintiff is the owner of the suit land. The deceased father of the plaintiff during his lifetime inducted the father of the defendant as a tenant in a portion of the tiled roof house on monthly rent of Rs.70/-. The father of the defendant died leaving behind the defendant. After his father, the defendant continued in possession of the tenanted premises at the monthly rent of Rs.70/-. The plaintiff filed eviction suit against the defendant as after the death of his father, the tenancy came to an end. After filing of the suit by the plaintiff, the defendant became angry and in frustration to cause loss to the plaintiff, the defendant got the tenanted premises set on fire and implicated the plaintiff, his son and others in a case under Section 436 of the Indian Penal Code. In S.T. Case No. 314 of 1986, the defendant entered into a compromise with the plaintiff and others. During the pendency of the said S.T. Case No. 314 of 1986, the defendant filed a petition under Section 9 of the Bihar Building (Lease, Rent and Eviction) Control Act in the court of House Rent Controller but he lost up to the High Court. Thereafter, again the defendant filed a petition for repair of the house in question in the court of Sub Divisional Magistrate, Chatra. A compromise was entered into the parties and thereafter, the plaintiff got double storied pucca house constructed bearing Holding No. 80 without removing the defendant from the portion of the house in occupation. Thereafter, again the defendant filed a petition for repair of the house in question in the court of Sub Divisional Magistrate, Chatra. A compromise was entered into the parties and thereafter, the plaintiff got double storied pucca house constructed bearing Holding No. 80 without removing the defendant from the portion of the house in occupation. After construction of the house in question, the defendant again occupied the newly constructed portion described in Schedule –A of the Plaint. The rent of the said premises was fixed at Rs.200/- per month as fair rent. Later on, the defendant became ready to pay Rs.425/- per month towards rent. To augment the income of the family of the plaintiff, the plaintiff required the premises occupied by the defendant to set up an Ultrasound Machine facility. So the plaintiff filed the suit for eviction of the defendant on two grounds i.e. (i) for default in payment of rent and (ii) personal necessity of the suit land by the plaintiff. The defendant in his written statement besides challenging the maintainability on technical ground pleaded that he has not defaulted in payment of rent and the plaintiff does not requires the tenanted premises for his personal necessity. 4. On the basis of the rival pleadings, the learned trial court altogether settled the following seven issues : (i) Whether the suit is maintainable in its present form? (ii) Whether the plaintiff has any cause of action for filing the suit? (iii) Whether the suit is bad on the principle of estoppel, waiver and acquiescence? (iv) Whether the plaintiff has personal necessity of the suit premises for the income of his sons? (v) Whether the requirement of the defendant would be met by a partial eviction of the defendant? (vi) Whether the defendant has failed to pay the monthly rent in respect of the tenanted premises and the plaintiff is entitled to recover the total arrear rent of Rs.3,825/- from February, 2001 to October, 2001? (vii) Whether the plaintiff is entitled to relief and reliefs? 5. The learned trial court first took up issue no. vi and after considering the evidence in the record came to the conclusion that the defendant never defaulted in payment of rent. It is pertinent to mention here that this finding of fact was not challenged by the plaintiff before the first appellate court. 5. The learned trial court first took up issue no. vi and after considering the evidence in the record came to the conclusion that the defendant never defaulted in payment of rent. It is pertinent to mention here that this finding of fact was not challenged by the plaintiff before the first appellate court. Thereafter, the trial court took up issue no.iv and considering the evidence in the record came to a conclusion that there is personal necessity of the tenanted premises by the plaintiff. Thereafter, the trial court took up issue no. v and came to the conclusion that partial eviction of the defendant will not fulfill the personal necessity of the plaintiff. The trial court then took up issue nos. i, ii & iii together and answered the same in favour of the plaintiff against the defendant. In respect of issue no.vii, the trial court held that the plaintiff is entitled to the reliefs for eviction of the suit premises and passed the judgment and decree for eviction as already indicated above. 6. Being aggrieved by the said judgment and decree passed by the trial court, the defendant preferred Eviction Appeal No. 18 of 2006 in the court of District Judge, Chatra which was ultimately heard and disposed of by the impugned judgment by the learned first appellate court. The learned first appellate court made independent appreciation of the evidence in the record and considering the fact that in an earlier case, the landlord got partial eviction of the defendant on the ground of personal necessity but later on gave the portion of the evicted premises to another person on rent and relying upon the Judgment of Hon’ble Patna High Court, Ranchi Bench, in the case of Bhanu Prasad Versus Chandra Prasad, reported in (1997) 2 PLJR 865 . The first appellate court also considered that the plaintiff is not interested in recovery of the rent from the defendant and he is only interested in eviction of the defendant as is evident from his conduct by not filing any appeal against the finding of the trial court where the trial court has held that the defendant has not defaulted in payment of arrear rent. The learned first appellate court also considered that the other tenants of the plaintiff are paying much higher rent than the defendant. The learned first appellate court also considered that the other tenants of the plaintiff are paying much higher rent than the defendant. The first appellate court also considered the fact that the sons of the plaintiff have no training in operating Ultrasound Machine and have no degree in Pharmacy and also considered that it is not easy in procuring a technician of a Ultrasound Machine like hiring a driver for a car. The first appellate court also considered the Ext. 4 series which is the report of Advocate Commissioner in which the measurement of the rooms in occupation of the tenant has been mentioned in detail and also found fault with the plaintiff by not mentioning the detailed requirement of the area required by him for setting up Ultrasound Machine and went on to hold that the plaintiff requires the tenanted premises to let out the same for higher rent and there is no reasonable, bona fide and good faith need of the disputed premises by the plaintiff and allowed the appeal and reversed the judgment and decree of the trial court and dismissed the same. 7. At the time of admission of this appeal, vide order dated 08.09.2009, the following substantial question of law was formulated:- “Whether the court of appeal below has committed error of law in reversing the findings on the issue of personal necessity without meeting the reasonings given by the trial court.” 8. Mr. S.K. Sharma, the learned counsel appearing for the appellant relied upon the Judgment of Hon’ble Supreme Court of India in the case of Savitri Sahay vs. Sachidanand Prasad, reported in AIR 2003 SC 156 , paragraph nos. 8 of which reads as under:- “8. We are unable to agree with the submission of Mr. Sanyal. We have perused the impugned Judgment. The High Court did not re-appreciate evidence to arrive at a different conclusion. The High Court has merely set out the admitted facts and/or facts which have been proved during the course of trial. On the admitted or proved facts the High Court felt that the conclusion arrived at by the trial Court was unreasonable and perverse. Therefore the High Court recorded its own finding. The High Court has merely set out the admitted facts and/or facts which have been proved during the course of trial. On the admitted or proved facts the High Court felt that the conclusion arrived at by the trial Court was unreasonable and perverse. Therefore the High Court recorded its own finding. This the High Court was entitled to do once it concluded that the findings of the trial Court were perverse.” And submits that the High Court, on the admitted and proved facts, feels that the conclusion arrived at by the trial court was unreasonable and perverse it is entitled to set aside the same once it concluded that the findings of the trial court was perverse. It is further submitted by Mr. Sharma that it is a settled principle of law that it is for the landlord to choose which one of the several premises, which would be preferable to him or her and the tenant could not question such preference of the landlord and submits that in this case, the finding of fact of the first appellate court is perverse as the finding of fact is based on irrelevant considerations, hence the same be set aside. 9. Mr. Sharma next relied upon the Judgment of Hon’ble Supreme Court of India in the case of Akhileshwar Kumar and Others v. Mustaqim and Others, reported in AIR 2003 SC 532 wherein the Hon’ble Supreme Court of India has held that once, it has been proved by the landlord that the suit accommodation is required bond fide by him for his own purpose and such satisfaction withstands the test of objective assessment by Court of the facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. 10. Mr. Sharma lastly relied upon the Judgment of Hon’ble Patna High Court, in the case of M/s. Bata Shoe Company Pvt. Ltd. Vs. Durga Prasad Gupta, reported in 1991 0 BBCJ 192 , para-8 of which reads as under:- “8. 10. Mr. Sharma lastly relied upon the Judgment of Hon’ble Patna High Court, in the case of M/s. Bata Shoe Company Pvt. Ltd. Vs. Durga Prasad Gupta, reported in 1991 0 BBCJ 192 , para-8 of which reads as under:- “8. It has to be kept in mind that in terms of the provisions contained in Clause (c), what is necessary to find is not only that the building is reasonably required by the land lord for his own occupation but also that the requirement is in good faith Therefore, the mere assertion of the plaintiff cannot be said to be conclusive. The distinction between 'desire' and 'need' of the plaintiff to himself occupy the premises bas to be kept in mind and that can be done only when sufficient evidence is led on behalf of the parties showing, inter alia that he was in a position on the basis of availability of fund and other facilities and expertise, to start a particular business. It is also not clear from the order as to whether the other buildings which are admittedly owned by the plaintiff in the town of Katihar were not vacant or were unsuitable for occupation. The finding of the court that the landlord has a free-choice of selecting the accommodation is contrary to the decision of the Supreme Court in the case of M. M. Qasum (supra), wherein it was said: "This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States in the, country. The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act, the landlord can re-enter. The such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy the element of need in his requirement would be absent. The such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy the element of need in his requirement would be absent. To reject this appeal by saying that the landlord has an unfettered right to choose the premises is to 'negative the very raison d’etre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement Unsupported by the Rent Act, to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession of which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlords greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the, market rate. To curb this very tendency the Rent Act, was enacted and, therefore, it becomes the duty of the Court administering the Rene Act, to bear in mind the object and intendment of the legislature in enacting the same." Since the court has not considered the aforesaid allied issues, the finding recorded by it in regard to personal necessity cannot be sustained in law and the matter requires reconsideration by the trial court. The argument of the learned counsel for the Opposite party that merely because the defendant had agreed to vacate part of the suit premises, he cannot question the existence of personal need of the plaintiff cannot be accepted for the reason that it was only an alternative plea and cannot be interpreted as an admission of the plaintiff's claim.” (Emphasis supplied) And submits that if it is found by the tenant that the landlord has some other vacant premises in his possession that by itself may not be sufficient to negative the landlord’s claim but in such a situation the court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation, or the purpose for which he requires the premises in respect of which the action is commenced in court and in this case, the other premises of the plaintiff are not suitable for establishing an Ultrasound Machine facility, hence the first appellate court committed an error of law in not appreciating this fact and setting aside the judgment and decree passed by the trial court. Hence, it is submitted that the judgment and decree passed by the first appellate court be set aside and the judgment and decree passed by the trial court be restored. 11. Mr. Sanjay Kr. Tiwari, the learned counsel for the respondents on the other hand defended the impugned judgment and decree passed by the first appellate court and submits that the first appellate court has arrived at the finding of fact on the basis of appreciation of evidence in the record and this appeal do not involve any substantial question of law. 12. The learned counsel for the respondents relied upon the Judgment of Hon’ble Supreme Court of India, in the case of Kalpesh Hemantbhai Shah v. Manhar Auto Stores through its partners and Others, reported in (2014) 15 SCC 711 , para-9 of which reads as under:- “9. It is well settled that the High Court under Article 227 of the Constitution of India has jurisdiction to correct the error if apparent on the face of the record. But in the present case the respondents failed to bring on record as to what was the error committed by the District Judge in deciding the appeal. It is well settled that the High Court under Article 227 of the Constitution of India has jurisdiction to correct the error if apparent on the face of the record. But in the present case the respondents failed to bring on record as to what was the error committed by the District Judge in deciding the appeal. The claim of the appellant to use the premises for personal necessity is a question of fact which was decided by the District Judge on appreciation of evidence. There was no mixed question of law and fact involved in the case, much less question of law. The comparative hardship of tenant and landlord is a question of fact. In absence of any question of law involved with such facts, the High Court cannot alter such finding under Articles 226 and 227 of the Constitution of India.” (Emphasis supplied) And submits that though the said observation that the comparative hardship of tenant and landlord is a question of fact; was made in respect of jurisdiction of the High Court under Article 227 of the Constitution of India but the ratio of the judgment is squarely applicable to the existence or otherwise of the substantial question of law in an appeal filed under Section 100 of the Code of Civil Procedure as well. It is next submitted by the learned counsel for the respondents that there is absolutely no dispute regarding the fact that earlier the appellant-landlord got partial eviction of the tenant from the earlier occupied portion of the tenanted premises of which the present tenanted premises occupied by the respondent-defendants is a part, on the ground of personal necessity but subsequently without using that premises, the appellant gave the said premises on rent at a higher rent to a different person and the facts of this case to this extent is squarely covered by the Judgment of Hon’ble Patna High Court, in the case of Bhanu Prasad vs. Chandra Prasad (Supra), as has been referred to by the first appellate court and on this ground alone, the appellant is not entitled to evict the respondent-defendant on the ground of personal necessity. 13. The learned counsel for the respondents next relied upon the Judgment of Hon’ble Patna High Court, in the case of Jogeshwar Devi Versus Ashok Kumar Chachra, reported in 1991 0 Supreme (Pat) 103, para-10 of which reads as under:- “10. 13. The learned counsel for the respondents next relied upon the Judgment of Hon’ble Patna High Court, in the case of Jogeshwar Devi Versus Ashok Kumar Chachra, reported in 1991 0 Supreme (Pat) 103, para-10 of which reads as under:- “10. Recently, in Jat Prakash Jalan and Anr. V/s. Rambilas Madan Gopal in C.R. No. 46 of 1990 (R) disposed of on 21-2-1991, a Division Bench of this Court upon considering the various decisions held: In terms of Sec. 11(1)(c) of the said Act, a mandate has been imposed upon the court to satisfy itself that the building is reasonably and in good faith required. Such a determination is possible when the court takes into consideration the facts pleaded by the parties and the evidence brought on records. The court while arriving at a decision is also required to consider that the building is reasonably and in good faith required by the landlord or not. Bona fide means in good faith and genuinely. Bona fide need must be a genuine need for the land to occupy the premises. It is not enough that he really means to occupy it; it must be necessary for him to occupy and such necessity must be genuine one. The expression reasonably required is also relevant and, thus, the same has to be judged according to the dictates of reason and not on any capricious view or on sentiment, While judging the reasonable requirement of the plaintiff, his status, nature of work or vocation, status of his health and other similar factors would be relevant consideration. It must also be borne in mind that in the proviso to Sec. 11(1)(c), the Legislature in its wisdom has chosen to qualify the word satisfy by the expression substantially. The same has evidently been done with a view to keep the interest of the tenant protected by providing occupation to him of the building in part and granting to the landlord occupation to meet his requirement. It further held: Although, in the context of the said Act, the court cannot embark upon adjudication on an issue of comparative hardship, the court while exercising its jurisdiction under the provision to Sec. 11(1)(c) of the said Act has also to take into consideration the needs and convenience of both the landlord and tenant. It further held: Although, in the context of the said Act, the court cannot embark upon adjudication on an issue of comparative hardship, the court while exercising its jurisdiction under the provision to Sec. 11(1)(c) of the said Act has also to take into consideration the needs and convenience of both the landlord and tenant. It has also to consider as to how best both the landlord and tenant can be accommodated in the same premises.” And submits that the word ‘bona fide’ used in Section 11(1)(c) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 means in good faith and genuine necessity of the landlord to occupy the tenanted premises. It is next submitted that while judging the reasonable requirement of the plaintiff, it must be borne in mind that in the proviso to Section 11 (1)(c), the Legislature has chosen to qualify the word satisfy by the expression substantially and the same has evidently been done with a view to keep the interest of the tenant protected by providing occupation to him of the building in part and granting the landlord occupation to meet his requirement and in this case, keeping in view the antecedent of the appellant-landlord of getting the tenant-respondent partially evicted from the tenanted premises, as he has laid out the same to some other tenant on higher rent amount and this antecedent of the appellant coupled with the fact that there is no specific pleading in the plaint as to what is the exact requirement of the area for setting up the Ultrasound Machine Facility and its accompanying requirements for peripheral activities, the learned first appellate court has rightly came to the conclusion that the plaintiff is not entitled for the eviction of the defendant on the ground of personal necessity. Hence, it is submitted by the learned counsel for the respondent that as the finding of the first appellate court is well reasoned and based on sound principle of law, the same do not warrant any interference by this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. 14. Hence, it is submitted by the learned counsel for the respondent that as the finding of the first appellate court is well reasoned and based on sound principle of law, the same do not warrant any interference by this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. 14. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India, in the case of Arumugham (dead) by L. Rs. and others v. Sundarambal and another, reported in AIR 1999 SC 2216 , wherein the Hon’ble Supreme Court of India has held as under in para-14:- “14. From the aforesaid judgment of the three Judges bench in Ramachandra Ayyar's case ( AIR 1963 SC 302 ), it is clear that this Court held that second appellate Court cannot interfere with the judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the trial Court. It is open to the first appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on other side. It is not permissible for the second appellate Court to interfere with such findings of the first appellate Court only on the ground that the first appellate Court had not come to grips with the reasoning given by the appellate trial Court. The aforesaid judgment of this Court in Ramachandra Ayyar's case ( AIR 1963 SC 302 ) specifically distinguished Rani Hemanta Kumar Debi v. Maharaja Jagadindra Nath Roy Bahadur, (1906) 16 Mad LJ 272 (PC) rendered by the Privy Council on the ground that that was a case wherein the High Court was dealing with a first appeal. The aforesaid judgment of this Court in Ramachandra Ayyar's case ( AIR 1963 SC 302 ) specifically distinguished Rani Hemanta Kumar Debi v. Maharaja Jagadindra Nath Roy Bahadur, (1906) 16 Mad LJ 272 (PC) rendered by the Privy Council on the ground that that was a case wherein the High Court was dealing with a first appeal. The observations made by the Privy Council in that context would not be applicable to cases where the second appellate Court was dealing with the correctness of the judgment of the first appellate court which reversed the trial Court.” (Emphasis supplied) That a second appellate court cannot interfere with the Judgment of the first appellate court on the ground that the first appellate court has not come to close grips with the reasoning of the trial court. 15. Now coming to the facts of the case, the landlord filed the suit for eviction on two grounds: (i) default in payment of rent & (ii) on the ground of personal necessity. One of his grounds, that is default in payment of rent by the defendant-tenant has been negated by the trial court and there is no appeal for that and the same has reached finality. So far as the ground of personal necessity is concerned, the trial court certainly failed to take note of the undisputed fact that on an earlier occasion, the appellant got the tenant evicted from part of the tenanted premises on the ground of personal necessity and later on laid out the said premises vacated by the tenant to another person at a higher rent. As has been held by the Hon’ble Supreme Court of India in the case of M. M. Quasim v. Manohar Lal Sharma and others, reported in AIR 1981 SC 1113 wherein, the Hon’ble Supreme Court of India negated the contention that the landlord has an unfettered right to choose whichever premises he wants and that too irrespective of the fact that he has some vacant premises in possession of which he would not occupy and try to seek to remove the tenant. As such approach would put a premium on the landlords’ greed to throw out tenants paying lower rent in the name of personal occupation and laid out the premises in his possession at the market rate and to curb this very tendency the Rent Act was enacted. As such approach would put a premium on the landlords’ greed to throw out tenants paying lower rent in the name of personal occupation and laid out the premises in his possession at the market rate and to curb this very tendency the Rent Act was enacted. As rightly observed by the first appellate court that no detailed measurement is given in the plaint for the purpose of Ultrasound Machine and the first appellate court on the basis of the evidence in the record has come to a conclusion that a total area required for setting up an Ultrasound Machine is more than the area occupied by the appellant-landlord and the three small rooms occupied by the tenant is not suitable for the wholesale medicine shop and ultrasound machine to be established and the first appellate court after considering the evidence in the record has come to a conclusion that, it was the desire of the plaintiff-appellant to get the premises and not the need and under such circumstances, it cannot be said that the finding of the first appellate court is a perverse one. 16. Accordingly, this Court is of the considered view that it being a settled principle of law that merely because the first appellate court has not met the reasoning given by the trial court; which also could not be established by the appellant by showing any particular reasoning which was not mat by the first appellate court, the judgment and decree passed by the first appellate court cannot be reversed by the High Court in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure since the impugned judgment and decree of the first appellate court do not suffer any perversity, this Court is of the considered view that there is no justifiable reason to interfere with the same. Thus the only substantial question of law that is “whether the court of appeal below has committed error of law in reversing the findings on the issue of personal necessity without meeting the reasonings given by the trial court’ as formulated is answered in the negative. 17. In view of the discussions made above, this appeal is dismissed on contest, but under the circumstances without any costs. 18. Let a copy of this Judgment along with Lower Court Records be sent back to the learned court below forthwith.