Civil Revision No.2033 of 2009 -------- Against the judgment and decree dated 07th of September, 2009 passed in Eviction Suit No.61 of 1999 by Munsif-III, Patna. ------- Arjun Prasad, S/o Late Ram Pravesh Singh, resident of Mohalla- Gulab Bagh, Bari Path, opposite Hathua Market, P.S. Kadamkuan, District-Patna. ….. Defendant-Petitioner. Versus Shri Paras Nath Yadav, S/o Late Shri Sitaram Sinha, resident of Mohalla-Gulab Bagh, Bari Path, opposite Hathua Market, P.S. Kadamkuan, District-Patna. …. Plaintiff-Opposite Party. ------ For the petitioner : Mr. S.P. Singh, Senior Advocate. Mr. M.P.Sinha, Advocate. Mr. Madhukar Pandey, Advocate. For the opposite party : Mr. Ambuj Nayan Choubey, Advocate. ------ P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN ---- S.N.Hussain, J. This civil revision has been filed by the defendant-petitioner 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 the order of his eviction passed by Munsif-III, Patna vide judgment and decree dated 07.09.2009 in Eviction Suit No.61 of 1999. 2. The aforesaid suit was filed by the sole plaintiff-opposite party for eviction of the sole defendant-petitioner from a shop katra and a room in Holding No.151/119, Circle No.20, Ward No.13, Plot No.589, sheet No.62, situated at Mohalla Gulab Bagh, under Kadamkuan police station within Patna district detailed in Schedule-I of the plaint for the following reliefs:- (a) Decree for eviction of defendant in favour of the plaintiff directing the defendant to vacate the premises in suit within the time fixed. (b) Cost of the suit awarded in favour of the plaintiff against the defendant. (c) Any other relief or reliefs to which the plaintiff is found entitled. 3. The plaintiff had claimed that the suit property belonged to one Ram Lakhan Yadav who left behind two sons Sita Ram Sinha and Radhey Shyam 2 Yadav, out of whom Radhey Shyam Yadav died issueless in the year 1998, his wife having predeceased him, whereas Sita Ram Sinha died in the year 2001 leaving behind two sons as his heirs and legal representatives, namely Paras Nath Yadav (Plaintiff-opposite party) and Arun Sinha. It was also claimed that there was a partition between the two brothers, namely Sita Ram Sinha and Radhey Shyam Yadav in the year 1986 in which the suit premises fell in the share of Radhey Shyam Yadav who gifted the suit property vide registered deed of gift dated 24.10.1988 (Ext.-2) in favour of the plaintiff. It was further asserted that Title Suit No.78 of 1984 was filed by both brothers, namely Sita Ram Sinha and Radhey Shyam Yadav, for eviction of the tenant Ram Pravesh Singh (father of the defendant) on the ground of personal necessity, but in the year 1997, the said suit was dismissed by the trial court for default as no one appeared for the plaintiffs because in the meantime there had been a partition between the said two brothers in the year 1986, whereafter Radhey Shyam Yadav had gifted the suit property to the plaintiff in the year 1988. It was also claimed by the plaintiff that in the aforesaid Title Suit No.78 of 1984, the defendant Ram Pravesh Singh (father of the present defendant) sought amendment of his written statement that since due to partition and deed of gift, the plaintiff of Title Suit No.78 of 1994 had no claim left, but the said amendment petition was dismissed by the trial court vide order dated 09.08.1995, against which Civil Revision no.1412 of 1995 was filed by the said Ram Pravesh Singh which was allowed on 26.06.1997 and, accordingly, the written statement of Ram Pravesh Singh in Title Suit No.78 of 1984 was amended (Ext.13) adding his claim that the plaintiff of that suit, namely Sita Ram Sinha and Radhey Shyam Yadav, had no claim left in the suit property as there was partition in 1986 and gift in the year 1988 in favour of Paras Nath Yadav, namely the present plaintiff. In the said circumstances, Title Suit No.78 of 1984 was dismissed for default due to non- prosecution. 4. The plaintiff had also averred that he was the sole and absolute owner of the suit property and was the landlord of the defendant who was in possession of the suit property as his tenant after the death of his father, but rent was very meagre and hence the plaintiff filed BBC Case No.88 of 1998 against the 3 defendant for enhancement and determination of fair rent in which the defendant appeared and contested, but the House Controller allowed the said case and fixed the fair rent of the suit premises at the rate of Rs.823.00 per month from 12.04.1998. The plaintiff further claimed that he had bonafide personal requirement of the suit premises as he was a clerk in the Bank of India having several children, who were studying in college and schools and their expenses were quite unbearable in view of his slender income as a clerk, specially when one of his daughters had attained marriageable age for which also he had to raise his income. In the said circumstances plaintiff’s wife, who was an expert in sewing, designing and embroidery etc., wanted to help the plaintiff in opening a shop for the said purpose for which the area was very appropriate being a well known market place near Hathua Market. 5. On the other hand, the defendant appeared and filed his written statement claiming that he was not the tenant of the plaintiff and there was no relationship of landlord and tenant between them. It was also claimed that the plaintiff’s case was based on deed of gift dated 24.10.1988 (Ext.-2) executed by Radhey Shyam Yadav, who was the landlord of defendant’s father, but the said Radhey Shyam Yadav filed Title Suit No.06 of 1991 for cancellation of the deed of gift which was decreed by the trial court and the said decree was never challenged. However, the said judgment and decree passed in Title Suit No.06 of 1991 was not produced by the defendant for being marked as an exhibit. 6. It was further asserted by the defendant that the suit was bad for non-joinder of necessary parties as for such suit all the heirs and successors of the original owner Radhey Shyam Yadav should have filed the suit. It was also asserted that father of the defendant, namely Ram Pravesh Singh died on 01.12.1997 leaving behind defendant and five daughters, all of whom had equal shares in the shop, and hence their non-impleadment rendered the suit bad for non-joinder of necessary parties. It is further claimed that the deed of gift of 1988 was a void document having been cancelled by a court of law and as such the said deed of gift was neither acted upon, nor possession was ever delivered to the plaintiff and hence there was no relationship of landlord and tenant between the parties nor the 4 defendant ever paid any rent to the plaintiff. It was further claimed that there was no bonafide personal requirement of the plaintiff for the suit premises as his daughter had already been married on 19.01.2001 and the suit premises being a small Khapraphosh room, was also not suitable for the business for which plaintiff claimed requirement and apart from it the plaintiff had a big house in mohalla- Bakarganj which was the best market place for such business. Hence, he claimed that the suit was fit to be dismissed. 7. After considering the respective claims of parties the learned trial court framed following issues for deciding the abovementioned eviction suit:- (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has got any valid cause of action? (iii) Whether the suit is barred by law of limitation and is hit by principles of waiver, estoppel and acquiescence? (iv) Whether there is any relationship of landlord and the tenant between the plaintiff and the defendant? (v) Whether the plaintiff has personal necessary for the suit premises? (vi) Whether partial eviction will satisfy personal necessity of the plaintiff? (vii) To what other relief or reliefs, if any, the plaintiff is entitled to? 8. In support of his claim, the plaintiff filed 13 documents, out of which, Ext.-1 is a receipt granted by the Patna Municipal Corporation in the name of plaintiff; Ext.-2 is a registered deed of gift dated 24.10.1988 executed by Radhey Shyam Yadav in favour of plaintiff; Ext.-3 is the certificate granted by Shilp Kala and Mahila Kalyan Kendra, Patna in favour of plaintiff’s wife; Ext.-4 is provisional certificate issued by Bihar Intermediate Education Council, Patna in favour of the son of plaintiff; Ext.-5 is Fair Rent Certificate issued by House Controller, Sadar Patna dated 12.04.1999 relating to suit holding; Ext.-6 is the certified copy of deposition of Ram Pravesh Singh, father of defendant in Eviction Suit No.78 of 1984; Ext.-7 is passing certificate issued by the Council for Indian School Certificate Examination, New Delhi in favour of plaintiff’s son; Ext.-8 is Admit Card of B.Com Part-I (Hons) issued by Patna University in favour of plaintiff’s 5 son; Ext.-8/A is Admit Card issued by Patna University for B.Com Part- III (Hons) Examination in favour of plaintiff’s son; Ext.-9 is the certified copy of deposition of a witness Mangal Singh in Eviction Suit No.78 of 1984; Ext.-10 is the certificate granted by Wings Tailors, Hathua Market, Patna dated 14.03.2005; Ext.-11 is the certified copy of order of Assistant Administrator, Bankipur Anchal in Mutation Case No.59/20 of 1999-2000 dated 31.08.1999; Ext.12 is the death certificate of Sita Ram Singh, father of plaintiff showing his death on 19.05.2001; Ext.-12/A is the death certificate of Radhey Shyam Yadav showing his death on 26.06.1998; and Ext.-13 is the certified copy of High Court order dated 26.06.1997 passed in C.R.No.1412 of 1995. 9. In support of his claim, the plaintiff produced 11 witnesses, out of whom, P.W.1 was the plaintiff himself and P.Ws.5 and 10 were his wife and son respectively, whereas P.W.8 was his relative and P.Ws.3 and 4 were identifier and witness of the registered deed of gift dated 24.10.1988, whereas other witnesses included formal witnesses and some other witnesses supporting plaintiff’s claim. 10. On the other hand, the defendants produced two documents, namely Ext.A which is the certificate issued by Weights and Measure Department and Ext.-B is the verification receipt of the said certificate. In support of his claim, the defendant produced 16 witnesses, out of whom, D.W.11 was the defendant himself and the others included formal witness and some other witnesses supporting his claim. 11. After considering the pleadings and evidence of the parties, Munsif-III, Patna decreed Eviction Suit No.61 of 1999 on contest with cost against the defendant vide his judgment and decree dated 07.09.2009 directing the defendant to vacate the suit premises within sixty days from the date of the judgment failing which the plaintiff would be entitled to get the decree executed through the process of the court. The trial court passed the said order of eviction after arriving at the following findings:- (a) The suit filed by the plaintiff is maintainable. (b) The plaintiff has got valid cause of action for the suit. 6 (c) Issue regarding limitation, estoppel, waiver and acquiescence not pressed. (d) Relationship of landlord and tenant between the plaintiff and the defendant is well proved and hence there is relationship of landlord and tenant between them. (e) The plaintiff’s personal requirement of the suit premises is bonafide, reasonable and in good faith. (f) Partial eviction of the suit premises would not serve the purpose and requirement of the plaintiff because the front portion of the suit premises could be utilized as shop room whereas back portion of the suit premises could be used for work shop purposes. (g) The plaintiff is not entitled to any other relief. 12. Against the aforesaid judgment and decree of the trial court, the defendant-petitioner filed the instant civil revision which was admitted on 22.03.2010 and was fixed for final hearing by a bench of this court. The following points have been raised for decision in the instant case by the defendant-petitioner:- (i) Whether the suit is bad for non-joinder of necessary parties, namely all the heirs of the original owner-landlord as well as all the heirs of the original tenant? (ii) Whether the plaintiff can claim any title over the suit property by virtue of a deed of gift from the admitted owner which was cancelled by a decree of the court? (iii) Whether there is any relationship of landlord and tenant between the parties? (iv) Whether the plaintiff could prove his personal necessity by any valid material, especially when he has got several other vacant premises? (v) Whether the suit premises which is facing Bari Road is capable of partial eviction which was ignored by the trial court? 13. So far the first point raised by the petitioner is concerned, it contains two parts. The first part of the said point is non-joinder of all the heirs and successors in interest of Radhey Shyam Yadav who is claimed by the defendant to be the original owner of the suit premises and landlord of the defendant, whereas the second part of the said point is non-joinder of all the heirs of the original tenant Ram Pravesh Singh (father of the defendant), who according to the defendant, died on 01.12.1997 leaving behind a son (defendant) and five daughters. Admittedly Radhey Shyam Yadav died issueless in the year 1998, his wife having predeceased 7 him, and hence even if his gift by registered deed dated 24.10.1988 (Ext.2) is not taken into account, his entire property would devolve upon his sole brother Sita Ram Sinha, who subsequently died in the year 2001 leaving behind two sons as his heirs and legal representatives, namely Paras Nath Yadav (plaintiff) and Arun Sinha. In the said circumstances the plaintiff, if not an absolute owner of the suit property, is clearly a co-sharer of the suit property who is legally entitled to file a suit for eviction of the defendant on the ground of personal necessity. Furthermore, admittedly Ram Pravesh Singh (father of the defendant) was the tenant of the suit premises and after his death, defendant is running the shop in suit. The said Ram Pravesh Singh not being the owner of the suit premises, his daughters cannot be legally claimed to be co-sharers of the suit premises. The said Ram Pravesh Singh was only running his business in the suit premises as a tenant and the defendant has failed to bring on record any material to show that after his death, his daughters had any interest or were taking part in the said business. In this regard Ext.A and B as well as the depositions of witnesses produced by the defendant are quite insufficient and unreliable specially when the plaintiff has been able to sufficiently prove by valid evidence of PWs.1, 5, 8 and 10 that it was only the defendant who was running the business in the suit shop. In the said circumstances the suit was not bad for non-joinder of either the heirs of the original owner Radhey Shyam Yadav or due to non-joinder of the heirs of original tenant Ram Pravesh Singh as claimed by the defendant. 14. So far the second point raised by the petitioner is concerned, the plaintiff has produced a registered deed of gift dated 24.10.1988 (Ext.2) executed by the admitted original owner Radhey Shyam Yadav, who was issueless, in favour of his nephew Paras Nath Yadav (plaintiff) on account of love and affection with respect to the suit premises. It is also claimed by the plaintiff that the said gift was acted upon which is supported by PWs.1, 3, 4, 5, 8 and 10 as well as the receipt of the Patna Municipal Corporation (Ext.1), certified copy of deposition of defendant’s father (Ram Pravesh Singh) in Eviction Suit no.78 of 1984 (Ext.6), order dated 31.08.1999 in Mutation Case No.59/20 of 1999-2000 (Ext.11), etc. Although the defendant had claimed that the said registered deed of gift was 8 cancelled by a court of law in Title Suit No.06 of 1991 and had produced some witnesses in that regard, but no judgment or decree or any paper of the said suit was produced by the defendant. Furthermore, in any view of the matter the admitted original owner Radhey Shyam Yadav died in the year 1998 (Ext.12) issueless, his wife having predeceased him, all his property including the suit property clearly devolved upon his only brother Sita Ram Sinha who died in the year 2001 (Ext.12/A) leaving behind two sons Paras Nath Yadav (plaintiff) and Arun Sinha. Hence, the only person who could have challenged the absolute ownership of the plaintiff over the suit property, was his brother Arun Sinha but from the materials on record, it is quite apparent that the said Arun Sinha was neither recorded anywhere nor he ever raised any objection to the mutation of the name of the plaintiff with respect to the suit premises. In the said circumstances, without going into details with respect to the question of title, this court incidentally finds plaintiff’s title over the suit property for the purposes of this suit. 15. So far the third point raised by the petitioner is concerned, he is not claiming any title over the suit property, rather he claims to be a tenant of the owner of the suit property. In this regard he has claimed that Radhey Shyam Yadav (uncle of the plaintiff) was the original owner and Ram Pravesh Singh (father of the defendant) was the original tenant of the suit premises. In the said circumstances, after death of his father in the year 1997 defendant stepped into his shoes as a tenant. Furthermore, the admitted original owner having died issueless in the year 1998, his property had devolved upon his nephew, namely the plaintiff. It is not the claim of the defendant that after the death of the original owner-cum- landlord Radhey Shyam Yadav in the year 1998 the defendant had been paying rent to any other person as he is completely silent in his pleadings on the point as to who was his landlord after the death of Radhey Shyam Yadav in the year 1998. On the other hand, the plaintiff has produced Fair Rent Certificate dated 12.04.1999 (Ext.5) issued by House Controller, Sadar, Patna in B.B.C. Case No.88 of 1998 passed against the defendant. The relationship of landlord and tenant between the parties has also been sufficiently proved by the depositions of several witnesses, namely PWs.1, 5, 8 and 10 who gave reliable and consistent evidence in support of 9 the plaintiff. The defendant also while deposing as DW.11 admitted that the suit property belonged to the family of plaintiff and the said family was landlord of the suit premises and defendant was the tenant having lastly paid rent of the suit premises in the year 1998 to the plaintiff. In the said circumstances, court below has rightly come to the conclusion that there was relationship of landlord and tenant between the parties. 16. So far the fourth point raised by the petitioner is concerned, the plaintiff has been able to prove his bonafide personal requirement of the suit premises by his own deposition as PW.1 as well as the deposition of his wife, his son and his relative as PWs.5, 10 and 8 respectively. In Addition to that he has produced the certificates and Admit Card of his children as Exts.4, 7, 8 and 8/A clearly showing the necessity of the plaintiff for expanding his income. Furthermore, for proving bonafidee of his claim, the plaintiff has also produced the certificates granted by the institute and firm, namely Ext.3 and Ext.10 which showed that plaintiff’s wife was a certified expert in sewing, designing and embroidery etc. for which the plaintiff required the suit premises. Hence, the plaintiff has been able to prove the bonafide of his claim. So far the situation of the suit premises is concerned, the court below has rightly found the suit premises to be more appropriate for such a business being very close to Hathua Market and Lalji Market, where the requirement of sewing, designing and embroidery was most required. On the other hand, the defendant has miserably failed to disprove the plaintiff’s claim by any material whatsoever including Ext.A and B as well as any deposition. In the said circumstances, it is quite apparent that the personal necessity of the plaintiff for the suit premises is bonafide, reasonable and in good faith. 17. So far the fifth point raised by the petitioner is concerned, the trial court had framed a specific issue no.(vi) for considering the question whether partial eviction of the suit premises would satisfy personal requirement of the plaintiff and had considered the said question in detail in the last sub-paragraph of paragraph-6 of the impugned judgment and only thereafter he had come to the conclusion that partial eviction of the suit premises would not serve the 10 requirement of the plaintiff because the plaintiff required the front portion of the suit room as a shop with counters whereas the back portion of the suit room could be used as a workshop. Considering the nature of the plaintiff’s requirement as well as the area of the suit premises being 12 feet x 13 feet, this court does not find any reason to interfere with the aforesaid finding of the trial court. 18. Considering the entire facts and circumstances of the case as well as the materials on record and the principles of law applicable to the case, this court does not find any illegality in the impugned order of eviction passed by the trial court nor does it find any merit in the instant civil revision, which is accordingly dismissed. However, in the facts and circumstances of this case there will be no order as to cost. Patna High Court, (S.N. Hussain, J.) Dated 4th August, 2010 N.A.F.R. Sunil/harish