IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.294 of 2009 1. Gulam Rasul 2. Md. Aslam 3. Roshan Ali 4. Md. Firoz 5. Md Azad All sons of Late Saghir Ahmad @ Sagir Ahmad resident of Peace Cottage, Golghar P.S. Gandhi Maidan Dist. Patna Defendants-Respondent-Appellants Versus 1. Mrs Azra Khatoon w/o Abdul Quadir presently residing at Mohalla Khan Mirza P.S. Sultanganj Dist. Patna 2. Mrs Nuzhat Ara w/o Basiruddin resident of Mohalla Golghar P.S.Gandhi Maidan Dist. Patna 3. Mrs Shaheda Khatoon w/o Md Sultan Alam 4. Mrs Anjum Ara w/o Nasihul Abedin Both residing at Sandal Nagar Colony P.S.Sultanganj, Dist. Patna 5. Mrs Jahan Ara w/o Shahid Iqbal resident at Village Kandhaipur P.S. Town Barh, Dist. Patna 6. Bibi Aliman w/o late Sheikh Abdul Halim resident of Mohalla Golghar P.S.Gandhi Maidan Dist. Patna Plaintiffs-Appellants- Respondents ------------- For the Appellants: Mr Arun Kumar, Advocate Mr Vikash Kumar, Advocate For the respondents: Mr Raghib Ahsan, Sr. Advocate Mr Anjum Akhtar, Advocate ------------- 13/ 03.05.2010 Heard learned counsel for the appellants and learned counsel for the respondents. 2. This second appeal has been filed by the heirs of the deceased sole defendant-respondent- appellants challenging the judgment and decree of the court of appeal below. 3. The matter arises out of Eviction Suit no.33 of 1998 which was originally filed by respondent nos. 1 to 5 for eviction of the original defendant on the ground of their bonafide personal requirement claiming that the suit property originally belonged to their mother Bibi - 2 - Aliman who gifted the same to the plaintiffs by oral gift dated 01.07.1994. Subsequently the said mother Bibi Aliman was also added as plaintiff no.6 in the suit supporting the claim of the remaining plaintiffs. The said suit was dismissed on contest by Munsif III, Patna vide his judgment and decree dated 16.04.2003. 4. Against the said judgment and decree of the trial court, the plaintiffs-appellants filed Title Appeal no.17 of 2003 which was allowed by Additional District Judge-cum- Fast Track Court No. V, Patna, vide his judgment and decree dated 30.04.2009, setting aside the judgment and decree of the trial court and allowing the suit and claim of the plaintiffs. Against the aforesaid judgment and decree of the court of appeal below instant second appeal has been filed. 5. Learned counsel for the appellants insists that this second appeal is maintainable against order of eviction passed by the court of appeal below and a revision under the Proviso to section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as “the Act” for the sake of brevity) was not maintainable as there is no provision in the said section for a revision against appellate order. 6. A plain reading of section 14(8) of the Act along with its proviso reveals that no appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in section 14 of the Act. However the procedure specified in the said section is only with regard to a suit and not with regard to an appeal. - 3 - 7. Thus after dismissal of a suit for eviction on the grounds specified in sections 11(c) and 11(e) of the Act the only remedy left for the plaintiff-landlord is to file an appeal under section 96 of the Code of Civil Procedure (hereinafter referred to as “the Code” for the sake of brevity) and when such an appeal is allowed by the appellate court the remedy left for the aggrieved defendant- tenant is only under section 100 of the Code and there is no question of reverting back to section 14(8) of the Act as by no stretch of imagination, the appellate order or decree can legally be deemed to be an order for recovery of possession within the meaning of section 14(8) of the Act. This view finds support from a decision of the Apex Court in the case of Ram Prasad Rajak vs. Nand Kumar and Bros. and another reported in AIR 1998 Supreme Court 2730.Hence this second appeal is maintainable. 8. So far the merit of this second appeal is concerned, learned counsel for the appellants vehemently challenges the aforesaid judgment and decree of the court of appeal below on the grounds that with respect to the claim of the original plaintiffs the subsequently added plaintiff had filed her written statement regarding the alleged bonafide requirement of plaintiff nos. 1 and 2 and that the alleged requirement was not bonafide as the said plaintiff nos. 1 and 2 were residing in the house of their mother and sister instead of any rented house as claimed by them. 9. However, from the materials on record including the judgments and decree of the courts below, it is quite apparent that original plaintiffs had claimed that the suit house was given to them by their mother Bibi Aliman by oral gift dated 01.07.1994 and the said claim was supported - 4 - by their mother Bibi Aliman who was subsequently added as a co-plaintiff and filed her written statement supporting the claim of her daughters. The court of appeal below has considered the said aspect of the matter in considerable detail and has incidentally found that the said oral gift having fulfilled the requirement of Mohammemdan law was legal and valid, according to which original plaintiffs had acquired title over the suit property. 10. So far the question of relationship of landlord and tenant is concerned, defendant has admitted that he was tenant of plaintiff no.6 Bibi Aliman in the suit premises and has been paying rent to her even after the aforesaid oral gift dated 01.07.1994. However, since ownership of the suit property was transferred by gift dated 01.07.1994 in favour of the original plaintiffs, they were fully entitled to file a suit for eviction on the ground of personal necessity as acceptance of rent by Bibi Aliman even after oral gift can only be deemed to be on behalf of the donees in view of close relationship between them and the admission of Bibi Aliman with respect thereto. 11 So far the question of personal necessity is concerned, although plaintiffs raised elaborate claims, but even as per the defendants’ claim, plaintiff nos. 1 and 2 for whose necessity the suit premises was required, were residing in the house of their mother, plaintiff no.6 or in the house of their sister plaintiff no.5 but admittedly, there is no claim of the defendant that the plaintiff nos. 1 and 2 had any other house of their own except the suit house. Furthermore plaintiff nos. 1 and 2 have to live with their families including their husbands and hence it is quite natural that they - 5 - would like to live in their own house for which they had raised their bonafide personal requirement. In the said circumstances, the court of appeal below was quite justified in arriving at the finding on the basis of pleadings and evidence of the parties that plaintiff nos. 1 and 2 required the suit premises for their bonafide personal requirement. 12. So far the question of partial eviction is concerned, it is quite apparent that the suit premises is just sufficient for the requirement of plaintiff nos. 1 and 2 who want to live with their respective families and partial eviction of the defendants from the suit premises would not satisfy their requirement. 13. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment and decree of the court of appeal below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) shahid