IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.87 of 2010 Shailendra Kumar, son of Shri Tila Das @ Tela Das, resident of village Kanti Kushi, P.S. Kanti, District Muzaffarpur. …….Defendant-Respondent-Appellant. Versus Ram Chandra Prasad Gupta, son of Late Baidyanath Prasad, resident of village Kanti, P.S. Kanti, District Muzaffarpur. ……Plaintiff-Appellant-Respondent. For the appellant : Mr. Navendu Kumar, Advocate. For the respondent : None. ----------- 05/ 12.05.2010 Heard learned counsel for the appellant. 2. This second appeal has been filed by defendant- respondent-appellant challenging the judgment and decree of the court of appeal below. 3. The matter arises out of Eviction Suit No.04 of 1992 which was filed by the sole original plaintiff Mostt. Rampati Kuer for eviction of the sole defendant-respondent from a shop measuring 23 feet x 10 feet detailed in Schedule-I of the plaint on the ground of bonafide personal requirement of her son Ram Chandra Prasad Gupta for whose benefit she held the suit premises as land lady. The said suit was dismissed on contest by Munsif, West, Muzaffarpur, vide his judgment and decree dated 28.02.1998. 4. Against the said judgment and decree of the trial court plaintiff filed Eviction Appeal No.04 of 1998. A cross objection was filed by defendant in the said eviction appeal against issue no.(iii) of the trial court by which the trial court held that 2 there was relationship of landlord and tenant between the parties. The said appeal was allowed and cross objection was dismissed by 4th Additional District Judge, Muzaffarpur vide his judgment and decree dated 27.10.2009 setting aside the judgment and decree of the trial court and decreeing the suit for eviction filed by the plaintiff. 5. Learned counsel for the defendant-appellant vehemently challenges the aforesaid judgment and decree of the court of appeal below raising five points. The first point raised by learned counsel for the defendant-appellant was that the original plaintiff did not come to depose as a witness in the suit and hence her claim in the plaint was not proved. He relied upon two decisions of the Apex Court and one decision of this court in case of Vidhyadhar vs. Mankikrao and another, reported in AIR 1999 Supreme Court 1441 and in case of Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others, reported in AIR 2005 Supreme Court 439 as well as in case of Rajmuni Devi vs. Smt. Shyama Devi & ors., reported in AIR 2007 Patna 142. The second point raised by learned counsel for the defendant-appellant was that the plaintiff having sold the suit premises in the year 1996 during the pendency of the eviction suit, there was no question of any bonafide requirement of the plaintiff or her son. The third point raised by learned counsel for the defendant-appellant was that the report of the Pleader Commissioner although relied by the trial court, was discarded by 3 the lower appellate court, although it was not even protested and adverse inference was drawn against the Pleader Commissioner. The fourth point raised by learned counsel for the defendant- appellant was that the findings and the basis of conclusion of the trial court were reversed by the lower appellate court without any cogent reason. The fifth point raised by learned counsel for the defendant-appellant was that the plaintiff had opened a shoe shop in one of the vacant shops during the pendency of the suit and hence there was no question of any bonafide personal requirement due to which the trial court dismissed the eviction suit, but the lower appellate court without appreciating the said fact reversed the judgment and decree of the trial court. 6. From the arguments raised as well as from the materials on record, including the impugned judgments and decree of the courts below, it is quite apparent that both the courts below arrived at concurrent findings of fact that there was relationship of landlord and tenant between the parties. The said findings are based on the pleadings and evidence of the parties and no illegality could be shown therein. Hence, this court in a second appeal under section 100 of the Code of Civil Procedure cannot legally interfere with such concurrent findings of fact. 7. So far the first question raised by learned counsel for the defendant-appellant is concerned, it is not in dispute that plaintiff did not come to depose as a witness, but it is quite apparent from the pleadings and evidence of the parties that the 4 suit was filed by the original plaintiff for eviction of the defendant from the suit premises on the ground of personal requirement of her son Ram Chandra Prasad Gupta for whose benefit she held the suit premises as land lady and the said Ram Chandra Prasad Gupta had himself deposed as PW.1 proving the claim raised in the plaint to its hilt. In this regard, reference may be made to a decision of this court in case of Krishna Kant Pandey and anr. vs. Suniti Bala Sarkar, reported in 1988 PLJR 255 in which it was specifically held that in such cases no adverse inference can be drawn from non-examination of the plaintiff landlord. Learned counsel for the defendant-appellant has relied upon a decision of the Apex Court in case of Vidhyadhar (supra), but the said decision is based on completely different facts as in that case the point in issue was with respect to a sale deed executed by the plaintiff and hence the said executant was a necessary party to prove the said document and no other person who was not executant of the said sale deed could depose on behalf of the plaintiff. The other decision of the Apex court in case of Janki Vashdeo Bhojwani and another (supra) as well as of this High Court in case of Rajmuni Devi (supra) are with respect to Power of Attorney and it was held that holder of Power of Attorney can depose as a witness, but he cannot depose in place of the plaintiff. But in the instant case the matter is completely different as it is not a case of Power of Attorney, rather it was filed by the plaintiff on the ground of personal requirement of her son Ram Chandra 5 Prasad Gupta for whose benefit she held the suit premises as the land lady and hence the best person to depose and support the claim of the plaint was the said son Ram Chandra Prasad Gupta who had come before the court and deposed as PW.1. 8. So far the second point raised by learned counsel for the defendant-appellant with regard to sale of the suit premises in the year 1996 by the plaintiff in favour of Nagendra Das is concerned, the said sale deed alleged to have been executed during the pendency of the suit, was never produced before the trial court or even before the lower appellate court, although the registration of such documents had a legal presumption that it is known to all. Hence at this stage such a plea cannot be allowed to be raised. However, in any view of the matter it is not clear from a copy of the said sale deed dated 19.01.1996 that it was with respect to the same property. Hence, this ground also does not find favour. 9. So far the third point raised by learned counsel for the defendant-appellant with regard to report of the Pleader Commissioner is concerned, such a report has got merely an evidentiary value which has to be considered along with other evidence of the parties and hence the lower appellate court was quite justified in considering the same along with other evidence and on the basis of the pleadings and evidence of the parties found the said report not to be trustworthy and decided the matter against the said report. This court does not find any illegality in the same. 10. So far the fourth point raised by learned counsel 6 for the defendant-appellant is concerned, it is quite apparent that the finding and conclusions of the trial court did not find favour of the court of appeal below, but from a perusal of the judgments of the courts below it is quite apparent that the court of appeal below has come to its specific findings after considering the specific pleadings and evidence of the parties. In the said circumstances, the said judgment and decree of the court of appeal below was quite legal and proper. 11. So far the fifth point raised by learned counsel for the defendant-appellant is concerned, the lower appellate court has very carefully considered the same and found that the original plaintiff Mostt. Rampati Kuer had died during the pendency of the title appeal, whereafter her son Ram Chandra Prasad Gupta had been impleaded in her place and he had two sons out of whom one son had been doing shoe business in another shop which was vacated during the pendency of the instant eviction suit and hence the suit shop was still required by the said Ram Chandra Prasad Gupta for opening a kirana shop as claimed by the plaintiff. Furthermore, the court of appeal below relied upon a decision of the Apex Court as well as a decision of this court in case of Surajmal vs. Radhey Shyam, reported in 1988 BBCJ (SC) 96 and in case of Madhusudan Prasad Agarwal vs. Smt. Shusma Bala Dasi and another, reported in AIR 1979 Patna 6 in which it has been held that the necessity of landlord is to be found as on the date of filing of the suit which is in this case was 27.07.1992. 7 In the said circumstances, the said point raised by learned counsel for the defendant-appellant also fails. 12. Furthermore, the court of appeal below considered the entire matter in detail and held that the plaintiff had personal bonafide requirement of the suit premises and was entitled to choose her choicest accommodation to which the defendant cannot legally raise any objection. Moreover, the suit premises has an opening of 10 feet and depth of 23 feet and in the said shop room the plaintiff-respondent wants to open his kirana shop which requires spaces for storage, show-cases and selling space and hence the requirement of the plaintiff-respondent would not be satisfied by any partial eviction of the defendant-appellant from the suit premises. 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. harish/ ( S. N. Hussain, J. )