IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1787 of 1998 1. Ram Pravesh Sahu, son of Late Sri Hazari Sahu. 2. Smt. Neelam Devi, W/o Rajendra Sahu and daughter of Late Sri Hazari Sahu (wrongly named as Neela Devi in the plaint) 3. Most. Saraswati Devi, widow of Late Sri Rameshwar Sahu. All residents of Mohalla-Kotwali Chowk, Parganna-Haweli, P.S.- Town Darbhanga, District-Darbhanga. (Defendant no. 1 to 3, as defendant. 1st Party of the Ev. Suit) ………………….. (Defendants) Petitioners Versus 1. (i) Most. Sharda Devi, W/o Lakshmi Mahto. (ii) Raj Narayan Mahto. (iii) Raj Kumar Mahto. Both sons of Lakshmi Mahto, resident of Mohalla-Mauleganj, Parganna-Haweli, P.S.-Laheriasarai, District-Darbhanga. …………….(Plaintiff) Opposite Party 1st set. 2. Jagdish Nayak, son of Late Sri Jokhan Nayak, resident of Mohalla-Sonapat, Parganna-Haweli, P.S.-Town Darbhanga, District-Darbhanga. ……………. (Plaintiff) Opposite Party 2nd set. 3. Raj Kumar Nayak, son of Late Sri Jokhan Nayak, Proprietor of Reeta Medical Hall. 4. Chunchun Thakur, son of Mahendra Thakur, Proprietor of Sunita Hair Style. 5. Pawan Bhagat, son of Vishwanath Bhagat, proprietor of Pawan General & Fancy Stores. All at Mohalla-Kotwali Chowk, Naka No. 6, P.S.-Town Darbhanga, (Defendant no. 3 to 5 in the suit) …………… Defendants) Opposite Party 3rd set. ----------- 15 18/9/2009 Heard counsel for the parties. This Civil Revision Application is directed against the judgment and order dated 24.5.1997/4.6.1997 passed in Eviction Suit No. 30 of 1992, decreeing the suit for eviction against the defendants-petitioners with a direction to vacate the suit premises within a period of sixty days from the judgment. Counsel for the defendants-tenants-petitioners has raised three issues, namely: (i) that the finding on the issue of relationship of landlord and tenant is perverse, cryptic and non- speaking. (ii) that the issue of personal necessity has not been 2 gone into in a detailed manner and as such its finding is not objective. (iii) that the issue of partial eviction has not at all been considered by the court below. On the other hand, counsel appearing on behalf of the plaintiffs-opposite parties has submitted that the said eviction suit was heard and adjudicated with Title Suit No. 1 of 1995 and both of them have been disposed of by a common judgment dated 24.5.1998 and whereas title suit filed by the petitioners claiming title of the tenanted premises has been dismissed, the title suit filed by the plaintiffs-opposite parties seeking the relief of eviction had been decreed. It has also been submitted the petitioner appeals Title Appeal No. 11 of 1997 against that part of the judgment of the trial court in Title Suit No. 1 of 1995 has been also dismissed by the lower appellate court which is now the subject of a pending second appeal before this Court in S.A. No. 19/2004 and as such the findings of facts on the issue of title of the suit property in the eviction suit is in favour of opposite party. He has further submitted that as the petitioners had concentrated in getting their title of the suit promises declared I their favour without contesting the plea of personal necessity of the opposite parties raised in their eviction suit, the petitioners can question the findings in this regard in the civil revision application. He has also taken a stand that the petitioners had also not raised a plea of fulfillment of their need by their partial eviction and as such the trial court did not commit any error in not recording any finding on this aspect. 3 Having given anxious consideration to the aforesaid submissions of counsel for both the parties as also taking into account the evidence on record the court must hold the findings of facts on the issue of relationship of landlord of the opposite party and tenant stand concluded in favour by the judgment of lower appellate court in Title Appeal No. 11 of 1997 affirming the judgment and decree dated 24.5.1997/6.5.1997 of the trial court and unless such concurrent findings of fact are set aside on any substantial question of law the pending S.A. 19 of 2006 by this Court the opposite parties must be held to be the landlord and the petitioners their tenant. This court taking into account but the eviction suit was filed in 1992 on the ground of personal necessity by the opposite parties, it would not keep the matter pending only on account of filing of S.A. 19 of 2004 by the petitioners. Similarly the petitioners infact having not even contested the eviction suit of the opposite parties on the ground of personal necessity cannot now question the findings in favour of the opposite parties in the impugned judgment in this regard specially when they had not even refuted and/or denied such plea of the opposite parties in their written statement filed in Eviction Suit nor had led any evidence on the score. Thus the unrebutted plea of the opposite parties in their plaint in the eviction suit read with their evidence in support of their specific case of eviction of the petitioner on the ground of personal necessity can not be allowed to be reopened in Civil Revision Application specially 4 when this Court has also not found any error in the findings on the head of personal necessity of the opposite parties in the impugned judgment. This Court however finds merit in the last submissions of the learned counsel for the petitioners as with regard to the impugned judgment being bad in absence of any finding on the issue of partial eviction. Under the proviso of section 11 (1) (c) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the B.B.C. Act) it is infact mandatory on the part of the court to consider the issue of partial eviction by recording a finding as with regard to reasonable requirement of such occupation of the plaintiff landlord being satisfied by evicting the tenant from the part only of the building. Counsel for the petitioners-plaintiffs-opposite parties also does not dispute this position that the issue of partial eviction has not at all been decided, but then he has submitted that as there was no pleading on this score made by either of the parties, it was wholly discretionary for the court below to consider the question of partial eviction. In the considered opinion of this Court the said stand of the opposite parties, the plaintiffs in the eviction suit can not be accepted in view of the following provisions under Section 11(i)(c) of the B.B.C. Act which reads as follows.:- “Eviction of tenants – (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree 5 passed by the Court on one or more of the following grounds:- (a)------------------- (b)------------------- ( C )Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord. Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the building within the meaning of Clause (b) of section 2 and the rent so fixed shall be deemed to be the fair rent fixed under section 5.” (d)----------------------- (e)----------------------- (f)------------------------ (g)------------------------ From reading of the aforementioned proviso of section 11 (c), it becomes clear that before a tenant is evicted on the ground of personal necessity of landlord a specific finding has to be recorded on the issue of partial eviction. This aspect of the matter is no longer resintegra inasmuch as both the Apex Court in the case of „Krishna Murari Prasad Vs. Mitar Singh‟ reported in 1994 B.B.B.C.J. (SC) 37 and this Court in the case of Smt. Panna Devi and ors. Vs. Atma Ram reported in 1996(1) B.L.J. 523 has held that an eviction suit under the B.B.C. Act on the ground of personal necessity can not be allowed without recording a finding on partial eviction. . Thus this court without disturbing with the findings on 6 the court below in the impugned judgment on the issue of landlord-tenant relations by or personal necessity in favour of the opposite parties and against the petitioners would remit the matter to the court below only for rehearing of the suit only on the limited question of partial eviction. For that purpose the court below will give a month’s time from the date of receipt/production of a copy of this order to the plaintiffs-opposite parties to introduce any further pleadings in the plaint only on the issue of partial eviction and the court below will give exactly same time of one month to the defendants-petitioners to file his additional written statement confining him again to the issue of partial eviction only and thereafter the parties will be given time to lead their evidence, oral and documentary, only on the issue of partial eviction and such evidence must be completed by both the parties within a period of two months, each parties having only one month for adducing such evidence. Argument on the issue of partial eviction also must be concluded within a period of one month from the date of adducing of evidence by the parties and the finding as with regard to partial eviction shall be recorded by the court below within a period of six weeks on closing of the argument by both the parties and the parties will have an opportunity to assail such findings on partial eviction only before this Court in a Civil Revision Application under Section 14(8) B.B.C. Act, which taking into consideration that it is an eviction suit of 1992 only on the ground of personal necessity will be 7 decided expeditiously. This Civil Revision Application is accordingly disposed of in the light of aforesaid observations and directions. Abhay Kumar (Mihir Kumar Jha, J.)