IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.549 of 2010 1. MD. SAHABUDDIN ANSARI, SON OF LATE ZAFAR ANSARI. 2. MD. ZEYAUDDIN ANSARI, SON OF LATE ZAFAR ANSARI. 3. MD. GHEYASUDDIN ANSARI, SON OF LATE ZAFAR ANSARI. ALL ARE RESIDENTS OF MOHALLA-BARHAMPURA, P.S.- BARHAMPURA, P.O.- M.I.T., DISTRICT-MUZAFFARPUR. ……………………………………DEFENDANT-PETITIONERS. Versus 1. SYED HASAN JAFRI, SON OF LATE MAULVI NAQUI HASAN, RESIDENT OF MOHALLA-BARHAMPURA, TOWN AND P.S.- BARHAMPURA, DISTRICT- MUZAFFARPUR. ……………………….PLAINTIFF-OPP. PARTY 1ST PARTY. 2. BIBI BATULAN ARA, WIDOW OF LATE ZAFAR ANSARI, RESIDENT OF MOHALLA-BARHAMPURA, P.S.- BARHAMPURA, P.O.- M.I.T., DISTRICT-MUZAFFARPUR. ……………………...DEFENDANT-OPP. PARTY 2ND PARTY. ----------- For the Petitioners : M/s. Gyanand Roy & Sheonandan Mishra, Advocates. For the Opposite Parties : M/s. T.N. Matin, Senior Advocate & Sudodh Kumar No.1, Advocate. ---------- 10. 15.2.2011. This Civil Revision is directed against the judgment and order dated 19th of March, 2010, passed by the Special Execution Munsif, Muzaffarpur, in Eviction Suit No.28 of 1988, whereby the petitioners have been directed to vacate the suit premises and deliver the vacant possession of the same to the plaintiff-opposite party. 2 The plaintiff had brought the suit for eviction of the original defendant from the suit premises, described in Schedule-I to the plaint. During the pendency of the suit, the original defendant, Md. Zafar Ansari, had died and in his place, his widow, Bibi Batulan Ara and sons, i.e., the petitioners, were substituted and they had filed their written statement also. The widow of the deceased, the original defendant, namely, Bibi Batulan Ara, has not joined as a petitioner rather she has been impleaded as opposite party no.2. It has been jointly urged on behalf of the parties that Bibi Batulan Ara, after her substitution, had filed written statement clearly stating therein that her relationship with her husband, i.e., the original defendant, were not cordial and, thus, she was not living with her husband in the suit premises at all and in such case, she after filing written statement has not contested the suit by examining any witness or in any manner. It has also been jointly urged on behalf of the parties that as she was not living with her husband in the suit premises, therefore, there is no question of her eviction from the suit premises. In the above view of the matter, it has been jointly urged on behalf of the parties that no notice is required to be issued upon the opposite party no.2, namely, Bibi 3 Batulan Ara as she is merely a proforma opposite party. In the aforesaid facts and circumstances, no notice has been issued to the opposite party no.2. The short facts, which are necessary for consideration of this case, are as follows: The plaintiff has come up with the case that the suit premises belonged to his father, who had inducted the original defendant, namely, Md. Zafar Ansari (since deceased) as a tenant at the rent of Rs.90/- per month. Thereafter, the plaintiff and his brothers have partitioned the entire property by way of executing registered deed of partition dated 12.5.1986, which has been brought on record as Ext.1 and in the partition, the suit premises alongwith the land adjacent to it has been allotted to the plaintiff. The plaintiff claims to be a Bank Manager, posted at Dhanbad. However, since he had got only one room in the residential house, he was facing trouble and inconvenience due to lace of accommodation in Muzaffarpur. He wished that his children should study at Muzaffarpur itself so that his wife also could remain and reside there and look after the agriculture operation in Village-Bakhri. However, due to lack of accommodation there, she had to shift at Dhanbad and education of his 4 children and agriculture both have suffered. Subsequently, the plaintiff brought amendment setting out the fact that during the pendency of the suit though the plaintiff’s children have completed their education, but the plaintiff has superannuated from the bank service and prefers living at Muzaffarpur alongwith his wife to look after his agriculture and in that view of the matter, the plaintiff’s bonafide reasonable requirement of the suit premises continues. According to the plaintiff, after the partition in the family, a request was made to the defendant to vacate the suit premises but the defendant did not oblige. When the defendant did not vacate the suit premises lastly on 9.4.1988, the present suit by the plaintiff for eviction of the defendant on the ground of bonafide personal requirement of the suit premises has been filed. The original defendant, Md. Zafar Ansari, had filed written statement. However, he had died during the pendency of the suit and his legal representatives were substituted in his place. Defendant no.1 filed written statement separately stating therein that she was not living with her husband in the suit premises. Therefore, there is no question of her eviction from the suit premises. Defendant nos.2 to 4 filed their written statement jointly. The defendants have questioned the 5 so called partition between the plaintiff and his brothers and allotment of the disputed suit property to him. They also denied that the plaintiff has got only one room in the residential house gifted to the plaintiff by his father and also that the plaintiff was facing any lack of place of accommodation rather they claimed that the plaintiff has been gifted two plots containing residential house having several rooms out of which some rooms are still vacant. That apart, it has also been urged by them that the plaintiff and his family members were presently residing at Dhanbad. Therefore, there is no question of any reasonable requirement of the suit premises to the plaintiff. On the point of the pleadings of the parties, in all, six issues were framed by the trial court. The trial court after appreciation of materials on record including the evidence led on behalf of the parties has recorded a finding that there existed a landlord and tenant relationship between the parties and the plaintiff was facing lack of accommodation and, thus, was in bonafide need of the suit premises for his personal use. The trial court has also held that in view of the requirement of the suit premises by the plaintiff for his personal occupation as his residence, that cannot be satisfied by effecting partial 6 eviction of the defendants from the suit premises. Thus, the claim of the plaintiff has been allowed and the defendants have been directed to vacate the suit premises and deliver the vacant possession to the plaintiff. I have heard the parties and perused the records of this case. It has been submitted on behalf of the defendants- petitioners that the plaintiff is a big landlord of Nawab Clan having several accommodations in Muzaffarpur and adjacent places and, thus, he cannot be held to be in dire need of the suit premises for his personal occupation. It has also been submitted that the suit would fail on account of the non joinder of the necessary party inasmuch as other co-sharers, i.e., the brothers of the plaintiff, have not been impleaded as a party in the suit. The brothers have not come in support of the alleged partition by execution of a registered deed, whereby the plaintiff claims that the suit premises and the open land adjacent to it has been allotted to him. That apart, it has also been submitted that the question of partial eviction has also not been dealt with by the trial court in its proper perspective as per the mandate of Section 11(C) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. 7 On the other hand, learned counsel appearing on behalf of the plaintiffs-opposite parties submitted that a tenant, if he does not claim his own title upon the suit premises, cannot challenge the partition achieved by a execution of registered deed and in view of the fact that the registered partition itself has been brought on record as Ext.1, the trial court has correctly held that there existed a landlord and tenant relationship between the plaintiff and the defendants. It has further been submitted that it is well settled that the eviction suit cannot be dismissed on the ground that one of the co-sharers have either not been impleaded as a party in the suit as one of the co-sharers or the co-parcener is competent to file a suit for eviction. So far as the partial eviction is concerned, it is submitted on behalf of the plaintiff-opposite parties that the trial court has dealt with this aspect by taking up the same as a separate issue and held that no purpose would be solved by partial eviction of the tenant. It has further been submitted that the defendants have neither pleaded nor have come up with the case during their cross examination as a witness that their purpose or plaintiff’s purpose would be served by their partial eviction from the suit premises. Learned counsel had placed reliance upon the 8 decisions of this Court rendered in Dr. Manchan Shin Vs. Purshottam Das Tondon {2010(2) PLJR 761} and Chandradeep Kumar Vs. Gatrumal Kanodia {2010(3) PLJR 483}. It has also been urged that after amendment of plaint to the effect that the plaintiff has superannuated from service and now wants to reside at Muzaffarpur, thus, the personal requirement of suit premises still exists, no suitable amendment has been brought in the written statement challenging the aforesaid averment. I find force in the submissions raised on behalf of the plaintiff-opposite parties. The trial court has deeply scrutinized the pleadings and the evidence on records and has recorded a finding that in view of the registered deed of partition , which has been brought on record as Ext.1 and also in view of the fact that the defendants themselves have not claim any title over the suit property, it would not be open for them to challenge the mode of partition in the family of the plaintiff in the suit for eviction and since they admittedly are the tenants, the relationship of landlord and tenant between the parties stands established. On the point of alternative accommodation of the plaintiff, upon appreciation of evidence, the trial court has come to the 9 conclusion that besides the suit premises, the plaintiff has a small house of two rooms, which cannot be held to be sufficient accommodation for him, his wife, three sons and a daughter and, thus, in the opinion of this Court, it has correctly come to the conclusion that the plaintiff has not sufficient accommodation for himself and his family and, thus, he has bonadife reasonable personal requirement of the suit premises. Learned counsel for the petitioners could not demonstrate from the pleadings and the evidence of the parties even before this Court that the plaintiff was having sufficient alternative accommodation and the trial court’s finding in this regard suffers from any error. The trial court has also considered that the suit premises is having five rooms and the plaintiff, his wife, three sons and a daughter, in all, become family of six members. Therefore, no purpose would be solved by partial eviction of the defendants from the suit premises, specially since the same is being required by the plaintiff for his residential purpose. That apart, learned counsel for the petitioners could not demonstrate before this Court that any plea of partial eviction has been taken by the defendants in their pleadings or any evidence to that effect has been adduced to show that partial eviction would satisfy the 10 plaintiff’s requirement. In similar circumstances, the learned Single Judge of this Court in Dr. Manchan Shin Vs. Purshottam Das Tondon (Supra) and Chandradeep Kumar Vs. Gatrumal Kanodia (Supra) has come to the conclusion that the defendants are not legally justified in raising such plea at the revisional stage. In the above view of the matter, in the opinion of this Court, the defendants-petitioners could not make out a case for interference by this Court in the impugned judgment/order in its revisional jurisdiction. As a result, this Civil Revision fails and is, accordingly, dismissed. There would be no order as to costs. P.S. ( Dr. Ravi Ranjan, J)