CIVIL REVISION No. 850 OF 2008 *** Deena Nath Prasad, son of Late Janak Prasad, resident of Kesharia Purani Bazar, P.O. & P.S. Kesharia, District East Champaran. ……..Defendant-Petitioner. Versus Smt. Roopa Devi, wife of Late Kamta Prasad Jaisawal, resident of Kesharia Purani Bazar, P.O. & P.S. Kesharia, District East Champaran. ……..Plaintiff-Opposite party. For the petitioner : M/s Arjun Kumar and Alok Kumar, Advocates. For the opposite party : Mr. Binod Kumar Singh, 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 on behalf of defendant-petitioner under the Proviso to sub section 8 of Section 14 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’ for the sake of brevity) against the order of his eviction vide judgment dated 29.03.2008 by which the learned Munsif, Sadar, Motihari, East Champaran decreed Eviction Suit No.18 of 2002 and directed the defendant-petitioner to hand over the possession of the suit premises to the plaintiff-opposite party. 2. The aforesaid suit was filed by the plaintiff-opposite party for eviction of the defendant-petitioner from the suit premises, which was a shop room, on the grounds of her bonafide personal requirement as well as the expiry of the fixed period of lease as per the deed of lease and for other ancillary reliefs. 3. The claim of the plaintiff is that she was the widow of the original owner Late Kamta Prasad Jaiswal and had inherited the suit premises from him in which the defendant was a tenant at the rent of Rs.500.00 per month and was running his jewellery shop. It was also claimed by the plaintiff that an agreement for eleven months lease was executed in favour of the defendant according to which the tenancy started from 01.12.1993 and was to expire on 31.10.1994 but even after expiry of the said period the defendant did not vacate the suit premises as per the terms of the deed although there was neither any extension of the said lease nor there was any fresh lease and continued in possession thereof. 2 4. The plaintiff also claimed that her husband Kamta Prasad Jaiswal had died and she had only two daughters, who were married and were living with their respective husbands far away and hence for maintaining herself she wanted to start her own business in the suit premises with the help of her grand son (Nati) Prakash Chandra Jaiswal (PW.3), who was idle and was living with the plaintiff. It was also claimed that the income from the rent was not sufficient for her maintenance and daily expenses. 5. The sole defendant appeared and contested the claim of the plaintiff stating that there was no relationship of landlord and tenant between the parties as the defendant was the tenant of her husband Kamta Prasad Jaiswal, who had taken an advance of Rs.50,000.00 at the time of creation of tenancy which was permanent. The defendant completely denied the execution of any deed of lease for eleven months stating that the said original owner Kamta Prasad Jaiswal had assured the defendant that he may keep the suit shop as he had no son and his two daughters already had several shops. With regard to the plaintiff’s claim of personal necessity, it was averred by the defendant that the plaintiff had no personal necessity as both her daughters were married in well of families and had several shops. It was also claimed that plaintiff was an old lady and the rent from the shop was sufficient for her maintenance but since the defendant had rejected her demand of Rs.1, 00,000.00 as Pagari and Rs.1,000.00 per month as rent, the instant suit was frivolously filed. 6. After considering the respective pleadings of the parties the learned court below framed the following issues for deciding the suit : (i) Is the suit as framed maintainable? (ii) Has the plaintiff got cause of action and right to sue? (iii) Is there any jural relationship of landlord and tenant between the parties? (iv) Is the suit premises required by the plaintiff bonafidely, reasonably and in good faith for her personal necessity and fixed term lease? (v) Whether the requirement of the plaintiff will be satisfied by partial eviction? (vi) Is the plaintiff entitled for the decree as claimed? (vii) To what other relief or reliefs the plaintiff is entitled? 3 7. In support of the plaintiff’s claim on the aforesaid issues, seven witnesses deposed in the case, out of whom PW.6 was the plaintiff Roopa Devi herself and PW.3 Prakash Chandra Jaiswal was her grand son (Nati). Apart from the said oral evidence the plaintiff produced two documentary evidence out of which Ext.1 was the original lease agreement dated 22.11.1993 executed by the husband of the plaintiff as well as by the defendant, whereas Ext.2 was advocate notice dated 29.07.2000 sent on behalf of the plaintiff to the defendant for vacating the suit premises and for paying Rs.50.00 per day as damages for illegal retention of the suit shop after expiry of the lease. 8. On the other hand, defendant examined ten witnesses out of whom DW.9 was the defendant himself. However, no documentary evidence was produced by the defendant. 9. After considering the pleadings and evidence of the parties the learned court below decreed the suit vide the impugned judgment dated 29.03.2008 after arriving at the following findings: (a) From the evidence of the parties it transpires that relationship of landlord and tenant between the parties to the suit is admitted. (b) Ext.1(the deed of lease) is a genuine document, although the defendant has denied the same but it is fully proved by its attesting witnesses, who are PWs. (c) It is also crystal clear that the defendant was occupying the suit premises on the basis of the said deed of lease (Ext.1) and he has not produced any other document and hence he has to act according to Ext.1 and any default in its terms and conditions would be breach of the term of tenancy. (d) The plaintiff has established her personal necessity for the suit premises and hence choice of suitable accommodation will be as per her discretion alone. (e) The question of payment of advance raised by the defendant is not tenable in such cases, as he will be at liberty to file money suit for any such money. (f) The defendant is month to month tenant of the plaintiff and is liable to be evicted from the suit premises on the said ground. (g) Although the plaintiff is an old woman but she can carry out her business with the help of her grand son (Nati). 4 (h) The evidence on record shows that the plaintiff’s requirement cannot be served by partial eviction as she has bonafide need of the entire suit premises. (i) The plaintiff is entitled for the relief as claimed by her. (j) The plaintiff has got valid cause of action for the suit. (k) Present suit as framed is maintainable. (l) The plaintiff is not entitled to any other relief or reliefs except the relief she has claimed for. 10. The aforesaid judgment of the learned trial court has been challenged by the defendant-petitioner in the instant civil revision. It may be noted that the defendant- petitioner has not challenged before this court, the finding of the trial court with regard to the relationship of landlord and tenant between the parties. However, the defendant- petitioner has challenged the other findings of the learned court below, specially the findings with regard to the personal necessity of the plaintiff-opposite party and also with regard to the question of partial eviction. 11. Learned counsel for the defendant-petitioner has stated that from the pleadings and materials of the parties it is quite apparent that the plaintiff had no bonafide personal requirement of the suit premises as she was 80 years old at the time of her deposition and had sufficient income for her livelihood, specially when she had no liabilities at all because she had no son and had only two daughters, who were married in well of families. Learned counsel for the defendant-petitioner had further submitted that the plaintiff in her deposition as PW.6 had herself admitted that another shop was vacant and 7- 8 shops were on rent but the learned court below did not consider the question of alternative accommodation raised by the defendant in accordance with a decision of the Hon’ble Apex Court in case of M.M. Quasim Vs. Manohar Lal Sharma and others, reported in AIR 1981 SC 1113. 12. Learned counsel for the defendant-petitioner had also averred that the suit premises was his only shop and source of his livelihood and if he was ousted from the same, he will have to face starvation whereas on the other hand, the plaintiff had other accommodations also where she can easily start her business if she so desired. It was also averred that the suit for eviction has been filed by the plaintiff-opposite party without 5 sending any notice to the defendant-petitioner. In addition to the aforesaid points learned counsel for the defendant-petitioner also challenged the finding of the learned court below with regard to the expiry of the fixed period of lease on the ground that the said finding was given without framing any issue with regard to expiry of the fixed period of lease. 13. On the other hand, learned counsel for the plaintiff-opposite party contested the claim of the defendant-petitioner stating that this civil revision is absolutely frivolous as the grounds taken by the defendant-petitioner are baseless and are against the pleadings and evidence of the parties, whereas the impugned judgment of the learned court below is legal, valid and proper as it has been passed after full consideration of the pleadings and evidence of the parties. 14. Having heard learned counsel for the parties and having perused the materials on record, including the impugned judgment of the learned court below, it is quite apparent that the defendant-petitioner has not challenged the relationship of landlord and tenant between the parties. It is quite apparent from the record of the case that the defendant neither claimed the suit premises on the basis of any right or title nor he claimed to be tenant of any other person rather he had specifically claimed that he was the tenant of the husband of the plaintiff. The learned court below also found on the basis of the evidence of the parties that the defendant-petitioner was the tenant of the suit premises on the basis of Ext.1, which was an agreement for eleven months lease executed by the husband of the plaintiff in favour of the defendant with respect to the suit premises, which after the death of her husband devolved upon the plaintiff and defendant paid rent to her. In the said circumstances, it is incidentally found that the plaintiff-opposite party is the owner of the suit premises and it is also held that there is relationship of landlord and tenant between the plaintiff-opposite party and defendant-petitioner. 15. So far the question of expiry of the fixed period of lease is concerned, it was pleaded and proved by the plaintiff and hence it was included in Issue no.(iv) framed by the court, whereafter it was considered fully in paragraph 11 to 13 of the trial court judgment. The plaintiff claimed expiry of the fixed period of lease vide Ext.1 which is a deed of lease dated 01.12.1993 for 11 months expiring on 31.10.1994 executed by the husband of the 6 plaintiff in favour of the defendant and which was fully supported by the witnesses of the deed, but could not be validly disproved by the defendant nor it was falsified by any deed or paper. In the said circumstances the learned court below was fully justified in holding that the said deed was the basis of tenancy. 16. So far the question of personal necessity is concerned, the plaintiff-opposite party had produced seven witnesses, including herself as PW.6 and her grand son (Nati) as PW.3, who fully proved that she was a widow and had no son and both her daughters were living with their respective in-laws and she had no income of her own except the rent from the shops, which was not at all sufficient for her maintenance and was supported by none and even her grand son, who was living with her was unemployed. Although the defendant had produced ten witnesses, including himself as DW.9 but none of them could validly falsify the said pleadings and evidence of the plaintiff-opposite. 17. The point raised by the defendant-petitioner that the plaintiff claimed the suit premises for personal necessity of her grand son (Nati) was also contrary to the pleadings and evidence, as from a bare perusal of the plaint and the evidence of the plaintiff and others it is quite apparent that the plaintiff had specifically stated that she required suit premises for her own requirement for opening her shop in which her grand son would render help only and thus it is quite apparent that the claim of personal necessity was not for the grand son rather it was for the plaintiff only and hence this objection is quite untenable. With respect to the other question raised by learned counsel for the defendant-petitioner with regard to the age of the plaintiff-opposite party, it is quite apparent that the age is no bar for filing such a suit and the basis for such suit is bonafide of the requirement and here in the instant case, the bonafide of the requirement of the plaintiff has been fully proved as stated above by the evidence on record, hence this plea of the defendant-petitioner is also not tenable in law. 18. So far the question of alternative accommodation is concerned, no doubt a landlord has got no unfettered right to choose the premises if another similarly situated premises of similar area and condition is available with him/her as has been held by the Hon’ble Apex Court in a case of M.M. Quasim (supra), but the Hon’ble Apex Court has 7 itself held in the said decision that for the said purpose the tenant has to show that the landlord has some other similar premises as mentioned above in his possession. The law is well settled in this regard that landlord having other premises which is not sufficient to defeat his claim of his personal necessity, he has a right to choose to satisfy his requirement. Reference in this regard may be made to two decisions of this court in a case of Sadhu Sharan Sahai & Another vs. National Seeds Corporation Ltd. & Ors., reported in 1989 BBCJ 126 as well as in a case of M/s Tip Top and others vs. Smt. Indramani Devi, reported in AIR 1982 Patna 190. Here, in the instant case the defendant has not been able to show that the other shop of the plaintiff, which was vacant, was similarly situated premises having similar area and condition, whereas the evidence of the plaintiff was specific on this point that she had no other premises suitable for the required business and it was only the suit premises which was appropriate for the requirement of the plaintiff. Thus the said decision of the Hon’ble Apex Court does not support the claim of the defendant-petitioner. 19. Furthermore, the intention of the defendant appears to be quite nefarious as earlier he had denied any relationship of landlord and tenant between the parties and had claimed that since the husband of the plaintiff had no son, he had given the suit premises to the defendant but now having failed to prove his case he has taken ‘U’ turn and has claimed in the civil revision that he has only one shop, namely the suit shop in which he has his business as a tenant which is the sole source of his income and if he is ousted he will have to face starvation. This plea of the petitioner is not tenable in law as the bonafide of the requirement of the plaintiff is to be seen under the Act and not the requirement of the defendant, who is merely a tenant and cannot claim the suit premises as of right. 20. So far the submission of learned counsel for the defendant-petitioner with regard to absence of any notice to the defendant for his eviction is concerned, it is quite apparent that the plaintiff had produced a lawyer’s notice dated 29.07.2000 (Ext.2) sent to the defendant for vacating the suit premises on the grounds mentioned therein. This exhibit had been supported by the plaintiff’s witnesses but could not be disproved by any witness of the defendant and the defendant had further failed to produce any document as an exhibit in support of his claim. In any view of the matter there is no requirement of any notice for 8 filing an eviction suit under the provisions of the Act and hence even in absence of any notice such a suit can be filed and is legally maintainable. 21. So far the question of partial eviction is concerned, the learned court below has considered the said question also in paragraph-14 of his judgment and had found that the plaintiff required the entire suit premises. Although the defendant had claimed that the area of the suit premises was 9.5 ft. x 7.9 ft. (about 75 sq.ft.) but neither in his pleadings nor in his evidence he had anywhere averred that the requirement of the plaintiff would be satisfied by partial eviction. The law is well settled in this regard that the onus is on the defendant to plead and prove that partial eviction would satisfy the requirement of the plaintiff. Reference in this regard may be made to a decision of this court in a case of Food Corporation of India & Ors. vs. Vishun Properties & Enterprises & Ors., reported in 1995 BBCJ 711. However, on the other hand, the plaintiff-opposite party pleaded and also proved that she had bonafide personal requirement of the entire suit premises, which had been rightly affirmed by the learned court below in its impugned judgment. 22. In the aforesaid facts and circumstances, this court finds that the learned court below has considered the pleadings and evidence of the parties in right perspective and has passed the impugned judgment on the basis of legal, valid and proper findings. This court does not find any illegality in the impugned judgment of the learned court below nor does it find any merit in this civil revision, which is accordingly dismissed. Patna High Court (S.N. Hussain, J.) Dated, the 24th July, 2009 N.A.F.R./harish