IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2276 of 2007 SHOBHA LAL MODI, son of Late Kishori Lal Modi, M/s Kasba Hardware Store, near Old Post Office Chowk, Mohalla Amla Tola, Girls School Road, P.O. + P.S. + District Katihar … Defendant/ petitioner Versus KANU BHAI PATEL, son of Late Ranchoor Bhai Patel, resident of Amla Tola, Girls School Road, P.O. + P.S. + District Katihar … Plaintiff/ Opp.Party. ----------- For the Petitioner :- Mr. Shashi Shekhar Dwivedi,Sr.Adv. Mr. Shailendra Kr. Dwivedi,Adv. Mr. Ranjan Kr. Dubey, Adv. Mr. Lakshman Lal Pandey, Adv. Mr. R.S. Dwivedi, Adv. For the Opposite Party :- Mr. Devendra Pd. Sharma, Adv Mr. Rama Nand Poddar, Adv. P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kr. Jha, J. Heard counsel for the parties. This civil revision application has been filed against the order dated 14th September, 2007 passed by Sri Krishna Bihari Pandey, Munsif, Katihar in Eviction Suit No. 22/1997 by which he has decreed the eviction suit on contest with cost and has directed the defendant-petitioner to handover the vacant possession of the suit premises in favour of the plaintiff-opposite party. The plaintiff-opposite party as also his brother Ashok Bhai Patel had filed the aforesaid suit for eviction on the ground of personal necessity. In the plaint 2 it was categorically mentioned that the aforesaid Ashok Bhai Patel, plaintiff no.2, had filed the suit in capacity of Attorney of plaintiff no.1 who had authorized him (plaintiff no.2) to look after and maintain all affairs of landed properties situated at Mauza Durgapur vide Power of Attorney dated 24.4.1992. In the plaint and its schedule the description of the premises was described consisting of a building of one Pucca room measuring 8‟x12‟ and two tin sheds of 14‟x6½‟and 30‟x14‟ respectively apart from the open space of 1134 Sq.ft. The plaintiff claimed to have purchased the suit property by a registered sale deed dated 12.4.1992 from Smt. Rita Patel, who in fact had purchased it from Sunil Kumar Saha and Subodh Chandra Saha, both sons of Babu Gopal Chandra Saha by a sale deed dated 7.11.1990. In the plaint it was claimed that the defendant-petitioner was inducted as a tenant of the building from the time of Late Babu Gopal Chandra Saha, the original owner of the building on a monthly rental of Rs. 50/- per month. It is further claimed in the plaint that after the plaintiff had 3 purchased the property, an application was filed before the House Controller for fixation of fair rent for the suit premises and after enquiry and hearing the parties including the defendant-petitioner fair rent was fixed at the rate of Rs. 1270/- per month. In the plaint the personal necessity of the plaintiff was also set out at length by taking a plea that the plaintiff Kanu Bhai Patel was partner in a firm, namely, M/s Nepani Tobacco Store and the said partnership firm had taken two rented houses for running the business, a godown on a rent of Rs. 500/- per month in R.K.Mission Road, Katihar and a shop on rent of Rs. 200/- per month in M.G.Road, Katihar, apart from the plaintiff also hiring a house for residential use at a monthly rental of Rs. 900 in Mohalla Amla Tola, Katihar. It has been further stated in the plaint that the plaintiff Kanu Bhai Patel and his brother Ashok Bhai Patel had purchased the property separately by two sale deeds with a view to use the building in question purchased by the plaintiff as well as 4 brother Ashok Bhai Patel for locating their business premises, godown and for residential premises at one and same place. The plaintiff, therefore, has also set out the case of personal necessity on the ground of both requirement of business as also for residential purposes of his family and children. It has to be also noted here itself that in the plaint the plaintiff Kanu Bhai Patel had clearly stated that his brother Ashok Bhai Patel had also filed separate suits for evicting the other tenants who are living in his house. The plaintiff had indicated that upon eviction of the tenants including the defendant-petitioner they had intended to construct a house by remodeling the house for the aforesaid personal use and the business premises for which a plan was already submitted to Katihar Municipality. The plaintiff‟s case for eviction based on bonafide personal necessity arising out of running the business, locating his godown as well as building of personal residence for himself and his family had also necessitated him to request the defendant-petitioner for 5 vacating the building but when such request did not make any impression on the defendant-petitioner the suit in hand was filed on 1st September, 1997. The defendant-petitioner had filed a written statement after seeking leave of the court wherein his main line of defence was that the plaintiff was not residing at Katihar, rather both Kanu Bhai Patel as also his brother Ashok Bhai Patel were residing in Gujrat and the suit for eviction was filed at the instance of one Arbind Patel, who was the person pulling the strings behind the curtain. The further plea of the defendant-petitioner in the written statement was that the plaintiff Kanu Bhai Patel did not purchase any house by the sale deed in question from Rita Patel wife of Late Ashok Bhai Patel rather only a strip of land was purchased by him and as such, the suit under the Bihar (Building, lease, rent and eviction) Control Act, 1982 (hereinafter referred to as „the Act‟) was not maintainable. It is however very significant to note here itself that in paragraphs 12 of 6 the written statement it was stated that the defendant has got his own residential house adjacent east to the suit land/ premises and was using the passage for ingress and out gress through the suit land for more than 20 years prior to filing of the suit and thus, had acquired the right by prescription (easement) and was entitled to use the passage and the plaintiff was not entitled to close the said passage even if he succeeded in the suit. In the same vein the defendant-petitioner in his written statement had also denied the plea of personal necessity both for the business purposes as also for the residential use of the plaintiff, inasmuch as it was his case before the court below that the plaintiff was not residing in Katihar and was stationed in the State of Gujrat and his business, if any, under the name and style of M/s Nepani Tobacco Store had already been dissolved. The defendant-petitioner in the written statement had also denied any demand being made by the plaintiff for vacating the suit premises by taking a plea that both the plaintiff Kanu Bhai Patel and his brother 7 Ashok Bhai Patel were residing in the State of Gujrat and as such, there was no occasion for them to have made such a demand from the defendant-petitioner. The court below on a consideration of the oral and documentary evidence had come to the conclusion that there is a relationship of landlord and the tenant between the plaintiff and the defendant. It was further held that the suit premises was required by the plaintiff reasonably and in good faith for occupation for business and residential purposes. It was also held that the partial evidence of the defendant petitioner would not fulfill the requirement of the plaintiff. Learned counsel for the petitioner has assailed the impugned judgment and decree on several grounds as is dealt hereafter. It was firstly submitted that the plaintiff Kanu Bhai Patel had no right to maintain the suit as the suit land was purchased by him from Smt. Rita Patel who had purchased it from Sunil Kumar Saha and Subodh Chandra Saha, both sons of Late Babu 8 Gopal Chandra Saha. According to the learned counsel for the petitioner Late Babu Gopal Chandra Saha was a Sikmidar who had no right to transfer such land. In this context reliance was placed by the learned counsel of the petitioner on the judgment of this Court in the case of Padarath Chaudhury & ors. vs. Mostt. Jogtia & ors., reported in 1987 BLJ 636. Counsel for the plaintiff-opposite party, on the other hand, had submitted that the plaintiff Kanu Bhai Patel was not a purchaser from Babu Gopal Chandra Saha, rather the suit property was purchased from Rita Patel and while justifying the title of Rita Patel counsel had submitted that the sale deed (Ext.6) had clearly mentioned that the father of the vendors of the sale deed, namely, Babu Gopal Chandra Saha had purchased the said land alongwith the houses from Babu Sharda Kumar Bhattacharya and Babu Vinay Kumar Bhattacharya, son of Babu Digamber Bhattacharya through registered sale deed dated 16.9.1952. Counsel had further relied on Ext.9 to show that Babu Gopal Chandra Saha had purchased the 9 Khatyani raiyati land of the suit premises and accordingly, his name was mutated in the Serista of the State of Bihar and as such, the entry made in the Khatiyan showing Gopal Chandra Saha as Sikmidar could not be given any importance as it was not a document relating to title. This Court on perusal of the material on record especially Exts. 6 and 6/A, the two registered sale deeds and the rent receipts as also the mutation order would come to a finding that the plaintiff is the owner and the landlord of the suit premises and the story of Gopal Chandra Saha being Sikmidar in no way would adversely affect the title of the defendant-plaintiff. It has to be noted that in any event the defendant- petitioner does not claim to be the landlord of the suit premises in question in his own rights and has virtually conceded this aspect by making an admission of his being tenant of the suit premises (whether land or building or both) in the written statement. In fact when the plaintiff has claimed a right of easement over the suit land, he cannot be heard to 10 claim himself as the owner of the suit property. More over, this issue as with regard to plaintiff being landlord has also been decided in an ancillary proceeding for the same suit premises under the orders of the House Controller and therefore, this Court would reject the first submission on behalf of the defendant-petitioner that the plaintiff had no title to the suit property so as to maintain eviction suit in capacity of landlord of the suit premises. The judgment of this Court in the case of Padarath Chaudhury & ors. vs. Mostt. Yogtia & ors. (supra) will be of little assistance, inasmuch as in that case it was an admitted fact that all that was held was that even by acquiring occupancy status in the land an under raiyat would remain under raiyat and deemed by such occupancy status would not become a raiyat himself. Exts. 6 and 6/A, however, would go to show that Gopal Chandra Saha was not the Sikmidar, rather was purchaser of the land and the entry in the Khatiyan by itself would not be conclusive so as to take away his right to transfer such land. In that view of the matter, this 11 Court does not find any reason to disturb the finding arrived at by the court below as with regard to maintainability of the suit at the instance of the plaintiff in capacity of the landlord of the suit premises. Yet another ancillary issue raised by the counsel for the defendant-petitioner with regard to maintainability of the suit on account of the claim suit premises to be totally vacant land must be held to be without any substance. Counsel for the petitioner in fact had proceeded to submit that under the B.B.C.Act a suit only in respect of the vacant land would not be maintainable and when the sale deed of the plaintiff-opposite party, only contains the description of vacant land, it cannot be assumed that any part of the building was also standing thereon so as to make the suit maintainable. In this context reliance was also placed on a judgment of the Division Bench in the case of M/s Ashok Chitra Pvt. Ltd. vs. State of Bihar & ors., reported in 1993(1) PLJR 524, wherein it was held that the provisions of B.B.C.Act would not be applicable to vacant piece of land. 12 Counsel for the plaintiff-opposite party, however, by taking this Court to the evidence on record has sought to establish that the description given in the plaint of the suit premises to have one Pucca room measuring 8‟x12‟, two tin sheds measuring 14‟x6½‟ and 30‟x14‟ respectively and open space 1134 Sq.Ft. was not only borne out from the sale deed of the vendor of the petitioner, rather even Gopal Chandra Saha had been conveyed constructed portion of the building in the sale deed conveyed to him on 16.9.1952. In the opinion of this Court the issue, however, as with regard to suit premises being both having a constructed room, two tin sheds and vacant land gets full support from the oral evidence of the defendant-petitioner himself. In this regard D.W.3 Quayum Ansari in para 7 of his deposition has clearly stated that: ^^eSa xksiky lkg dks ns[kk FkkA og fookfnr tehu dk igys ekfyd FkkA igys ls gh xksiky lkg }kjk cuk;k x;k edku rFkk Vhu 'ksM gSA** This part of the statement of D.W.3 would not only demolish the entire case of 13 the defendant-petitioner on this point but when his own aforesaid witness D.W.3 in earlier para 4 had also stated that ^^fookfnr tehu ij tks Vhu dk 'ksM gS mldk ekfyd oknh gSA ml Vhu okys 'ksM ds 'kksHkkyky eksnh fdjk;snkj gSA** nothing would be left for speculation that the suit land is not a vacant land as is claimed by the defendant- petitioner in the written statement. The issue as to who had constructed the tin sheds or whether the petitioner in course of his tenancy had also added any construction would not change the fact that the suit land right from the period of Gopal Chandra Saha had certain constructions thereon and when the same was given on rent to the petitioner by Gopal Chandra Saha, the subsequent purchasers either Smt. Rita Patel or the plaintiff-opposite party would not be reduced to be the owner of only the vacant land. It is well settled that though the definition of the term “building” under section 2B of the B.B.C.Act would not include vacant land but when both the vacant land and the rooms have been let out, the Rent Control Act will definitely apply to 14 such tenancy. Reference in this connection may be made to the judgment of this Court in the case of Ram Ashray Singh & anor. vs. Ram Chandar Prasad & ors., reported in 2000(1) PLJR 1. Based on the aforementioned consideration the second objection to the maintainability of the suit on the ground of the suit premises being only land and thus B.B.C.Act being not applicable must be and is hereby rejected by affirming the findings in this regard of the court below in the impugned judgment. The last of the objection with regard to maintainability of the suit on the ground of death of the plaintiff no.2, the Power of Attorney holder, and there being signature of the plaintiff Kanu Bhai Patel on plaint has to be only noted for its being rejected. In this respect this Court would find from the reading of the plaint that not only Kanu Bhai Patel was the landlord of the suit premises in question by virtue of sale deed in his name but even the plaint clearly prescribed Ashok Bhai Patel, plaintiff no.2, the Power of attorney holder, and own 15 brother of Kanu Bhai Patel, plaintiff no.1 to be only representing interest of Kanu Bhai Patel and that is how in para no.2 of the plaint it was mentioned that plaintiff no.2, Ashok Bhai Patel, was filing the suit in capacity of attorney of plaintiff no.1 Kanu Bhai Patel who had executed a Power of Attorney in favour of plaintiff no.2 for doing all needful in respect of the landed properties of plaintiff no.1 including let out the properties to his tenant, receiving the rent from the tenant, grant receipt to the tenant of his own signature, to pay municipal taxes and other taxes and to file and defend any suit in the court of law on his behalf as also to sign the plaint, swear affidavit and appoint any lawyer on behalf of plaintiff no.1. If with such clear description the suit in hand was filed by the plaintiff-opposite party Kanu Bhai Patel through his attorney Ashok Bhai Patel it cannot be said that after the death of Ashok Bhai Patel on 12.12.1997, during the pendency of the suit which was filed on 1.9.1997, the plaintiff Kanu Bhai Patel had no right to continue with the suit. In this 16 regard this Court would find that Kanu Bhai Patel after the death of Ashok Bhai Patel, plaintiff no.2, and the Power of Attorney holder, had filed a petition on 23.1.1998 stating therein that he would contest the suit himself and had prayed for deleting the name of Ashok Bhai Patel, plaintiff no.2, from the plaint which after hearing all the parties was allowed by the court below by an order dated 29.1.1998. The moment the court had allowed the plaintiff Kanu Bhai Patel to contest the suit, which was only for eviction of his suit property in capacity of landlord, it cannot be even remotely suggested that he had no right to continue with the suit or that his not putting signature on the plaint after the death of plaintiff no.2 would become fatal for maintainability of the suit. It has to be noted that the plaintiff Kanu Bhai Patel had also examined himself in capacity of the plaintiff and was put to rigorous cross- examination on behalf of the plaintiff- petitioner and nothing could be elicited from him so as to doubt his capacity either of his being landlord or capability of his 17 continuing with eviction of the suit premises. The procedural laws envisaging the signature of the plaintiff, in case of more than one, by all of them are only to secure the ends of justice and if by a subsequent event, as in this case the order dated 29.1.1998 by the court below, Kanu Bhai Patel was allowed to contest the suit, his not signing the plaint after that date would not vitiate the entire subsequent proceedings. That being so, this Court would also not find any merit in the submission of the counsel for the defendant-petitioner that after the death of plaintiff no.2, the Power of Attorney holder, the suit was not maintainable and the findings given in this regard by the court below also would, therefore, require no interference. Counsel for the petitioner next submitted that the court below has committed an error even in respect of recording its finding with regard to personal necessity. In this regard learned counsel had submitted that admittedly one of the two plaintiff had 18 died during the pendency of the suit and was not substituted and as such, the personal necessity for which the suit was filed had got automatically reduced to half and yet the court below without taking this fact into account had allowed the case of personal necessity of the plaintiff as was pleaded in the plaint. In the opinion of this Court the issue of personal necessity as pleaded in paragraphs no. 7 to 11 of the plaint has to be gone into in the back-drop that a family consisting of two brothers had been running business in the name and style of M/s Nepani Tobacco Store, a partner ship firm and it was for the said business as also for residential use of the family members of Kanu Bhai Patel, the plaintiff, that the suit was filed. It must be held that on account of death of plaintiff no.2 the Power of Attorney holder and the brother of Kanu Bhai Patel, neither the business had come to an end, inasmuch as it is on the record that even after the death of plaintiff no.2 the business partner, the partnership firm had continued to flourish with Rita Patel, his 19 widow inducted as a partner. Therefore, if such partnership firm which had required business premises having a show room (shop), a godown and even open space and as such, had to take three buildings in Katihar town on rent, it cannot be said that the personal necessity got reduced on account of the death of plaintiff no.2. The fact that the partnership business and the firm under the name and style of M/s Nepani Tobacco Store was still in operation gets support even from the deposition of the defendant petitioner, inasmuch as D.W.1 Gunadhar Prasad Singh in his deposition in court on 25.2.2002 had clearly admitted the same by stating that ^^dkuwHkkbZ iVsy dks eSa o"kZ 1977 ls tkurk gwWA eSa mudh nqdku ij tkrk FkkA dkuwHkkbZ iVsy dk lq[kk iRrk dk nqdku FkkA usikuh Vkscsdks uke ls nqdku FkkA dkuwHkkbZ iVsy ls vk[kjh eqykdkr bl ekg ds 'kq: esa gqvk FkkA** The said admission on the part of D.W.1 and his further statement in paragraph no.7 with regard to his visit to the godown of the plaintiff including last one on 11/12th February, 2002 would leave nothing for speculation that the business even after 20 the death of Ashok Bhai Patel, plaintiff no.2, was continuing and as such, personal necessity for the business premises had still continued after the death of plaintiff no.2. The defendant-petitioner in fact in all fairness ought to have given up this issue of personal necessity in view of the fact that even his own witness D.W.4 Chandra Lal who too had admitted about the business to be still continuing even after the death of Ashok Bhai Patel. Be that as it may, when the defendant- petitioner in paragraph 24A of the written statement while amending the written statement had asserted that Ashok Bhai Patel and Kanu Bhai Patel (plaintiff) had joint business at Katihar named as M/s Nepani Tobacco Store, he cannot be allowed to wriggle out of the subsequent marshaling of facts and proving this aspect by the plaintiff that the said business was still surviving for which the plaintiff Kanu Bhai Patel had required the premises in good faith. It is also not in doubt that the plaintiff Kanu Bhai Patel had no other land 21 or house at Katihar except the suit premises as was also admitted by D.W.5 in his deposition in paragraph no.24 and therefore, if for the business premises and residential use for which a proposed building plan (Ext.5) had already been submitted before Katihar Municipality as was also proven by the plaintiff, it would not lie in the mouth of the defendant-petitioner having his own house as per his own admission in paragraph 15 of the written statement by the side of the suit premises, to say that the plaintiff should continue to reside in a rented house and carry his business from the rented shop and godown. Every landlord has a right to recover his own building from the tenant for his personal bonafide use and from the evidence on record this Court is fully satisfied that the court below has committed no error in recording finding with regard to personal necessity of the plaintiff. This Court is not expected to weigh on balance the personal necessity and has to go by evidence on record for holding that under the given set of facts and circumstances where the defendant-petitioner had his own 22 residential house by the side of the suit premises, he was