IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.782 of 2007 Surendra Mishra @ Surendra Prasad Mishra, son of Late Sushil Mishra, Resident of Mohalla-Jogsar Swamy Viveka Nand Path, P.O.-Jogsar, Police Station- Kotwali, District-Bhagalpur. ………………… Defendant No. 1 ………… Petitioner Versus 1. Shrimati Tripty Sinha, wife of Shri Sunil Kumar Sinha. 2. Sunil Kumar Sinha @ Mohan Sinha son of Late Ambika Prasad, both resident of Mohalla-Poddar Tola, Jagsar, Police Station-Kotwali, P.O.-Jogsar, District- Bhagalpur. ………………… Plaintiffs/Opposite Parties (1st Party) 3. Urmila Sahay, wife of Late Shtrughan Sahay. 4. Santosh Kumar Sahay 5. Chitranyan Sahay 6. Akhilesh Sahay 7. Subodh Sahay 8. Mukul Sahay 4 to 8 all sons of Late Babu Satrughan Sahay All resident of Mohalla-Jogsar, Police Station- Kotwali, P.O.-Jogsar, District-Bhagalpur. ………………… Defendant no. 2 …… Opposite Parties (2nd Party) ----------- 14. 16.9.2009 Heard counsel for the parties. This civil revision application is directed against the judgment dated 14.2.2007 passed by the Munsif-II, Bhagalpur in Eviction Suit No. 2/1993 whereby and whereunder a decree of eviction has been passed against the defendant-petitioner. Counsel for the defendant-tenant- petitioner while assailing the impugned judgment has raised only two issues, namely, (i) The finding recorded on the issue of personal necessity by the court below is perverse on account of non-consideration of the oral evidence of the witnesses of the 2 defendants as also on account of omitting to consider the admission of the plaintiff herself. (ii) The finding on the issue of partial eviction is not only tentative but also incomplete. Expanding the aforementioned submissions learned counsel for the tenant petitioner has exhaustively referred to the pleadings in the plaint/ written statement to contend that the plea raised by the plaintiff-landlord- opposite parties as with regard to personal necessity in paragraph 6 of the plaint being based on having their no house in the town of Bhagalpur was actually incorrect, inasmuch as the plaintiff had a double storied house in Poddarganj Lane. In this context learned counsel for the petitioner has also referred to the oral evidence of P.Ws. 1, 2 and 3 to contend that none of them had actually supported the personal necessity of the plaintiff and it was in this regard emphasis was given to the deposition of P.W.3, the son of vendor of the plaintiff, that the plaintiff did not required the disputed property. Mr. S.K.Mazumdar, learned counsel 3 appearing on behalf of the plaintiff- landlord, opposite party, on the other hand, has not only relied on the findings in the impugned judgment but has also stated that it was not correct to say that the oral evidence of witnesses of the defendant- tenant- petitioner was not considered. This Court on consideration of the materials on record as also the aforementioned submissions would find that the plea of the plaintiff-landlord- opposite party as with regard to personal necessity was quite specific that she had required the said premises for expansion of the business as also for residential use. Mr. Mazumdar in fact seems to be correct to rely on the circumstance that two other tenants, namely, Ramu Tiwary and Rani Devi, had vacated part of the building considering the personal necessity of the plaintiff. This Court on perusal of the oral evidence led by the plaintiff-landlord would find that when P.W.2 had gone to support the personal necessity of the plaintiff-landlord by asserting before the court that the plaintiffs despite having their own building 4 were forced to continue on rent in his (P.W. 2’s) premises and was carrying business on the tenanted premises, it cannot be said that there was no personal necessity for the plaintiff. It would be very difficult for this Court to hold that even if the plaintiffs had their own property, the disputed house, and they were forced to hire some other property on rent for carrying on their business, they had no such personal necessity for their own use for carrying their own business. The plea that the plaintiffs had also some house in Poddar Tola Lane would hardly be an answer to negate the plea of personal necessity, inasmuch as it had come in evidence that the same was an ancestral house not exclusively belonging to the plaintiff. Thus, merely because in the ancestral house the plaintiff was carrying the business would not dispel the personal necessity of the plaintiff, especially when the defendant had not produced any document or detail with regard to space available in such ancestral house. The plaintiff had in fact purchased the disputed house in the year 1992 and 5 obviously they needed such separate house apart from their ancestral house only because of lack of space as has been stated by almost all the witnesses of the plaintiff. In fact it would not lie in the mouth of the tenant to force a landlord to choose one of the two premises. It is true that the court below has not made a detailed discussion of such personal necessity of the plaintiff in the light of the evidence on record but then this Court has carefully gone into the averments in the plaint as also deposition of the witnesses examined by the plaintiff and finds that the plea of personal necessity of the plaintiff in the house purchased by them in the year 1992 for their own use was fully substantiated. The over emphasized admission of P.W.3 of the plaintiffs having no personal necessity as proposed by the learned counsel for the petitioners in fact seems to be also wholly misplaced. P.W.3, Santosh Kumar Sahay, is the son of the vendor of the plaintiff who had sold the disputed house in the year 1992. In paragraph 1 he has stated that he is not only signatory to the said 6 sale deed in favour of the plaintiff as a witnesses but had also been informed by the plaintiff that it was purchased by her for carrying her business. He has further explained in his evidence that after the sale was made in favour of the plaintiff by his father, the defendant tenant petitioner had assured to vacate the suit premises but the same was not vacated by him. In paragraph no.3 the said witness has also stated that the house in which the plaintiff at present was residing was in a Gali in which no vehicle much less a truck or other vehicle could have entered. The said witness has also clearly stated that the defendant- tenant-petitioner himself had purchased another house in Mohalla Burhanath in Bhagalpur town in which he was also residing. In cross-examination on the issue of personal necessity the said witness was not shaken and therefore, it would be difficult to treat the statement that the plaintiff did not require the house. It appears to this Court that the defendant tenant has some how sought to place reliance on one sentence in paragraph 3 of 7 examination-in-chief of P.W.3 without considering that the same witness in paragraph no. 1 and 2 had clearly stated as with regard to personal necessity of the disputed house for carrying out the business, inasmuch as the house in which the plaintiffs were residing and carrying business was not approachable by any vehicle. In any event the admission being not unambiguous and specific cannot be accepted in isolation and has to be read as a whole and therefore, this Court is satisfied that there was infact no admission in the evidence of P.W.3 which could have non-suited the plaintiff on the issue of personal necessity. This aspect of the matter in fact gets further clarified from the deposition of P.W.1 Mohan Sinha, plaintiff no.2, who has in paragraph 3 of his deposition made categorical statement that he required the entire house for carrying out his business in connection with dyeing and bleaching of silk business being carried under the name and style of Amit Bleaching and Dyeing and Tripti Dyeing and Bleaching. Such personal 8 necessity gets further confirmed in paragraph 4 of his (P.W.1) deposition wherein it has been also stated by him that the business is being carried out in a premises having insufficient space as a result whereof he had to carry his business from the tenanted premises of one Raghu Babu (P.W.2). The reading of the entire evidence of P.W.1 would, therefore, leave nothing for speculation that the plaintiff had insufficient space and in fact carrying part of his business from the tenanted premises and such purchase of the property in question in the year 1992 was also made for the purpose of his own business which in effect was his personal necessity. It has to be noted that in the cross-examination the said witness he has not only supported as with regard to carrying of business of dyeing and bleaching of silk but substantial volume of business being carried out by him was also elicited by the defendant-tenant- petitioner in the cross-examination wherein he had clearly stated that the plaintiffs were dyeing literally 20-25 bales of silk clothes everyday. 9 The evidence of Raghubir Prasad Sinha (P.W.2) from whom the plaintiff had taken part of the tenanted premises for running their business by itself is sufficient to prove the personal necessity of the plaintiff, inasmuch as it has been clearly stated therein that the plaintiffs were occupying his premises on rent for carrying their business. Judged in this background when this Court finds the plea of personal necessity also to have been substantiated in the evidence of P.W.4, Punendu Kumar Karn, P.W.5 Ganesh Rai, P.W.6 Sohan Mandal, P.W.7 Gopal Prasad, P.W.8 Yogesh Chandra Ghosh, there would be nothing left for this Court to hold that there was no personal necessity for the plaintiff. From the reading of the evidence on record of the oral evidence of the plaintiffs it is absolutely clear that their case as asserted in the plaint of requiring the building in question on the main road approachable for all the vehicles including truck was purchased by the plaintiffs for carrying out their own business and that they did require such premises for their own 10 business use. This Court has also gone into the evidence of D.Ws. and would find that none of them have been able to say that the plaintiffs were neither carrying the business of dyeing and bleaching of silk or that they had sufficient space in their ancestral house or that they were not occupying a tenanted premises of P.W.2 for carrying such business. In the light of aforesaid scanning of evidence by this Court, the plea of personal necessity of the plaintiff is found to be fully proved and established and as such, the primal attack of the counsel for the petitioner on the issue of personal necessity must fail. On the issue of partial eviction this Court would find that the court below had not only framed the specific issue but had also recorded a finding that requirement of the plaintiff could not have been fulfilled by partial eviction of the tenant petitioner. It has come in evidence that four rooms of the disputed house were under occupation of the tenant petitioner and it was the case of the plaintiff landlord- 11 opposite party that they had required the entire premises for carrying out their business. The volume of business, as noted above, was clearly and categorically stated in the evidence of P.W.1 and as such, it cannot be said that any artificial need was created by the plaintiff as with regard to the disputed house. In fact it would be difficult to accept the submission of the counsel for the petitioner that in view of the plaintiffs having some share in the ancestral house, their need could have been fulfilled by only partial eviction of the petitioner. A tenant cannot dictate terms as to which portion of the house and to what extent the house would be used for what purposes. It has come on record that both plaintiffs no. 1 and 2, the husband and wife, were carrying business in the name of as many as three firms and the volume of the business was quite big and therefore, finding recorded by the court below even in respect of partial eviction does not suffer from any error. Mr. Mazumdar in fact seems to be correct in pointing out that in paragraph 8 of the impugned judgment the 12 issue of partial eviction has been gone into by the court below and the same clearly records a finding that the requirement of the plaintiff would not be fulfilled by the partial eviction of the petitioner. The reliance placed by the counsel for the petitioner on a judgment of the Apex Court in the case of Krishna Murari Prasad vs. Mitar Singh, reported in 1994 BBCJ 37(S.C.) is also wholly misplaced. In that case what was held was that even in respect of tenanted premises of one room the issue of partial eviction had to be examined and since in that case there was no finding recorded as with regard to partial eviction, the Apex Court had held the same to be in violation of the statutory mandate under proviso to section 11(1)(c) of the Bihar Building Control (Lease, Rent and Eviction) Control Act, 1982. Similarly reliance placed by the counsel for the petitioner on the Division Bench judgment of this Court in the case of Smt. Kalawati Tripathi vs. Smt. Damayanti Devi, reported in 1992 BBCJ 631, is also misconceived. In that case what was held by this Court was that proviso to 13 section 11(c) of the Act is mandatory and thus, even if the plea of partial eviction is not raised by the tenant the court has to consider the said question subject to the condition that the tenant agrees to partial eviction. In fact in the case of Smt. Kalawati Tripathi (supra) this Court had approved the finding recorded on the issue of partial eviction by recording that the need of the plaintiff for entire suit premises for carrying out wholesale business was sufficient and that the plaintiff required the premises reasonably and in good faith and that such requirement could not be satisfied with the partial eviction of the tenant. In the present case also there are unimpeachable evidence to establish that the volume of business being carried out by the plaintiff was quite huge and that in the premises in which they were carrying their business was not well connected approachable by the vehicle including trucks and as such, the plaintiff’s need of entire premises could not have been fulfilled by partial eviction of the petitioner. While continuing on the issue of 14 partial eviction this Court would also approve the finding of the court below that the petitioner in capacity of the tenant had never suggested or offered to even partly vacated the premises and in fact from the evidence on record it would be found that the petitioner despite having his own house in Mohalla Burhanath, in which he was also residing was trying, to only suffocate the plaintiff landlord- opposite party by over stretching his tenancy even after purchase of the disputed house by the plaintiff landlord for carrying their own business purposes. This Court, therefore, is satisfied that the issue of partial eviction was also considered by the court below in a fair and objective manner and there is no infirmity in the same. Having rejected the second and last submission of the learned counsel for the petitioner this Court would find that the petitioner has successfully deprived the plaintiff landlord- opposite party for a period over 17 years even when he has his own house in Mohalla Burhanath, a fact which 15 has not been denied by him at least in the averments made in this civil revision application. That being so, this Court must dismiss the civil revision application with a direction to the petitioner to vacate the premises and handover its possession to the plaintiff landlord- opposite parties within a period of two months from today, failing which the court below will proceed to get the premises vacated for its being handed over to the plaintiff landlord- opposite parties in accordance with law. With the aforementioned observations and directions, this application is dismissed. (Mihir Kumar Jha,J.) Surendra/