IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.502 of 2009 Bhagwan Das & Ors. Versus Chhotan Prasad ---------------------------------- 9 21-11-2011 Heard Mr. R. K. Singh No2, learned counsel appearing on behalf of the appellants and Mr. Panditjee Pandey, learned counsel appearing on behalf of the respondent. This appeal has been filed against the judgment and decree dated 25-8-2009 passed by Additional District Judge, 9th, Saran at Chapra in Eviction Appeal No. 3 of 1999 by which he has affirmed the judgment and decree passed by the Munsif, 1st, Chapra in Eviction Suit no. 17 of 1991. The plaintiffs who have brought the suit for eviction against the defendant have filed this appeal against the judgment of affirmance dismissing their suit. The plaintiffs have sought for eviction of the defendant on the ground of default in payment of rent and personal necessity of the suit premises which is a shop. There is no dispute that the sole defendant is the tenant in the shop. As both the courts below have concurrently held that there is no default in payment of rent, the learned counsel appearing on behalf of the appellants has pressed this appeal challenging the findings on the issue of personal necessity alone. The plaintiffs’ case in the plaint is that the plaintiff no.1 has a bonafide and reasonable personal necessity of the suit shop for establishing his son(plaintiff no.2) in his business as he was unemployed. Both the courts below have concurrently held 2 that the story of personal necessity, as set up by the plaintiffs, could not be established in view of the evidence on record that plaintiff no.1 had been carrying business in adjacent another shop and as he had become old, his son(plaintiff no.2) had been assisting him in the same business which both the courts below have chosen to rely upon. It has also been found that plaintiff no.1 had not disclosed the nature and details of the business to be started in the suit shop and further that the financial condition of plaintiff no.1 was bad. The learned counsel appearing on behalf of the appellants has vehemently argued that the approach by both the courts below in reaching to the conclusion on the issue of personal necessity is against the principle of law which is by now well- settled. According to the learned counsel, the plaintiff-landlord cannot be non-suited solely on the ground of non-disclosure of the nature and details of business or the sources of finance for starting such business. It has also been urged by the learned counsel that there are evidence on record to establish that the need of plaintiff no.1 was bonafide and reasonable. During the course of argument it has been submitted on behalf of the respondent that the plaintiff no.1 died during the pendency of the appeal in the court below itself. As such, in view of the evidence on record that his only son(plaintiff no.2) was assisting him in business and was not unemployed, the case of personal necessity now vanishes. This fact has not been denied on behalf of the appellants that plaintiff no.1 is now dead and in view 3 of the evidence on record that his son(plaintiff no.2) had been assisting him in the business, it can be taken that he must be continuing the same business in the shop occupied by plaintiff no.1. After the death of plaintiff no.1 in the court of appeal below itself, no pleading or evidence had been brought on behalf of the appellants showing that the personal necessity will survive even in view of the changed facts and circumstances. The learned counsel appearing on behalf of the appellants, however, has vehemently submitted that the sisters of plaintiff no.1 are also parties to the suit as well this appeal and they might be having share in the estate left by plaintiff no.1. There is no dispute with regard to this proposition, but in view of the limited nature and scope of the suit this dispute cannot be taken into consideration. It will suffice to take notice that the personal necessity of the sisters had never been pleaded by the plaintiffs as ground for eviction of the defendant and they may be always at liberty to take recourse to law, if permitted. In view of the discussions above, no substantial question of law arises for consideration in this appeal, which is accordingly dismissed. roy ( V. Nath, J.)