FIRST APPEAL No. 598 of 1983 Against the Judgment dated 19.08.1983 and the decree signed on 01.09.1983 by Sri Abhay Shankar Prasad, Subordinate Judge, Bhagalpur in Title Suit No.176 of 1982. ------- THE DIRECTOR OF NATIONAL CADET CORPS & ORS. ------------Defendants-Appellants Versus SMT. RAM PIARI DEVI & ORS. ------------Plaintiffs-Respondents For the Appellant : Sri Anil Kumar Jha, Sr. Advocate, G.A.2. For the respondent : Sri Manish Kumar, Advocate Sri Mukesh Kant, Advocate Dated 28th day of July, 2010. P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------- J U D G M E N T Mungeshwar Sahoo, J. (1) This First Appeal has been filed by the defendants-appellants against the Judgment dated 19.08.1983 and the Decree signed on 01.09.1983 by Sri Abhay Shankar Prasad, the learned Subordinate Judge, Bhagalpur in Title Suit No.176 of 1982 decreeing the plaintiffs-respondents suit for eviction. (2) The short facts which are necessary for disposal of this First Appeal may be briefly stated that the plaintiffs filed the aforesaid suit for eviction of the defendants-appellants on two grounds. Firstly, on the ground of default and secondly on the ground of personal necessity. It is alleged that they have purchased the suit premises for valuable consideration from the owner Narayan Chandra Ganguli and Nilanghu Chandra Ganguli on 29.11.1980 for the purpose of their residence. Plaintiff No.1 purchased the northern portion and the plaintiff No.2 2 purchased the remaining portion. It is further alleged that the suit premises is under the occupation of appellants and the office of the group commandant of N.C.C. is running in the same premises. They were inducted as tenant by the vendor of the plaintiff and the rent was Rs.500/- per month. (3) The defendants filed written statement and stated that they were informed regarding joint purchase only. They were not informed regarding respective shares. The rent was payable in one lump sum as per agreement. The house controller directed the defendant No.3 to deposit the rent in Nazarat. The defendants also denied the personal requirement of the plaintiffs. (4) By the impugned Judgment, the learned Court below came to the conclusion that there was no default made by the defendants- appellants. However, he found that the plaintiff have purchased the suit premises for their residence and, therefore, the plaintiffs reasonably and in good faith requires the suit premises for their personal occupation and decreed the suit. (5) The learned senior counsel, Mr. Jha (G.A.2), raised only one question of law that the learned Court below has not considered regarding partial eviction as provided under Section 11 (1) (c). Except this, no other ground have been raised. The learned counsel relied upon 1985 P.L.J.R. 727 and 1981 P.L.J.R. 336. (6) On the other hand, the learned counsel appearing for the respondents submitted that partial eviction cannot be considered in this First Appeal, particularly when the defendants neither pleaded nor gave evidence to the said effect and moreover the appellants are running N.C.C. office in the suit premises. So, it will not be just and inconvenient for the plaintiff to reside in one part of the suit premises and allow the defendants 3 to run N.C.C. office in the other part of the premises. The learned counsel further submitted that in fact in the Execution Case No.5 of 1984, the appellants filed an application on 17.01.1998 stating that the Government of Bihar has approved a new premises in Bhagalpur for N.C.C. group Headquarter and the suit premises will be vacated immediately on Court’s order and the office will be shifted to the said approved new building. This application has been annexed as Annexure ‘B’ to the Interlocutory Application No.4163 of 2010. On the basis of this, the learned counsel submitted that still the appellants are not agreeable and they are not offering or making out a case that the plaintiff’s requirement will be substantially met by partial eviction and they are ready to run their office in one part. (7) In view of the above contentions of the parties, the only point arises for consideration in this Appeal is as to whether the impugned Judgment and Decree is vitiated for non-consideration of proviso to Section 11 (1) (C) of the B.B.C. Act, 1982. F I N D I N G S (8) From perusal of the decision reported in 1981 P.L.J.R. 336 (Arun Kumar Sah Vs. Md. Basir Ahmad), it appears that before this Court in Second Appeal which was submitted by the appellant tenant that the position of the premises was such that even after allowing tenant to continue in occupation of a portion of the suit premises the personal requirement of the plaintiff land lords may be substantially satisfied by evicting the tenant from a portion to enable the plaintiff to construct a stare case and in such circumstances, this Hon’ble Court held that the proviso refers to the agreement of the tenant and is conditioned by such an agreement. In the present case as stated above the defendants- appellants never agreed that before the trial Court or even before this 4 Court that they are ready to reside in part of the suit premises. There was no pleading and no evidence also. As has been stated above instead of agreeing for partial eviction, they filed an application in the executing Court to the effect that as soon as the Court ordered they will shift the office to the new building. (9) So far 1985 P.L.J.R. 727 (Om Prakash Sharma Vs. Kishun Mishtry) is concerned, it appears that in that case, the tenant has pleaded in the written statement that the premises is too small to be shared and, therefore, this Court held that in such circumstances the Court is not obliged to consider the question of partial eviction. In the present case at our hand, there is no pleading by either party and moreover the appellants are running the office of N.C.C. in the suit premises. (10) In recent decision reported in 2007 (4) P.L.J.R. Mostt. Jagtarna Kuer Vs. Lalmuni Kuer, this Court has held that when no plea of partial eviction is taken in the pleading or in the evidence before trial Court or lower appellate Court that the requirement of party would be satisfied by partial eviction such plea cannot be allowed to be raised in Second Appeal. Plea of partial eviction has to be raised by the defendant in his written statement and in his deposition. The said plea cannot be decided suo motu. (11) From a bare perusal of the proviso to Section 11(1) (C) of B.B.C. Act, it appears that it clearly provides that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly. Therefore, this proviso is attracted when the tenant agrees to partial occupation. If the tenant did not agree there is no question of deciding 5 partial eviction arises. In the present case at our hand, the appellants neither pleaded in the written statement nor deposed in the evidence and did not even offer orally during the hearing of this First Appeal that they are ready to occupy partially the suit premises. On the other hand, they gave an assurance to the executing Court that they will be vacating the suit premises and shifting the office to the newly approved building. In such circumstances, in my opinion, on the ground of proviso to Section 11 (1) (C) of the Bihar Building Lease Rent and Eviction Control Act, 1982, the matter cannot be remanded back to the Court below. It is well known that before passing decree for partial eviction, the Court must be satisfied that the landlord and tenant can both conveniently occupy the same house as two units. The power cannot be used in a manner as if the court has to partition the building between to co-sharers. Moreover, in the present case, plaintiffs are two persons and they themselves require separate unit for residence. I, therefore, find that in the facts of this case, the tenant being state and separate building is approved on the ground of partial eviction, they can not be allowed continue in portion of suit premises. (12) In view of my above discussion, in my opinion, the impugned Judgment and Decree passed by the learned court below cannot be said to be vitiated because of non-consideration of proviso to Section 11 (1) (C) of the B.B.C. Act. (13) I, therefore, find that this Appeal has got no merit and accordingly this First Appeal is dismissed. The stay order granted by this Court is vacated. In the facts and circumstances of the case, there shall be no order as to cost. Patna High Court, Patna Dated 28 th ,July, 2010 AFR/ Sanjeev (Mungeshwar Sahoo, J.)