IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.360 of 2008 Baidya Nath Prasad son of Late Sachchita Nand Pd., resident of Mohalla-Naya Bazar, P.O. Siwan, P.S. Siwan Town, District-Siwan. ……Defendant-Appellant-Appellant. V e r s u s Umashankar Prasad son of Late Kali Prasad, resident of Mohalla-Naya Bazar, P.S. Siwan Town, District- Siwan. …… Plaintiff-Respondent-Respondent. For the appellant : Mr. Yogendra Prasad Sinha, Advocate. For the respondent : Mr. Chandra Kant, Advocate. ----------- 05/ 04.02.2009 Heard learned counsel for the appellant and learned counsel for the respondent. 2. This second appeal has been filed by the sole defendant- appellant-appellant against the judgments and decree of both the learned courts below. 3. The matter arises out of Eviction Suit No. 21 of 1995 which was filed by the sole plaintiff-respondent-respondent for eviction of the sole defendant from the suit premises which is a shop room, on the grounds of personal necessity of the plaintiff as well as the default in the payment of rent by the defendant. 4. The said suit was decreed by the learned Munsif-I, Siwan on contest without cost vide judgment and decree dated 04.08.2004. Against the aforesaid judgment and decree of the learned trial court, the defendant filed Title Appeal No. 35 of 2004, which was dismissed on contest without cost by the learned Additional District Judge-cum-Fast Track Court No.III, Siwan vide his judgment and decree dated 18.07.2008. The said judgments and decree of the 2 learned courts below are under challenge in the instant second appeal. 5. In the instant case, admitted facts are that the plaintiff is the owner of the suit property and there is relationship of landlord and tenant between the parties. The dispute is only with regard to default in payment of rent for the months of September and October, 1995 as well as personal necessity of the plaintiff. 6. So far the question of default is concerned, there is statement of witnesses on behalf of both the parties contradicting each other and there is no documentary evidence. However, the plaintiff had claimed that defendant stopped paying rent from September, 1995 but the defendant claimed that he had always paid rent to the plaintiff and when plaintiff refused to receive the same the defendant sent rent through money orders but no receipt of money order had been filed by the defendant. In the said circumstances after perusal of the witnesses of the parties, the learned courts below found that the oral evidence of the plaintiff was more reliable and proved that defendant had not paid rent and had become defaulter. It was also found that much before August, 1995 the rent was enhanced at the instance of both the parties from Rs.75.00 to Rs.150.00 per month. The said findings are findings of fact based on evidence and this court does not find any illegality in the said findings. 7. So far the question of personal necessity of the plaintiff is concerned, the learned courts below specifically found that the 3 plaintiff had been able to prove by his evidence that he had bonafide personal requirement of the suit premises. The defendant had claimed permanent tenancy of the suit premises but the learned courts below found the said claim to be malafide and in the teeth of the decision of Hon’ble Apex Court in case of Smt. Fatima Bee vs. Mohamood Siddiqui, reported in A.I.R. 1996 SC 2537 that malafide claim of permanent tenancy will be a separate ground for eviction of the tenant who has raised that claim. In any view of the matter, the finding of personal necessity is a concurrent finding of fact based on evidence which cannot be interfered with in this second appeal. 8. So far the question of partial eviction is concerned, it has also been a settled law that in a case where such claim/suit of the plaintiff is allowed on both the grounds of default and personal necessity, the question of partial eviction need not be considered (see, the decision of this court in case of Most. Jagtarana Kuer & Ors. vs. Lalmuni Kuer & Ors., reported in 2007 (4) PLJR 98). 9. In the said circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. 10. After the aforesaid judgment was pronounced, learned counsel for the defendant-appellant at the instance of his client submits that he is running his shop in the suit premises since several 4 decades and hence at least six months time be given to him to vacate the suit premises and pay the decretal amount, etc. Learned counsel for the plaintiff-respondent hesitated in the beginning but subsequently at the instance of his client agreed that time till 31st July, 2009 may be granted to the defendant-appellant for vacating the suit premises and paying all the dues but that should be final. 11. In the aforesaid facts and circumstances and on the basis of the agreement arrived at by both the parties time till 31st July, 2009 is granted to the defendant-appellant to vacate the suit premises fully and hand over possession of the suit property to the plaintiff-respondent in the same condition as it is at present and also to pay all the decretal amount as well as rent up to July, 2009 at the same rate of Rs.150.00 per month to the plaintiff-respondent. It may be noted that no further extension shall be granted and the defendant-appellant must comply the aforesaid order within the prescribed time failing which not only the execution case shall be revived but also the defendant-appellant shall be personally held guilty for disobeying the specific order of this court and violating his undertaking given through his lawyer before this court. In the meantime the execution case shall remain stayed and the plaintiff- respondent shall not take any step for ousting defendant-appellant. harish/ ( S.N.Hussain, J.)