IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1926 of 2009 MOSTT. BEBEY DEVI WIDOW OF LATE Kari Yadav, resident of village Bishanpur, Police Station and District Begusarai …Defendant in the court below.. Petitioner Versus 1.MOSTT. RAMSAKHI DEVI widow of late Sukhdeo Dass, 2. Purushottam Das son of late Sukhdeo Das, Both residents of village Chak Sikandar, Saidpur, Dhan alias Ratanpur Tola, Telia Pokhar Pargana- Malki, P.S. and District Begusarai, Plaintiffs in the court below..Opp. Parties For the Petitioner: Mr. Rajeev Ranjan Sinha, Advocate For the O.P. :Mr. Mukund Jee, Advocate ----------- 12 26.08.2010 This Civil Revision filed under section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter to be referred to as “the Act”) is directed against the order dated 31.07.2009 passed by the Munsif 2nd, Begusarai in Eviction Suit No. 2/04 directing the defendant-petitioner to vacate the suit premises and hand over the vacant possession to the plaintiffs-opposite parties within sixty days, failing which, the plaintiffs will be entitled to get recovery of possession of the suit premises through the process of the court. The plaintiffs-opposite parties brought Eviction Suit No. 2/04 for recovery of possession of the suit premises appertaining to Khata No. 318, Khesra No. 346, 2 Touzi No. 876, having an area of 1 katha 15 dhurs with Disco house and Sahan from the tenant, i.e. the defendant- petitioner herein. The case of the plaintiffs, as set out in the plaint, is that 14 kathas 2 dhurs of the aforesaid land was purchased by Meghraj Rai, Achchey Rai and Dwarika Rai, all sons of late Shyam Rai, through a registered sale deed. The aforesaid persons transferred the land held and possessed by them in favour of Dhanik Lal Mochi and Amir Mochi, who were the ancestors of the plaintiffs, by executing a registered sale deed dated 12.11.1938. The suit premises was allotted to the plaintiffs by a partition in the family, upon which construction of Disco house and Sahan had been made and a portion of the land remained vacant. The suit premises was let out in favour of the defendant- petitioner in the year 2002 on monthly rent of Rs. 150/- and since then the defendant is coming in possession thereof. Subsequently, the plaintiffs required to open a shop for sale of shoes, and, thus, requested the defendant to vacate the suit premises, however, the defendant did not pay any heed to that request and, ultimately, when on 15.02.2004 she refused to vacate the suit premises and the 3 cause of action had arisen to the plaintiff for filing the instant eviction suit. The defendant-petitioner appeared and contested the suit by filing written statement and has stated that on part of the suit land i.e. an area of 10 dhurs the plaintiffs are in possession, however, the defendant is in possession of the suit premises since about last 25 years and is living in the concerned construction, which consists of thatched roof. The case of the defendant is that on the permission of the father of the plaintiff, the defendant is living there since several last decades and for last 22 years she is living there along with her family. That apart, it has been alleged that in the year 2003 the plaintiff offered to sell 10 dhurs of land out of the aforesaid suit premises for the total consideration of money of Rs. 50,000/-, out of which Rs. 20,000/- was given as advance and rest amount was to be handed over to the plaintiffs after registration. Other allegations, set out in the plaint, have been denied. Further case of the defendant is that even after accepting the advance of Rs. 20,000/- on one pretext or the other, the plaintiffs did not execute the sale deed. The trial court on the basis of the pleadings of 4 the parties had framed the issues. The main issues for determination of the suit were as follows: (i) Whether there is relationship of landlord and tenant in between the plaintiffs and defendant? (ii) Whether the plaintiffs need the suit premises for making their bona fide personal requirement ? (iii) Whether the requirement of the plaintiffs could be satisfied by partial eviction of the defendant from the suit premises ? Upon consideration of the materials on record including the evidence led by the parties, both documentary as well as oral, and consideration of rival submissions the trial court recorded the following findings:- (1) There is a relationship of landlord and tenant in between the plaintiffs and defendant and the suit premises was let out by the plaintiffs to the defendant orally on month to month tenancy basis; (2) The plaintiffs bona fide require the suit premises for personal use i.e. for opening a shop for selling shoes; 5 (3) The plaintiffs’ requirement cannot be satisfied by partial eviction of the defendant from the suit premises. Thus, the order has been passed in favour of the plaintiffs directing the defendant to vacate the suit premises and hand over the vacant possession of the same. I have heard the learned counsel for the parties and perused the records of this case. Learned counsel for the petitioner submitted that there is no relationship of landlord and tenant in between the plaintiffs and defendant and upon the suit premises the defendant-petitioner was inducted by the husband of the plaintiff no. 1 and the father of the plaintiff no. 2 several decades ago and since then after thatching the roof of the Disco house, the petitioner is living with his family fore more than 22 years. That apart, it has been contended that 10 dhurs of land out of the suit premises was agreed to be sold by the plaintiff and upon payment of consideration amount of Rs. 50,000/-, out of which Rs. 20,000/- had already been paid to the plaintiffs. However, subsequently, the plaintiffs have refused to execute the sale deed and, thus, it cannot be held that there existed the relationship of 6 landlord and tenant in between the plaintiffs and defendant. Learned counsel further submitted that the court below has wrongly held that the plaintiffs are in bona fide need of the suit premises for opening a shop for sale of shoes. It has been contended that in fact, the plaintiff no. 2 was working in Delhi as a labourer and, thus, there was no requirement at all for opening a shop in the suit premises and the suit has been filed on such pretext only with a view to dislodge the petitioner from the suit premises. It has also been urged on behalf of the petitioner that there has been lack of proper consideration of the issue with regard to partial eviction of the suit premises, as the suit premises is having constructed area and also vacant land. Learned counsel also submitted that by now it is well settled that proviso to Section 11(1)(c) of the Act is quite emphatic and mandatory in nature and even if, the issue has not been pleaded either by the defendant, the court can require the defendant as well as the plaintiff to lead evidence to satisfy the requirement of the aforesaid provision or decide the issue on its own merit on the basis of the materials available on record, which, according to the petitioner, has not been done by the trial 7 court, which has negatived the issue of partial eviction only on the ground that the plaintiff has stated in paragraph 14 of the plaint that from partial eviction of the defendant his requirement would not be satisfied. Learned counsel for the plaintiffs-opposite parties, on the other hand, submitted that the trial court has thoroughly considered and made scrutiny of the entire evidence led on behalf of the parties and has held that there existed a relationship of landlord and tenant between the parties. The defendant could not substantiate her case by leading cogent evidence in that regard. So far the question of agreement for sale of the part of the suit premises is concerned, it has been noticed by the trial court that no document in support of such contention has been brought on record by the defendant and she has clearly stated that she has not filed any case for specific performance of contract when the plaintiffs refused to execute the sale deed. Apart from that, after consideration of the evidence the trial court has come to the conclusion that the plaintiffs have been able to prove the case regarding bona fide requirement of the suit premises, whereas the defendant could not bring cogent evidence in 8 support of her case. The trial court has held that even if it is held that the plaintiff no. 2 is working as labourer in Delhi, it does not go to show that the plaintiffs are not having any personal bona fide requirement in opening a shop for sale of shoes. Learned counsel also submitted that the finding on partial eviction has also been recorded and the trial court has found that from the partial eviction of the defendant personal requirement of the plaintiffs cannot be satisfied or fulfilled. Hence, it has been urged that the civil revision does not have any merit. Upon consideration of the submissions made on behalf of the parties, this Court is also of the opinion that the plaintiffs have been able to prove the relationship of landlord and tenant in between the plaintiffs and defendant as well as bona fide requirement of the suit premises for personal use. It is well settled that even if an agreement for sale has been made that question cannot be raised by the defendant and decided in a suit for eviction of the tenant. However, in the present case, the defendant could not produce even any document in support of her contention regarding such agreement nor has any suit been filed on her behalf for specific performance of contract. Thus, the 9 contention of the petitioner in this regard is not tenable at all. Learned counsel for the petitioner could not demonstrate, even before this Court, from the records that neither the evidence led on behalf of the plaintiffs was sufficient to hold that the plaintiffs have bona fide requirement of the suit premises nor could such cogent evidence led on behalf of the defendant could be pointed out, which would defeat the claim of the plaintiffs. Thus, it is held that there is no illegality in the findings recorded by the court concerned with regard to existence of the relationship of landlord and tenant in between the plaintiffs and defendant as well as bona fide requirement of the suit premises by the plaintiffs. However, while dealing with the question of fulfilment of bona fide requirement of the plaintiffs on partial eviction of the suit premises the trial court has recorded its finding only on the basis of the fact that the plaintiffs have clearly stated in their pleading that their requirement could not be fulfilled by partial eviction. By now it is well settled that the proviso to Section 11(1)(c) of the Act is quite emphatic and 10 mandatory in nature and the trial court was duty bound to record a finding to require adequacy of the partial eviction and the question is to be decided on the materials available on the record even if there is no pleading with regard to that question either by the plaintiffs or on behalf of the defendant. The trial court should have considered the dimension of the suit premises in question and the adequacy of the part of the suit premises or otherwise, which could have fulfilled the requirement of the plaintiffs. A Division Bench of this Court in the case of M/s Bihar Alloy Steel Limited v. Hari Shankar Worah (Properties) Limited and another, reported in 1987 Patna Law Journal Reports, 868, has taken notice of the provision, as contained in proviso to Section 11(1)(c) of the Act and has come to the conclusion that the Legislature has chosen to qualify the word, “satisfied” by the expression substantially, with a view to keep the interest of the tenant protected by providing occupation to him of the building in part, and granting to the landlord occupation to meet his reasonable requirement. In yet another decision in the case of M/s 11 Bharati Pustak Kendra and others v. Chhedi Lal Daruka, reported in 1992(2) Patna Law Journal Reports, 692 a Division Bench of this Court has held that the finding of the court recorded on the basis of willingness or unwillingness of the parties and making its own assumption based on that would not be valid and liable to be set aside. It is clear that while considering the question of partial eviction under the Act the court has first to consider the reasonable requirement of the landlord and then to consider as to whether reasonable requirement is specifically required only from part of the premises. This question has to be decided on the basis of the materials on record and not only on the basis of ipse dixit of the landlord or his desire to occupy as much area as he wants. Similar view has been taken by this Court in a catena of decisions rendered in cases of Smt. Sudha Devi and another v. Smt. Shanti Devi(1995(1) All Patna Law Reporter), Maheshwar Pd. Sharma v. Shobha Devi, (1998(1) All Patna Law Reporter) as well as Nagendra Prasad Barnawal v. Jitendra Pd. Barnawal(1998(2) PLJR, 582). Thus, in my view, the court below in the present 12 case has not considered the question of partial eviction according to the proviso to Section 11(1)(c) of the Act, but has decided the question only on the basis of assumption that the landlords have the desire to occupy the entire area and the same cannot be held to be a finding in accordance with law in view of the provisions as contained in proviso to section 11(1)(c) of the Act. In the result, this revision is allowed in part. The finding of the court below with regard to partial eviction is set aside and the matter is remitted back to the court below to consider the question of partial eviction in accordance with law according to the provisions as contained in proviso to Section 11(1)(c) of the Act in the light of the observations made above. The court below will afford opportunity to the parties to adduce evidence. It is made clear that none of the other findings recorded by the court below is disturbed and the same are kept intact. Since this is a suit for eviction on the ground of personal necessity, the case requires disposal with utmost expedition. Accordingly, I direct the court below to decide the aforesaid issue within four months from the date of receipt of the lower court records and a copy of this order. It is 13 further made clear that if the defendant-petitioner creates any hindrance in disposal of the suit within the aforesaid time fixed by this Court, then the court below will dispose of the suit on the basis of the material brought on record by the plaintiffs. In the facts and circumstances, there will no order as to costs. Let the lower court records be immediately sent back to the court concerned. SC ( Dr. Ravi Ranjan, J.)