IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.105 of 2007 VIJAY KUMAR BAIROLIYA @ BABLOO Versus SURENDRA PRASAD GUPTA ----------- 10/ 08.08.2008 Heard learned counsel for the appellant and learned counsel for the respondent. This second appeal arises out of Eviction Suit No. 02 of 1996 which was filed by father of the respondent for eviction of the sole defendant-appellant on the ground of personal necessity of his two sons for running their shops. In the said suit, the learned Munsif-II, Darbhanga found that there was relationship of landlord and tenant between the parties and the plaintiff had personal necessity of the suit premises. However, the learned trial court found that since the original plaintiff had claimed eviction of the defendant for opening two shops for his two sons, but the original plaintiff having died during the pendency of the suit, only one of his said two sons was substituted in his place as there was a partition in the family and the suit premises fell into the share of the substituted plaintiff, hence the necessity of the sole substituted plaintiff would be satisfied by partial eviction. Accordingly, the said suit was decreed in part by the said court vide judgment and decree dated 03.06.2006. The said finding with regard to partial eviction was challenged by the substituted plaintiff in Eviction Appeal No. 26 of 2006. However, the defendant did not file any revision against the said judgment and decree of eviction rather he merely filed a cross appeal in the said title appeal of the plaintiff. The said cross appeal was clearly not in 2 accordance with the provisions of law as such cross appeals can be filed only by a person, who was entitled to file an appeal but had not filed such an appeal, whereas in the instant case the defendant, who had lost in the trial court on the basis of the findings of relationship of landlord and tenant between the parties as well as personal necessity of the plaintiff, was not competent to file an appeal, rather the only remedy available to him was to file a revision under the proviso to sub-section 8 of Section 14 of the Bihar Building(Lease, Rent and Eviction Control) Act, 1982, but having not filed any such revision, the findings of the learned trial court with regard to relationship of landlord and tenant between the parties as well as the personal necessity of the plaintiff has attained finality. However, the defendant contested the said appeal filed by the plaintiff with respect to the finding of the trial court regarding partial eviction. The lower appellate court considered the matter in detail and found that the said matter was covered by a decision of this court in case of Sri Binod Kumar Gupta and another Vs. Smt. Pushpa Devi and another, reported in 2005(3) PLJR 719 in paragraph 10 of which reference had been made to several decisions, holding that the landlord cannot be saddled with the onus of proving as to whether the bonafide requirement can be substantially satisfied by the order of partial eviction as once the landlord has been able to prove his bonafide need of the premises, onus shifts on the tenant to prove that plaintiff’s requirement would be satisfied by partial eviction. However, in the instant case neither there is any pleading of the 3 defendant nor he has produced any evidence showing that the requirement of the substituted plaintiff would be satisfied by partial eviction. Hence, it is quite apparent that the defendant had miserably failed not only to prove but also to plead partial eviction and hence, there was no occasion for the learned court of appeal below to accede the claim of the defendant and having found the personal necessity of the plaintiff to be genuine, the suit should have been decreed in full. So far the question of non-examination of the substituted plaintiff is concerned, it may be noted that the original plaintiff has already deposed as plaintiff witness no.2 and moreover no adverse inference can be drawn from non-examination of the plaintiff landlord as has already been held by this court in case of Krishna Kant Pandey & another vs. Suniti Bala Sarkar, reported in 1988 PLJR 255. Considering the aforesaid fact and circumstances and the arguments of the parties 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. harish/ (S.N.Hussain, J.)