IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No. 145 of 2007 1. Abhay Kumar @ Abhay Kumar Sinha 2. Arbind Kumar Sinha, both sons of late Jagat Narain Prasad, Propritor Miss. J.S. Farma Pulpar Khandan Road, Bihar Sharif, District-Nalanda, R/o Mohalla Amber, P.S. Biharsharif, District – Nalanda. …….Defendants-Respondents-Appellants. Versus Most. Raunak Parveen, W/o Late Mahmad Alam Gir, R/o Mohalla Chhajju, P.S. Bihar, District Nalanda. ……..Plaintiff-Appellant-Respondent. For the appellants : Mr. Bishwanath Choudhary, Advocate. For the respondent : M/s Farookh Ahmad Khan and Amar Nath Singh, Advocates. ----------- 05/ 13.05.2009 Heard learned counsel for the parties. 2. This second appeal has been filed by defendants- respondents-appellants challenging the judgment and decree of the learned court of appeal below. 3. The matter arises out of Eviction Suit No.09 of 2004 which was filed by the sole plaintiff-appellant-respondent for eviction of the defendants on the ground of default in payment of rent by the defendants and bonafide personal requirement of the plaintiff with respect to the suit premises which was admittedly a shop katra measuring 5 feet wide and 8 feet in depth. The defendants admitted that the plaintiff was the owner of the said property and there was relationship of landlord and tenant between the plaintiff and the defendants and the rent was Rs.575.00 per month, but contested the suit on the grounds that neither they defaulted in payment of rent nor the plaintiff had any bonafide requirement of 2 the suit premises. 4. The said eviction suit was dismissed on contest by the learned Munsif, Biharsharif vide his judgment and decree dated 15.05.2006 holding that neither the defendants defaulted in payment of rent nor the plaintiff had bonafide personal requirement of the suit premises. Against the aforesaid judgment and decree of the trial court the plaintiff filed Eviction Appeal No.04 of 2006 which was partly allowed by the learned District Judge, Nalanda vide his judgment and decree dated 31.03.2007 holding that default by the defendants in payment of rent had not been proved by the plaintiff, but he found that the plaintiff had bonafide personal requirement of the suit premises and on that ground the plaintiff’s claim for eviction of defendants was decreed. 5. From the arguments of the parties as well as from the materials on record, including the impugned judgments and decree of learned courts below it is quite apparent that there is concurrent finding of both the learned courts below that there is no default in payment of rent and furthermore with respect to the said finding of the lower appellate court neither any appeal nor any cross appeal had been preferred by the plaintiff, hence it has attained finality. So far the question of personal necessity of the plaintiff over the suit premises is concerned, the trial court has rejected the claim of the plaintiff but the lower appellate court has reversed the said finding of the trial court and allowed the plaintiff’s claim on that ground by the impugned judgment and decree. 3 6. It transpires that the claim of the plaintiff as pleaded in the plaint was that she wanted to start her business of Sringar in the suit premises as she had no other source of income except the monthly rental for her premises from some tenants, but it was not sufficient as the cost of living has increased steeply and she was unable to maintain her children from that meagre income, as her husband has already died earlier. She had also claimed that the suit premises was best suited for the business she intends to start. 7. After considering the pleadings and evidence of the parties as well as the findings of the learned trial court, the learned court of appeal below specifically found that although plaintiff had vacant premises at a different place but that had remained vacant since several years even during the lifetime of her husband which clearly showed that it was not fit for the business which the plaintiff intended to do. It was also found that the plaintiff had fully proved that the suit premise was suitable for her business and in any view of the matter it was the choice of the landlord/landlady which had to be considered and the tenants cannot dictate her to use a certain premises. 8. The learned court of appeal below also found that the defendants had failed to establish that which and how many shops of the plaintiff were vacant and what was the income she was getting from her tenants, whereas the plaintiff had been able to prove that it was not a mere wish or desire of the plaintiff to open a shop or to start business in the suit premises, rather she reasonably required the 4 suit premises in good faith and for bonafide necessity. So far the question of partial eviction is concerned, the learned court of appeal below had also considered the same and had found that neither partition of the suit premises was possible nor partial eviction of the defendants would satisfy the requirement of the plaintiff. 9. Learned counsel for the appellant also raised another point that both the learned courts below have found and held that Rs.40,000.00 had been advanced by the defendants to the husband of the plaintiff. Learned counsel for the plaintiff-respondent submits that no doubt the said advance has been made but substantial rent has been adjusted from that amount. However, this matter cannot be considered here in this second appeal and the defendants-appellants would be at liberty to raise the said issue before any appropriate forum for realization or adjustment of any amount due from the plaintiff-respondent. 10. Considering the aforesaid facts and circumstances, it is quite apparent that the findings of the learned court of appeal below, which is final court of fact, are findings of facts based upon full and proper consideration of the pleadings and evidence of the parties and hence this court does not find any illegality in the same, 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. harish/ ( S.N.Hussain, J)