IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.398 of 2009 Lalpati Devi wife of Sri Shailendra Kumar Mishra, resident of Main Road, Shastri Nagar, Jehanabad, P.S. and District Jehanabad. ……Defendant-Respondent-Appellant. Versus Shailendra Kumar Mishra, son of Late Kamla Pati Shastri, resident of Mohalla Main Road Shastri Nagar, Town Jehanabad, P.O., P.S. and District Jehanabad. …….Plaintiff-Appellant-Respondent. For the appellant : M/s Ashok Kumar and Sashi Nath Jha, Advocates. For the respondent : None. ----------- 03/ 18.12.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the sole defendant-respondent-appellant challenging the judgment and decree of the learned court of appeal below. 3. The mater arises out of Title suit No.39 of 1995 which was filed by the sole plaintiff-appellant-respondent for eviction of the defendant on the ground of his bonafide personal requirement of the suit premises which according to the plaint was a garage measuring 20 ft. 6 inch in length and 13 ft. 3 inch in width. The sole defendant-respondent-appellant contested the suit claiming that there was no relationship of landlord and tenant between the parties, rather she was the legally wedded wife of the plaintiff and was residing in the house in that capacity and hence neither there was any relationship of landlord and tenant between the parties nor there was any occasion for her eviction under the provision of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’ for the sake of 2 brevity). 4. The learned Munsif, Jehanabad dismissed the suit on contest vide his judgment and decree dated 31.03.2006 holding that although admittedly plaintiff was the owner of the suit property, but he had failed to establish the relationship of landlord and tenant between the parties, hence the plea of personal requirement cannot be decided in favour of the plaintiff. It was also held that the defendant had claimed to be the legally wedded wife of the plaintiff but the said allegation comes under the provision of Section 3-7 of Chapter-III, specially under section 7(i) explanation (b), of the Family Court Act, 1984 for confirmation of matrimonial status of the party inter-se which was under the jurisdiction of Family Court and thus the trial court had no such jurisdiction to decide the said issue. 5. Against the aforesaid judgment and decree of the trial court the plaintiff filed Title Appeal No.09 of 2006 which was allowed by the learned Additional District Judge-IV, Jehanabad vide his judgment and decree dated 27.06.2009 after holding that from the pleadings and evidence of the parties, it was quite apparent that the defendant was residing in the suit premises as a tenant of the plaintiff and not as his legally wedded wife and hence there was clearly a relationship of landlord and tenant between the parties. It was also held that the plaintiff had bonafide requirement of the suit premises as the entire ancestral property had been partitioned and a house along with the garage which was the 3 subject matter of the suit was allotted to the share of the plaintiff and the garage being in possession of the defendant as tenant, the plaintiff had no other way for his ingress and egress from his house and hence he used the land of his co-sharer for that purpose, but subsequently the co-sharer asked him to stop using his land. On the point of partial eviction, the learned court of appeal below found that no party had argued on that point and going through the details of the garage it was found that the plaintiff was in need of total portion of the suit premises. 6. The said judgment and decree of the learned court of appeal below has been challenged by the defendant in the instant second appeal claiming that she was in possession of the house as legally wedded wife of the plaintiff and not as a tenant and hence the claim of the plaintiff was fit to be rejected outright. It was also claimed that there is no valid material to show the relationship of landlord and tenant between the parties and hence the claim of the plaintiff is absolutely frivolous. It was further claimed that from the pleadings and evidence it is quite apparent that it was merely desire of the plaintiff to oust the defendant and there was no bonafide requirement at all. 7. So far the question of partial eviction is concerned, learned counsel for the appellant has stated that the law is well settled that the plaintiff had to show his requirement of the entire premises and the court allowing plaintiff’s claim has to make an enquiry in that matter and only thereafter to come to any 4 conclusion but that was not done by the learned court of appeal below. Hence, he submits that the impugned judgment and decree of the learned court of appeal below is fit to be set aside. 8. After considering the averments made by learned counsel for the appellant and after perusing the material on record, including the impugned judgments and decree of the learned courts below it is quite apparent that the title of the plaintiff is admitted and the question in dispute is as to whether the defendant was a tenant of the plaintiff or was his wife. So far the question of the defendant being the wife of the plaintiff is concerned, it definitely comes within the jurisdiction of the Family court and has to be decided under the provisions of the Family Court Act, but here in the instant case it had only to be seen as to whether there was any relationship of landlord and tenant between the parties. 9. The learned trial court has come to the conclusion that there was no relationship of landlord and tenant between the parties but the said finding has been arrived at by the learned trial court without considering the oral evidence of the parties on the said issue and that too in absence of any document of tenancy. However, the learned court of appeal below not only considered the documentary evidence including the receipts etc. but also considered in detail the pleadings of the parties ad well as the depositions of the witnesses examined on their behalf, whereafter it has rightly come to the conclusion that the relationship of 5 landlord and tenant between the parties had been fully proved. 10. The learned court of appeal below had also incidentally looked into the other aspect of the matter and had found that the plaintiff had filed several documents like Bank Account of the defendant in which the name of her husband had been shown as Chandra Mohan Pandey as well as certified copy of judgment of the Family court (Ext.2) in which the claim of the defendant that she was legally wedded wife of the plaintiff Shailendra Kumar Mishra had been disbelieved. In the said circumstances the learned court of appeal below was quite justified in arriving at the finding that there was relationship of landlord and tenant between the parties. 11. So far the question of bonafide personal requirement is concerned, it is apparent from the plaint that the subject matter of the suit was a garage measuring 20 ft. 06 inch in length and 13 ft. 3 inch in width in front of the house of the plaintiff. It was also not in dispute that the entire ancestral house was partitioned between the co-sharers and the petitioner had got the house and had no other space for his ingress and egress except the said garage which was in occupation of the defendant due to which he had to use the land of his co-sharers, but the other co- sharer had asked him to use his own land, whereafter the plaintiff obviously required the suit premises for making Rasta for his ingress and egress to his house. Strangely enough the defendant had claimed in her written statement that she was living in the 6 house of the plaintiff along with him, hence the reason of her contest with regard to the garage is absolutely unexplained which clearly shows that the defendant merely wanted to harass the plaintiff on one pretext or the other. Moreover, the plaintiff requiring the suit premises for his ingress and egress was validly proved by oral and documentary evidence which fully supported his claim of bonafide personal requirement. 12. So far the question of partial eviction is concerned, the learned court of appeal below considered it in paragraph-14 of its judgment and came to the conclusion that no party had argued on the said point and after going through the details of garage it was found that the plaintiff was in need of total portion of the suit premises. The law is well settled in this regard that plea of partial eviction must be raised in the written statement and depositions of the defendant and the onus is on the tenant to show that partial eviction shall satisfy the personal requirement of the plaintiff. It is quite apparent from the pleadings and evidence of the parties that the requirement of the plaintiff was reasonable with respect to the entire suit premises and it could not substantially be satisfied by ordering partial eviction of the defendant. Reference in this regard may be made to decisions of this court in case of Food Corporation of India & Ors. Vs. Vishun Properties & Enterprises & Ors., reported in 1995 B.B.C.J. 711 and in case of M/s Bata India Ltd. Vs. Dr. Md. Qamruzzama, reported in 1993(1) P.L.J.R. 87 (paragraph-6) and also in case of 7 Haveli Ram Bhatia Vs. Smt. Rajwanti Devi and others, reported in 1984 P.L.J.R. 207. It has been held that when it is envisaged from the judgment that the judge was aware on the point of partial eviction the compliance of section concerned was complete. Here, in the instant case there is neither any pleading nor evidence of the defendant to show that the plaintiff would be satisfied by partial eviction whereas the plaintiff had specifically claimed eviction of the entire suit premises. However, in any view of the matter the plaintiff’s requirement was a Rasta for his ingress and egress from his house and the width of the garage is merely 13 ft. 03 inch which appears to be necessary for the plaintiff as vehicles can pass through it towards the house of the plaintiff and it could also be used to park it. 13. In the said circumstances, the defendant had miserably failed to show any question of law much less any substantial one in support of his claim. Hence there being no illegality in the impugned judgment and decree of the learned court of appeal below, this second appeal is dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S. N. Hussain, J. )