IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1582 of 2006 RADHE PRASAD SAH Versus NAWAL KISHORE CHHAPOLIKA & ORS ----------- 15 21.1.2009 Heard Mr. Ashutosh Jha, learned Counsel appearing on behalf of the petitioner and Mr. Deepak Kumar Sinha appearing on behalf of opposite party no.1 and Mr. Neeraj Singh appearing on behalf of minor opposite party nos. 3 & 4. Reference may be made to the earlier order of this Court dated 12.1.2009 relevant portion whereof is quoted hereinbelow:- “Having perused the statement made in paragraph No.8 of the written statement and the findings recorded by the Court below, there would be little doubt about the existence of a registered lease of fixed term tenancy of five years with regard to premises in question. Explanations apart on the basis of this plea of five years, the parties to the suit have taken advantage or suffered for a period of almost ten years. Mr. Ashutosh Jha, counsel for the petitioner therefore prays and is allowed an adjournment for a period of four weeks to take instruction as to in what period the petitioner would vacate the premises in question.” Mr. Jha today however, has submitted that the petitioner could not be contacted and his son was not in a position to give any specific consent for vacating the 2 premises and as such, this Court may decide the issues on merits. Mr. Jha in fact while assailing the correctness of the impugned judgment and decree of eviction has confined his submission only on the following two issues namely :- (a) The court below has committed an error in holding that the lease deed, in question, prescribing the fixed term of tenancy, was not forged and fabricated. (b) There is apparent error in the impugned judgment because the court below has failed to record any findings with regard to the partial eviction. So far the first issue relating to the existence and validity of the lease deed is concerned, the court below has gone into this aspect of the matter at a great length and has recorded its findings for holding that the lease deed in question Exhibit-5 was neither forged nor fabricated and in fact was a valid piece of document, fully fit to be relied and acted upon. As a matter of fact, this Court also had found from the records of the Court below particularly from the written statement of the defendant-petitioner that it was virtually admitted by him that a registered lease deed was executed and was in existence. This would be because in paragraph no.8 of 3 the written statement, the following statement was made by the petitioner:- “8. That after the death of the father of the defendants, they had approached the plaintiff to grant the rent receipt in their names. The plaintiff and his son Nawal Kishore Chhapolika agreed after obtaining signature of the defendants on blank stamp paper at his residence saying that a Deed of Kirayanama will be executed on the said paper. The alleged Lease Deed as mentioned in paras 1 and 2 of the plaint has not been read over or explained to the defendants. The defendants could know regarding the contents of the said Deed after obtaining the certified copy on 11.9.2000. It is pertinent to mention here that the registration of the said Deed had been done by the then Registrar at the residence of the plaintiff as the defendants had not gone to the Registry office for execution of the said Deed. It is also pertinent to mention here that no agreement was done for any registered Deed.” Execution of such lease deed thus having been admitted by the petitioner, he also did not lead any evidence oral or documentary to prove that the lease deed Exhibit-5 produced by the plaintiff-landlord- opposite party was a forged document. It was well within the reach of the petitioner to make a prayer for comparison of the admitted signature of the persons on 4 the lease deed with the disputed signature on the lease deed but he did not discharge the onus on the issue. As a matter of fact the plaintiff landlord had also proved the existence of such lease deed by other contemporaneous documents such as Exhibit-3 and 3/A, the two connected letters of Registration Office, this Court has to hold that the petitioner had developed cold feet for proving his such plea. Infact such admission were made by the petitioner not only in the written statement but also in course of his deposition wherein he had accepted that he had the knowledge of existence of such lease deed right from the year 1994. The court below therefore, was perfectly justified in drawing an adverse inference against the conduct of the petitioner by holding that if the petitioner was already aware of such lease deed from 1994 prescribing a period of tenancy of only five years, it was difficult for any prudent person to believe that even then no action would have be taken by the petitioner for repudiating and/or denying the existence of lease deed. In this background the findings arrived by the court below, for the defence of the petitioner in course of hearing of the suit that the lease deed was forged and fabricated was not only his contradictory stand but without substance, does not suffer from any factual or legal infirmity. 5 As a matter of fact, the whole thing can be viewed even from an another angle inasmuch as the petitioner also does not deny much less questions, the findings recorded in paragraph no.7 of the impugned judgment wherein the court below has discussed the correctness of the receipts adduced in evidence (Exbt. 4 Series and Exbt. A Series). Such rent receipts are absolutely in conformity with the provisions made in the lease deed in question seeking enhancement of rent of Rs. 25 every year. It is not the case of the defendant-petitioner that there was any other stipulation between him and the plaintiff-landlord apart from the lease deed in question as with regard to the annual incremental enhancement of rent of Rs. 25/-. There being no denial by the petitioner to relationship of landlord and tenant his conduct of payment of rent to the plaintiff in terms of lease deed would also go to show that there was a lease deed whose terms and conditions were also acted upon by the petitioner. In presence of overwhelming evidence on the issue of lease deed, this court must approve the findings of the court below on this point and hold that there is no merit on the first point pressed by the learned counsel for the petitioner. This Court has not much to answer as with regard to the second issue namely absence of any finding with 6 regard to the partial eviction inasmuch as it is not the requirement of law under B.B.C. Act that in each and every suit for eviction, the trial court has to invariably record findings for partial eviction. That is so because under Section 11, six grounds have been specified for eviction of tenant as would be evident from the following provisions of Section 11 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 (hereinafter to be referred to as ‘the Act’):- “11. Eviction of tenants. – (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:- (a) for breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment; (b) where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of the tenant or of any person residing with the tenant or for whose behaviour the tenant is 7 responsible; (c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord: Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall hence forth constitute the building within the meaning of clause (b) of section 2 and the rent so fixed shall be deemed to be the fair rent fixed under section 5; Explanation I.- In this clause are word “landlord” shall not include an agent referred to in clause (f) of section 2. Explanation II. – Where there are two or more premises let out by the landlord, it will be to him and the tenant or tenants shall not be allowed to question such preference. (d) where the amount of [two months rent, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract, by the last day of 8 the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 16; (e) in case of tenant holding on a lease for a specified period, on the expiry of the period of the tenancy; and (f) the landlord requires the premises in [order to carry out any building work at the instance of the Government or the Municipality or Municipal Corporation or the Notified Area Committee or the Regional Development Authority or any other Authority within whose jurisdiction the building lies and such building work cannot be properly and fully carried out without the premises being vacated. (2) (a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building he shall give fifteen day’s previous notice in writing of his intention to do so to the landlord and to the District Magistrate who shall under intimation to the landlord within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government or direct that the landlord shall be put in possession of the building: Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the 9 building. (b) Where a building is vacated by a servant of the Government any person occupying such building other than the person referred to in clause (a) shall be liable to be evicted by the District Magistrate in such manner as may be prescribed: Provided that after a landlord has been or is deemed to have been put in possession of such building, he may let it to any person.” It would thus, be clear that the proviso introducing concept of partial eviction is referable only in case of eviction on the ground of personal necessity under Section-11(1((c) alone and is not applicable in cases of eviction on any other grounds as per 11(1) (a), (b), (d), (e) and (f). The legislature therefore, in its wisdom has not laid down the requirement of recording a finding on the issue of partial eviction in case of eviction even on the ground of default of payment of rent for two continuous months or in the case of the eviction on the ground of expiry of the period of lease or even on the ground of the requirement of the premises by the landlord in question of its any repair/renovation of the building at the instance of Government or municipality. In fact, this Court keeping into account Section 11 of the Act, would hold that it would be only in case where the eviction is to be allowed on a ground of personal 10 necessity in terms of Section 11(1)(c) of the Act that the a finding of partial eviction will have to be essentially recorded. The reliance of the learned counsel for the petitioner on a judgment of this Court in the case of Shyama Kant Jha & Anr. Vs. Smt. Shakuntala Pandey reported in 2004 (4) PLJR 843 seems to be wholly misplaced inasmuch as that was the suit in which eviction was sought both on the ground of personal necessity under Section 11(1)(c) as also on the ground of expiry of the term of lease in terms of Section 11(1)(e) of the Act. Therefore, if this Court in that context had held that recording of findings of personal eviction was a must, it cannot be said as a proposition of law that this Court has held that in each and every suit seeking eviction on the ground of expiry of terms of lease, there has to be also a finding on partial eviction. There being no other submission advanced by the counsel for the petitioner, this Court must hold that the impugned judgment and decree does not suffer from any error and consequently, this civil revision application being wholly misconceived must be dismissed. Keeping in view the fact that the premises in question was given on rent by way of lease only for five years i.e. up to 1999 and the petitioner has continued to remain in 11 possession for next ten years, the petitioner must handover the vacant possession of the premises within a period of thirty days from the date of receipt/production of a copy of this order. It goes without saying that as the civil revision application has been dismissed, the earlier interim order staying the further proceeding of the execution case, shall stand automatically vacated with a liberty to the plaintiff-landlord-opposite party to get the decree of eviction executed on expiry of the aforesaid period. In the result this application is dismissed but there would be no order as to costs. Rsh (Mihir Kumar Jha, J.)