CIVIL REVISION No.354 OF 2008 --------- Against order dated 12.02.2008 passed in Title Eviction Suit No.25/1995 by Shri Rajesh Singh, MJunsifr, Patna, City. -------- Chadradeep Kumar, son of Sitaram Panwala, resident of Mohalla Kanodia Market, Nai Sarak, Guru Govind Singh Path, Patna City, P.C. Chowk District Patna. ….Defendant/Petitioner versus Gatrumal Kanodia, son of late Madan Lal Kanodia, resident of Mohalla Chowk Shikarpur, Patna City, P.S. Chowk, District Patna. ------ Plaintiff- Opposite Party. -------- THE HON'BLE MR. JUSTICE S.NAYER HUSSAIN ……….. For the Petitioner : Shri D. K. Sinha, Sr. Advocate and Sri Bajrang Lal, Advocate. For the Opp. Parties: Sri Shashi Shekhar Dwivedi, Sr. Advocate, Mr. Ravi Shankar Dwivedi, Advocate, Mr. Ranjan Kumar Dubey, Advocate --------- S. N. Hussain, J. This civil revision has been filed by the defendant-petitioner under the proviso to section 14(8) of the Bihar Building (Lease, Rent and Eviction ) Control Act (hereinafter referred to as `the Act’ for the sake of brevity ) challenging the order of his eviction vide judgment dated 12.02.2008, by which the learned Munsif, Patna City, allowed Title Eviction Suit No. 25 of 1995 2. The aforesaid suit was filed by the sole plaintiff-opposite party for eviction of the sole defendant-petitioner from the suit premises, namely, a shop at the ground floor of his building, on the ground of personal requirement as he wanted to do his business of export and import of pickles, ghee, coffee and garments in the said premises, for which he has already obtained licence from the authorities concerned. 2 3. It was further claimed by the plaintiff that the suit property originally belonged to one Gopi Kanodia, who had a son Vinod Krishna Kanodia and the said Vinod Krishna Kanodia had a wife Pushpa Kanodia and three sons, namely, Uday Krishna Kanodia, Abhay Krishna Kanodia and Saday Krishna Kanodia. It was also claimed that the aforesaid owner Gopi Kanodia executed a Will dated 25.10.1971 with respect to the suit premises in favour of his daughter-in-law Pushpa Kanodia and immediately after the death of the testator, namely, Gopi Kanodia, the legatee, namely, Pushpa Kanodia filed Probate Case No.11 of 1993 for probate of the Will, which was allowed by the competent court by order dated 05.07.1997. 5. Learned counsel for the plaintiff further claimed that in the meantime on 01.09.1994 the said Pushpa Kanodia sold several shops including the suit shop by a registered deed to the plaintiff Gatrumal Kanodia and also informed the defendant about the said sale as well as the assignment of tenancy and since then the plaintiff became the exclusive owner of the suit premises and there was relationship of landlord and tenant between the parties. It was also asserted by the plaintiff that he had bona fide requirement of the entire suit premises for starting his business of export and import of the articles mentioned above for which he has already got due licence from the authorities concerned. 6. On the other hand, the defendant appeared and contested the suit claiming that neither the plaintiff was owner of the suit premises nor there was any relationship of landlord and tenant between the parties, nor even the plaintiff had any bona fide personal requirement of the suit premises and hence the suit was fit to be dismissed. 7. After considering the respective claims of the parties, the learned court below framed the following issues for deciding the eviction suit :- (i) Whether the suit is maintainable ? 3 (ii) Whether the plaintiff has any cause of action to file the suit ? (iii) Whether there is relationship of landlord and tenant between the plaintiff and the defendant ? (iv) Whether the plaintiff has genuine and bona fide personal requirement of the suit premises? (v) Whether the requirement of the plaintiff could be fulfilled by partial eviction of the defendant from the suit shop ? 8. On the aforesaid issues, both parties led their evidence and placed their arguments before the learned court below, whereafter the learned court below after arriving at the following findings decreed the suit by the impugned judgment dated 12.12.2008 and passed an order directing the defendant to vacate the suit shop :- (a) The suit is maintainable. (b) The plaintiff has got good cause of action for filing the suit. (c) There is relationship of landlord and tenant between the plaintiff and the defendant. (d) The plaintiff has got bona fide and genuine personal requirement of the suit premises and his requirement would be fulfilled by eviction of the defendant from the entire suit premises and not from part thereof. 9. Against the aforesaid order of eviction passed by the learned court below, the defendant-petitioner has filed the instant civil revision under the Proviso to section 14(8) of the Act, stating that in a suit for eviction under the Act, personal necessity of only the owner can be considered, but here the plaintiff not being able to prove his ownership of the suit premises, the suit for eviction was fit to be rejected. 10. Learned counsel for the defendant-petitioner has submitted that although Probate Case No. 11 of 1993 was filed by Pushpa Kanodia in the year 1993, but much before the said probate case was allowed on 05.07.1997, the said Pushpa Kanodia executed a registered deed of gift dated 01.09.1994 with respect to 4 several shops, including the suit shop, in favour of the plaintiff. Hence, the said sale-deed was illegal and void and conferred no title upon the vendee (plaintiff) as the vendor (Pushpa Kanodia ) had herself no right, title or interest in the suit premises on the date of sale as no order was passed in the said probate case till then. Hence, he submitted that the plaintiff having not acquired any right, title and interest in the suit premises by the aforesaid sale-deed of 1994, he was obviously not the owner of the suit premises and had no right to file the suit for eviction of the defendant on the ground of his personal necessity. 11. Learned counsel for the defendant-petitioner further claimed that there was an agreement for sale dated 14.07.1994, which was executed by heirs of Gopi Kanodia with respect to the premises including the suit shop in favour of one Nagar Mal Agrawal, who filed Title Suit No. 159 of 1999 against Pushpa Kanodia, her husband and three sons for specific performance of agreement for sale dated 14.07.1994 and the said suit was decreed by the trial court on 13.10.2000. It is further stated that the defendant-petitioner was inducted in the suit premises by Gopi Kanodia to whom he paid rent and, thereafter, he paid rent to others, who were only rent collectors and hence there had never been any relationship of landlord and tenant between the plaintiff and defendant. 12. Learned counsel for the petitioner further claimed that the plaintiff is a moneyed man having several big buildings in Patna City several portions of which are vacant but he has filed the instant case only with a view to oust the defendant for collecting pagadi and higher rent. So far question of partial eviction is concerned, he has submitted that the learned court below has considered the said issue very cursorily without looking into the area of the suit premises and the requirement claimed by the plaintiff. 5 13. On the other hand, learned counsel for the plaintiff-opposite party opposed the contention of learned counsel for the petitioner and submitted that it is not in dispute that Gopi Kanodia executed a Will in favour of his daughter-in-law Pushpa Kanodia on 25.10.1971 and hence the suit property vested in her immediately after his death about the year 1993. Hence, he claimed that legatee Pushpa Kanodia after the death of the testator became the owner of the suit property and was quite justified in transferring the same by registered document to the plaintiff on 01.09.1994. He also averred that an agreement for sale does not confer title on any one and even after Title Suit No. 159 of 1999 filed by Nagar Mal Agrawal for specific performance of agreement for sale dated 14.07.1994, was decreed on 30.10.2006, no sale-deed has been executed by the defendant of the said suit or by the Court in continuation thereof and the said judgment and decree of the title suit is under challenge before this Court in F.A. No. 16 of 2007. He further submitted that the plaintiff of the eviction suit was not a party to the aforesaid title suit and hence the decree passed therein is not even binding on him. 14. Learned counsel for the plaintiff-opposite party also submitted that he has proved by evidence that after his purchase of the suit premises, he was paid rent by the defendant with respect to the suit premises and hence there was relationship of landlord and tenant between him and the defendant. It is further submitted by learned counsel for the plaintiff-opposite party that the defendant claims to be the tenant of Gopi Kanodia but after the death of Gopi Kanodia prior to 1993, Gopi Kanodia cannot be his landlord, thus the defendant not even claiming to be a tenant of Nagar Mal Agrawal or any one else, it is quite apparent that he is the tenant of the plaintiff-opposite party. 15. Learned counsel for the plaintiff-opposite party further submitted that it was fully proved by legal and valid evidence that the plaintiff had bona fide 6 requirement of the suit premises for the purposes mentioned by him and he required the entire suit premises for the said purpose without any partial eviction, but the said claim of the plaintiff could not be disproved by the defendant by his pleading and evidence and hence the learned court below was quite justified in decreeing the suit. 16. From the pleadings of the parties as well as the evidence produced by them, it is quite apparent that the defendant-petitioner is not claiming any title in himself over the suit property rather he claims that he was tenant of Gopi Kanodia and there is no relationship of tenant and landlord between him and the plaintiff- opposite party who is also not the owner of the suit premises. However, it is an admitted fact that the suit property was owned by Gopi Kanodia and on 25.10.1971 he executed a Will with respect to the suit premises in favour of his daughter-in-law Pushpa Kanodia. The claim of the defendant is that the Will was probated in the year 1997 and before that the said Pushpa Kanodia had no title over the suit property, hence she had no right to transfer it to the plaintiff by a registered sale deed dated 01.09.1994 and, therefore, the sale-deed was illegal and void and on its basis the plaintiff did not acquire any title in the property. 17. The said contention of the defendant-petitioner is not legally correct, as admittedly Gopi Kanodia was the original owner of the suit premises and the plaintiff based his claim on the basis of Will dated 25.09.1971 executed by Gopi Kanodia in favour of his daughter-in-law Pushpa Kanodia as well as on the basis of registered sale-deed dated 01.09.1994 (Ext. 3) executed by Pushpa Kanodia in favour of the plaintiff with respect to the suit premises etc. and also on the judgment dated 05.07.1997 (Ext. 21) passed in Probate Case No. 11 of 1993 in favour of Pushpa Kanodia by which the Will of Gopi Kanodia was probated. 7 18. The aforesaid exhibits and claims were fully supported by P.Ws. 2,3,4,6 and 8 but the defendant could not falsify it either by any oral evidence or by any documentary evidence, which would be apparent from the following facts . Ext.A is the letter dated 23.05.1996 sent by G. K. International to the Managing Director, ESPI Industries, Ext. B is merely a map of Kanodia Bazar, Ext. C is the letter written by the plaintiff to the Chief Engineer, Ext. D is certified copy of deposition of one Kanhaiya Lal in G.R. No. 1395/95, Ext. E is copy of deposition of one Rajendra Singh in Misc. Case No. 09/1994 and Ext. F is copy of deposition of Rajendra Singh in Misc. Case No. 10/1994. Similar is the situation with respect to the oral evidence of the defendant, as he has produced four witnesses, out of whom D.W.1 is Munna Singh who had only stated that the plaintiff was doing business of pickles, medicines, phenyle, readymade garments but did not say anything about the requirement of the plaintiff. D.W.2 is Syed Mohammad Rizvi Alam, who has stated that the plaintiff was doing business and was not idle. D.W.3 is Gauri Shankar Prasad, who has made similar statement, whereas, D.W.4 is the defendant himself. On the other hand, nine witnesses have deposed on behalf of the plaintiff, out of whom P.W.9 is the plaintiff himself, whereas, P.W.1, P.W.5 and P.W.7 are formal witnesses and the remaining five witnesses, namely, P.W.2, P.W.3, P.W.4, P.W.6 and P.W.8, apart from the plaintiff (P.W.9) himself, fully supported the claim and pleadings of the plaintiff. 19. So far legal position is concerned, section 211 of the Indian Succession Act specifically provided that the right in the property in question devolves upon the legatee from the date of death of the executor and not from the date on which probate was granted by the Court. However, according to the provisions of the said Act, only for the purpose of establishing the genuineness of a Will in a Court of law, it has to be probated. Hence, in the instant case, the legatee, namely, Pushpa 8 Kanoda acquired right in the said property after the death of testator Gopi Kanodia and hence she had full right to execute the sale-deed on 01.09.1994 in favour of the plaintiff. 20. Furthermore the said Will having not been challenged in any court of law and the probate case having been filed much earlier in the year 1993 remained pending till 1997, which was allowed on 05.07.1997 during the pendency of the eviction suit, which was filed by the plaintiff in the year 1995, in view of the aforesaid provision of law as well as the finding and judgment of the probate case, it is quite apparent that the said Pushpa Kanodia had full right to execute the sale- deed in favour of the plaintiff, which was legal and proper and conferred full right and title upon the plaintiff and the learned court below was quite justified in allowing the claim of the plaintiff as in a suit for eviction, question of title has to be seen incidentally and for that purpose the aforesaid materials were sufficient. 21. Another question with regard to right and title of the plaintiff raised by the defendant-petitioner was that one Nagar Mal Agrawal had filed Title Suit No. 159 of 1999 for specific performance of agreement for sale dated 14.07.1994 and the said suit was decreed. However, it is apparent from the record and is also not in dispute that in the said suit the plaintiff of the eviction suit was not a party and on the basis of the decree dated 30.10.2006 passed in the said title suit, no sale-deed has been executed either by the defendants of that suit or by the Court and the said judgment and decree of the title suit is under challenge in this Court in First Appeal No. 16 of 2007 and hence the said judgment and decree of the trial court cannot legally be held to be final and binding upon the plaintiff of the eviction suit. Furthermore, the defendant himself is not claiming any tenancy or any other right from Nagar Mal Agrawal and as such the defendant can also not take any advantage of the aforesaid case. 9 22. In the said circumstances, the questions, which now have to be considered, are the relationship of landlord and tenant between the parties as well as the bona fide of the plaintiff’s claim of personal necessity. It is quite apparent that the defendant is not claiming to have any title over the suit property nor he is claiming tenancy under the aforesaid Nagar Mal Agrawal or any outsider, rather his specific claim was that earlier he was the tenant of Gopi Kanodia and thereafter he was paying rent only to rent Collectors, but he has miserably failed to establish what happened after the death of Gopi Kanodia about the year 1993. On the other hand, the specific claim of the plaintiff was that after the death of Gopi Kanodia, the defendant paid rent to Pushpa Kanodia and after the plaintiff’s purchase of the suit premises from Pushpa Kanoda by registered deed dated 01.09.1994 (Ext. 3), the defendant has been paying rent to the plaintiff. The said pleading of the plaintiff is proved by his oral as well as documentary evidence, namely, P.W.2, P.W.3, P.W.4, P.W.6, P.W.8 and P.W9 as well as from the registered sale-deed of 1994 (Ext.3), documents of the Corporation (Exts. 1,4, 5 and 6), documents of the Telephone Department (Exts. 14 and 15), receipt of Water Board (Exts. 16 and 17), documents of the Electricity Department (Exts. 18 series and 19 series), letter of attornment sent by the vendor Pushpa Kanodia to the plaintiff and the defendant of 1994 directing that the plaintiff had become the owner landlord and the defendant must pay rent to him (Exts. 7and 8), rent receipts issued by the plaintiff in favour of defendant (Exts. 9 series), order in the probate case (Ext.21) as well as documents of the Reserve Bank of India, Industries Department, licence of export and import (Exts. 10, 11,12 & 13), which fully proved that the plaintiff was dealing with the property as its owner, which the defendant had accepted and after the said attornment (Exts.7&8) was paying rent to the plaintiff. The said pleading supported by abovementioned evidence has not at all been disproved by any valid 10 evidence either oral or documentary, namely D.Ws. 1,2,3 & 4 as well as Exts. A, B, C, D, E & F, as has already been discussed above. In the said circumstances, the learned court below was quite justified in holding that there was relationship of landlord and tenant between the parties. 23. Question of personal necessity of the plaintiff was also one of the main issues to be decided in the suit and the learned court below has very elaborately considered the said issue in its impugned judgment. The said claim and pleading of the plaintiff were fully supported by P.W.2, P.W.3, P.W.4, P.W.6, P.W.8 and 9 out of whom P.W. 9 was the plaintiff himself. In support of the said contention, the plaintiff has produced relevant documents from the Reserve Bank of India, Department of Industries, licence of export and import (Exts. 10,11, 12 & 13), which sufficiently proved that the plaintiff was not only intending to start a business of export and import of certain articles, but the said effort of the plaintiff has reached its final stage and he was now fully equipped to immediately start his said business from the suit property, which he urgently required. 24. However, the defendant could not disprove the said claim of the plaintiff as all his exhibits, namely, Exts. A to F had no bearing to the said claim. So far the oral evidence of the defendant in this regard is concerned, out of four witnesses produced by him, D.W.1 was a formal witness, whereas, D.W.4 was the defendant himself and the remaining two witnesses, namely, D.Ws. 2 and 3 could not substantiate the claim of the defendant by any valid or reliable statement, which could be supported by any other material. In the said circumstances, the learned court below was quite justified in holding that the plaintiff had been able to prove his bona fide personal requirement of the suit premises. 25. The question of partial eviction was also considered in the impugned judgment by the learned court below. It may be noted that neither in his pleadings 11 nor in his evidence the defendant has ever stated that the requirement of the plaintiff can be satisfied by partial eviction. Although the onus was squarely upon the defendant to make such statement and to prove it by valid evidence but neither any statement has been made in his pleadings nor any material has been produced in that regard. On the other hand, from the pleadings of the plaintiff as well as the depositions of P.W. 2, P.W.3, P.W.4, P.W.6, P.W.8 and P.W. 9 and also from the documents of the Reserve Bank of India, Industries Department and Export and Import Department ( Exts. 10, 11, 12 & 13), it is quite apparent that the plaintiff requires the entire premises as he validly intended to do his business of import and export of pickles, ghee, coffee and readymade garments in the suit premises and for that purpose the plaintiff genuinely requires the entire ground floor of the suit premises and his requirement cannot be legally fulfilled by any partial eviction. 26. In the aforesaid and circumstances, this Court does not find any illegality or jurisdictional error in the impugned judgment and order of the learned court below, rather the impugned judgment and order of the learned court below is based on full consideration of pleadings, evidence and provisions of law. Accordingly, there being no merit in the claim of the defendant-petitioner, this civil revision is dismissed. ( S. N. Hussain, J. ) Patna High Court The 24th July, 2009 N.A.F.R. MPS/