IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.406 of 2008 1. SAHNAJ BANO, WIFE OF MD. SAMIM RESIDENT OF VILLAGE- JOLAHACHAK, MAKHDUMCHAK, P.S.-SIGORI, DISTRICT-PATNA. 2. AFSARI KHATOON @ BHUSHANI @ AFSARI BANO WIFE OF MD. NASIM @ BADSHAH RESIDENT OF VILLAGE-NAUBATPUR, LAKH AMARPUR, P.S.-NAUBATPUR, DISTRICT-PATNA. 3. BHUSHAN @ HASSAN IMAM, SON OF LATE RAFIQ RESIDING AT VILLAGE RAHMATGANJ, P.S.-MASAURHI, DISTRICT-PATNA. ……………… DEFENDANTS ……… PETITIONERS Versus MUSSARAT JEHAN, WIFE OF MD. SAGIR AHMAD RESIDENT OF VILLAGE RAHMATGANJ, P.O. & P.S. – MASAURHI, DISTRICT-PATNA. ………….. PLAINTIFF ………… OPPOSITE PARTY For the Petitioner : Mr. Arun Kumar, Advocate Mr. Anil Kumar Singh, Advocate For the Opposite Party : Mr. Mahendra Prasad, Advocate P R E S E N T HON’BLE JUSTICE MIHIR KUMAR JHA 6 Mihir Kr. Jha, J Heard counsel for the parties. This Civil Revision Application is directed against the judgment and decree dated 15th April, 2006 in Eviction Suit No. 1/1994 passed by the Munsif, Civil Court, Masaurhi (Patna), directing the defendant-tenant-petitioners to vacate the suit premises within fifteen days and give its delivery of possession to the plaintiff-opposite party. The plaintiff-opposite party had filed Eviction Suit No. 1 of 2004 claiming, interalia, that she was owner/landlord of the house bearing holding no. 147, Ward No. 2 on a piece of land, Plot No. 1026 under Khata No. 179 measuring an area of 1 katha situated at Mauza-Rahmatganj, Masaurhi within the district of Patna. In the plaint she had claimed that the suit premises consisted of three rooms and was let out to the defendant- petitioners for fixed period of eleven months on 2.7.2007 on a monthly rental of Rs. 250/-. It is the case of the plaintiff-opposite 2 party that the defendant-petitioners had occupied the suit premises and had started living therein and also paying rent on month to month basis till October, 2002, but thereafter payment of rent was stopped from November, 2002 and a sum of Rs. 4,000/- had fallen due against the defendant-petitioners up to February, 2004. The plaintiff-opposite party, however, without claiming payment of arrears of rent had filed the eviction suit only on the ground of personal necessity as according to her size of family had increased and she was finding it difficult to adjust her family members in absence of proper accommodation. Such personal necessity had been sought to be explained in paragraph 5 of the plaint by also taking a plea that brothers of husband of the plaintiff had divided their properties in three parts on account of which plaintiff- opposite party was left with no sizable and sufficient space to accommodate her family members. It was her case that since she had no other vacant premises for her residential purposes accommodating family members, there was a necessity for eviction of the defendant-petitioners as even partial eviction was not going to solve her such requirement. In the plaint the plaintiff- opposite party had claimed that as the repeated request for vacating the suit premises by the defendant-petitioners did not yield any fruitful result, she by keeping her right reserved to realize arrears of rent, had filed eviction suit only on the ground of personal necessity under section 11(1)(C) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 for eviction of the 3 defendant-petitioners. The defendant-petitioners having sought leave to contest the suit had also filed their written statement, wherein they had claimed that the suit in question was brought by the plaintiff- opposite party in collusion with their enemies who had formed a gang and had made a plan to evict and dispossess the defendant- petitioners from her own premises. The defendant petitioners while giving details of her enemies had further explained this aspect in the written statement by citing event of 14.10.2003 when it is said that Md. Mannan with his unruly supporters had made an attempt to evict the defendant-petitioners and her family by use of force, leading to institution of a criminal case under sections 341, 452, 427, 323 and 347 of the Indian Penal Code against Md. Mannan and others who were said to be close relative of the plaintiff-opposite party. Reference in this connection has also been given in the written statement with regard to a proceeding under section 107 of the Code of Criminal Procedure against Md. Mannan and others. The defendant-petitioners, therefore, claiming herself to be owner of the suit premises had straight way denied the story of the plaintiff-opposite party to have taken the suit premises on rent and in this context while setting up their right, title and possession of the suit property, it was claimed by them that the suit property was settled initially to one Budha Mian by the Ex-landlord in the year 1920 through HUKUMNAMA dated 27th June, 1920 and from that time the ancestors of the defendant- 4 petitioners being owners were living in the same house/premises. Having thus set up a parallel case for being owner of the suit property the defendant-petitioners had also clearly denied to have ever entered into any rent agreement and as such the plea of personal necessity even when not categorically denied by answering paragraph no.5 of the plaint was sought to be denied as a whole. The trial court, i.e, the Court of Munsif in view of pleadings of the parties had framed six issues as recorded in the impugned order in which issue no. 3 and issue no. 5 were the most relevant and the core issues wherein relationship of landlord and tenant as also the plea of personal necessity was sought to be gone into in the light of the evidence adduced by the parties. The plaintiff-opposite party had examined as many as seven witnesses and had also adduced documentary evidence which were marked as Exhibits 1 to 7/A. On the other hand, the defendant-petitioners had examined six witnesses and had produced a SADA HUKUMNAMA and a receipt showing payment of tax to the Notified Area Committee as her documentary evidence. The trial court after detailed discussions in paragraph no.7 of the impugned judgment, having earlier made thread-bare discussion of oral and documentary evidence of both the parties had held that there were sufficient material to show that the plaintiff-opposite party was owner of the suit premises and in this 5 regard it had placed reliance on the sale deed produced by the plaintiff-opposite party dated 22nd October, 1937 (Ext.3), sale deed dated 2.6.1965 (Ext. 4) and sale deed dated 30.5.2002 (Ext.2) to hold that the plaintiff-opposite party was owner of the suit premises, a fact which in the opinion of the court below got support from the order dated 15.12.2004 of the Notified Area Committee in Mutation Case No. 47 of 2004-05 (Ext.5) and the order of mutation of land covering the tenanted premises in favour of plaintiff-opposite party dated 10.6.2003 passed by the Anchaladhikari, Masaurhi in Mutation case No. 1480 of 2002/03 (Ext.6), all of whom stood further corroborated from the rent receipts i.e. Ext.7, Ext.7/A and Exts. 1 series. The findings recorded by the court below as with regard to the plaintiff-opposite party being owner of the suit premises being based on appreciation of documentary evidence duly supported and explained even in her oral evidence would definitely inspire confidence because the court below had also looked into the parallel claim of title of the defendant-petitioners and had found that either SADA HUKUMNAMA (Ext.A) of the year 1920 or the rent receipt of the Notified Area Committee (Ext.B) did not inspire any confidence, inasmuch as, they actually did not belong to the defendant-petitioners. In this respect the trial court had gone to hold that the documentary evidence led by the defendant-petitioners was fraudulently created and in fact no such rent receipt in the name of mother of the defendant-petitioners was 6 ever issued by the Notified Area Committee, Masaurhi and the rent receipts produced by the defendant-petitioners actually was one which was issued in the name of the purchaser from the plaintiff-opposite party, who incidentally had same name Sherun Nisa, which is said to be also name of mother of defendant- petitioners. The aforementioned categorical finding with regard to the plaintiff-opposite party being owner and thus landlord of the suit property having been found established by the court below in the detailed discussions in the impugned judgment could not be questioned by counsel for the defendant-petitioners whose only criticism against the said finding was that the suit in question was filed by the plaintiff-opposite party with mala-fide design and actually by way of declaratory suit in the garb of eviction suit. As discussed above the trial court had gone into the question of title only incidently and that too when the case of parallel title was set up by the defendant-petitioners for a limited purpose of recording finding on the issue of relationship of landlord-tenant between the plaintiff-opposite party and defendant-petitioners. In the opinion of this Court, examination of such an issue for recording a findings of relationship of landlord and tenant was absolutely necessary and the defendant-petitioners cannot make a grievance on this score. Had the defendant-petitioners, in fact, any genuine claim of title over the suit property as infact was stated in their written statement, nothing had presented them from 7 filing their own title suit, but that having been not done, the approach of the court below in looking into the issue of title for determination of relationship of landlord and tenant cannot be faulted either on fact or in law. Reference in this connection may only be made to a judgment of this court in the case of Sarkar Sharan and others Vs. Ram Prabad Gupta and others reported in 1999(3) PLJR 923 wherein it was held that the question of title of the plaintiff over the suit property can be gone into incidentally for determining the relationship of landlord and tenant. Infact considering the very aspect, it was held in the case of Sarkar Sharan (supra) “……….If such questions of title are not decided in eviction proceeding under Section 14 of the B.B.C. Act then perhaps no eviction suit would be allowed to proceed under summary procedure when the tenant would come up with a false plea of the setting up on a third party. In the present case it is not a complicated question of title rather such title can be decided for ancillary purposes for a summary proceeding of eviction. In such circumstances, it (sic) do not find that the learned court below has committed any error of law or jurisdictional error in deciding the title of the plaintiff over the suit property for ancilliary purposes of an eviction proceeding……….” This Court, in fact, having noted that the court below had made a thread-bare discussions not only of the title of the plaintiff opposite party over suit property, but also having held that both documentary evidence adduced by the defendant- 8 petitioners, namely, HUKUMNAMA and the rent receipt were forged and fabricated and did not prove her alleged title to the suit property, would also find no error in the consequential finding of the defendant-petitioners being tenant of the suit premises, inasmuch as, this finding was also recorded on appreciation of evidence led by the plaintiff-opposite party that the defendant- petitioners were tenant on payment of Rs.250/- per month, a fact which could not be demolished otherwise by any of the evidence led by the defendant-petitioners. Counsel for the defendant-petitioners, however, was quite emphatic in his submission that the plea of personal necessity was not gone into by the court below in a detailed manner and the cryptic finding recorded in one paragraph was wholly insufficient for deciding the eviction suit filed by the plaintiff-opposite party only on the ground of personal necessity. Counsel for the plaintiff-opposite party on the other hand in this context had referred to categorical finding recorded by the court below which in his opinion were based on appreciation of oral evidence and in this context he had placed reliance not only on the evidence of P.W.1 and P.W.2 who had given details of increased size of family members of the plaintiff-opposite party and in sufficient space being available for such a large family. In that context counsel for the plaintiff-opposite party had also referred to evidence of the defendant- petitioners, D.W.3 who in paragraph 14 himself had himself admitted that family of the 9 plaintiff-opposite party had 15 to 16 members. This Court had also looked into evidence of P.W.1 to P.W.4 and on their perusal it has found that all of them had not only consistently stated about personal necessity of the plaintiff- opposite party but even the plaintiff-opposite party as P.W.6 herself despite being questioned on her specific case of personal necessity in paragraph 8 of examination-in-chief, could not be discredited in any manner in her cross-examination. Paragraph-30 of her deposition, in fact, would clinch the issue wherein she had said that her family consisted of nearly 20 persons out of which there were 10 female members including two unmarried daughters as also four adult sons were who were living together in joint family and as such the requirement for the suit premises was a personal bonafide necessity. In fact, when in paragraph 31 the plaintiff-opposite party on being cross-examined with regard to availability of any space/house other than the suit premises, had clearly asserted that she had no other house where she could live with her family members including old father-in-law and mother- in-law, this Court would find that the weight of evidence of the plaintiff-opposite party even in respect of personal bonafide necessity was far more heavier than the ipse-dixit of the defendant-petitioners. This Court, therefore, on perusal of evidence itself must hold that the plea of personal necessity as set up by the plaintiff-opposite party was fully established by her evidence and that the defendant-petitioners could not even bring 10 any cogent evidence to controvert such full proof case of the plaintiff-opposite party. This Court at this place must take a note of the fact that the defendant-petitioners even otherwise could not have been permitted to expand their case in relation to either personal necessity or partial eviction because the specific plea of the plaintiff-opposite party in paragraph 5 of the plaint, as noted above, was not even denied specifically by them save and except a bald denial of the entire statements in the plaint on the ground that they were owners of the suit property. Thus, even on the basis of the pleadings when the plaintiff-opposite party had proved her case of personal necessity the defendant-petitioners in absence of any specific plea on the issue of personal necessity and/or partial eviction raised in their written statement could not have been permitted even by the trial court or by this Court to go beyond their own pleadings especially when one of their own witness, D.W.4, had himself admitted the large size of family of the plaintiff-opposite party establishing the need for a bigger accommodation. The only other criticism of learned counsel for the defendant-petitioners as against the finding in impugned judgment is on the issue of partial eviction. He would submit that the court below had not discussed the issue of partial eviction in a satisfactory manner. The submission of the learned counsel for defendant petitioner is that the size of family of the plaintiff- 11 opposite alone was not good enough an answer and infact required detailed consideration on the issue of partial eviction. Rebutting the aforementioned submission, the learned counsel for the plaintiff-opposite party had however submitted that when it was proved beyond doubt that the joint family of the plaintiff-opposite party was having more than 20 members including old father-in-law and mother-in-law, four employed sons, two marriageable daughters amongst ten female members the analysis of materials on record and the conclusion arrived at by the court below on the issue of personal necessity was itself sufficient to hold that the partial eviction could not have served the requirement of plaintiff-opposite party. In this context he would refer to a judgment of this Court in the case of „Gajendra Prasad Sinha & Anr Vs. Man Mohan Prasad Sinha‟ reported in 1999 BBCJ 450. True it is that the court below had not made an elaborate discussion on the issue of partial eviction separately, but then discussion in the impugned judgment with regard to personal necessity of the plaintiff-opposite party to the extent of having family of more than 20 members with no house of their own to accommodate old father-in-law and mother-in-law requiring at least one room, the unmarried adult daughters and other eight female family members including the plaintiff-opposite party requiring yet another room for them so as to leave the four adult male employed family members to be accommodated in the third 12 and last room was by itself sufficient to hold that requirement of the plaintiff-opposite party would not have been fulfilled by the partial eviction of the suit property. There is infact no magic word in the concept of partial eviction and the decision on such issue will always depend on the individual facts of each case. For a family of two persons a residential premises of two rooms may be sufficient and in such case if suit premises is more than two rooms and challenge is made with regard to personal necessity by the defendant-tenant, the Court will be required to go into such question of partial eviction in a more elaborate manner to look into the aspect as to whether by partial eviction of the defendant-tenant, necessity of the plaintiff could be fulfilled. This situation, however, would not be in a case where a family of 20 members with 10 females of three generations are required to live under the same roof. The landlord cannot be subjected to such rigorous interpretation of law under section 11(1)(C) of the Act that for reoccupying his own house he will have to give account of every inch of space that he would need for living therein for proving his personal necessity. The Courts will always have to keep in mind that the findings in respect of personal necessity can itself contain the findings of partial eviction and therefore merely because finding of such partial has not been elaborately dealt separately by the trial court in the impugned judgment that by itself can not be a ground to set aside the same. In this context reliance placed by counsel for the 13 plaintiff-opposite party on the following passage of judgment of this Court in the case of Gajendra Prasad Sinha (Supra) is quite apt and fully applicable to the facts of this case wherein it was held that : - “About partial eviction it appears that the learned court below has not much discussed on this point but considering the position and situation of the suit house discarded possibility of partial eviction. Admittedly, the suit house consists of two rooms, one latrine, one gali and an angan and it is also an admitted fact that the plaintiff has got two marriageable daughters besides himself and his ailing wife. In such circumstances two rooms and one latrine cannot be divided for the purpose of partial eviction…….” In the present case, in fact, position is still better because as noted above family of the plaintiff-opposite party has at least 20 members and that too of three generations, namely, father- in-law and mother-in-law, the plaintiff on her own and her four adult sons and two marriageable adult daughters. For such a large family at least three rooms in any event would be required as all of them must have some sort of privacy in his or her own house. The dogmatic concept of partial eviction thus cannot be made universally applicable as a bare requirement of law bereft of individual facts and circumstances of each case. Judged in this background, this Court is satisfied that the partial eviction of the defendant-petitioners could not have served the bonafide personal necessity of the plaintiff-opposite party and therefore the impugned judgment and decree cannot be faulted even on that score. 14 Thus, on over all analysis of the materials on record this Court would find no merit in this Civil Revision Application and the same must be and is hereby dismissed. There would be, however, no order as to costs. Patna High Court Dated the 9th September, 2009 Abhay Kumar/ (Mihir Kumar Jha, J.)