IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.311 of 2009 ----------- Yugal Prasad, son of late Ababu Lal Prasad, resident of Rajgir, P.S. Rajgir, District Nalanda. ..Defendant-Appellant-Appellant versus Smt. Anusuiiya Devi @ Marani Devi, widow of late Dharmdeo Upadhaya, resident of Mauza Rajgir, P.S. Rajgir, Districtr Nalanda. …Plaintiff-Respondent-Respondent --------- For the appellant : M/s Binod Kumar and Hansraj, Advocates For the respondent : M/s Anjani Kujmar and Sudhir Kumar Upadhyay, Advocates. -------- 07/ 20.05.2010 Heard learned counsel for the sole appellant and learned counsel for the sole respondent. 2. This second appeal has been filed by defendant- appellant-appellant challenging the judgments and decree of both the courts below. 3. The matter arises out of Eviction Suit No.09 of 2002, which was filed by the plaintiff-respondent for eviction of the sole defendant-appellant from the suit premises to enable his eldest son to open his grocery shop in the suit premises. The said suit was decreed on contest by Munsif, Biharsharif vide his judgment and decree dated 24.04.2008. 4. Against the said judgment and decree of the trial court, the sole defendant-appellant filed Eviction Appeal No. 03 of 2008, but the said title appeal was dismissed by Additional District Judge-cum-Fast Track Court-II, Nalanda, vide his judgment and decree dated 22.04.2009. Against the aforesaid judgments and 2 decree of the courts below, the instant second appeal has been filed. 5. Learned counsel for the appellant vehemently challenges the aforesaid judgments and decree of the courts below on the ground that earlier a similar eviction suit bearing Eviction Suit No. 33 of 1992 on the same ground with respect to the same premises against the same defendant was filed by the plaintiff, but subsequently it was disposed of on 09.01.1996 on the basis of compromise between the parties according to Kiraynama dated 07.01.1996 executed by the plaintiff in favour of the defendant for the period 01.01.1996 to 31.12.2001 enhancing rent from Rs.100.00 to Rs.300.00. Hence it is claimed by the appellant that clearly there was no bona fide requirement of the plaintiff for six years during the pendency of the said tenancy but only after the expiry of the said term immediately the instant eviction suit has been filed raising the same plea, which was earlier held to be not tenable in law. 6. Learned counsel for the appellant further claimed that the defendant is paying rent even after 31.12.2001 as per the Kiraynama and is continuing in possession of the suit premises in the same capacity and hence the claim of the plaintiff that the defendant was a trespasser is not sustainable in the eye of law. The third point raised on behalf of the appellant is that the compensation of Rs.600.00 per month has been claimed by the plaintiff although rent as per the Kiraynama was only Rs.300.00 per month, which clearly shows that this clearly shows that the plaintiff merely wanted enhancement of the rent and for that purpose he has raised 3 the plea of personal necessity. The fourth point raised by learned counsel for the appellant is that the eldest son of the plaintiff is already doing Hotel business in Kesho Ashram, situated in Bengali Tola, but it has not been satisfactorily proved that it is not running well and only on the basis of non-production of licence, the objection of the defendant was rejected and it was presumed that the business was not running well. 7. So far the first point raised by the appellant is concerned, it is quite apparent that Eviction Suit No. 33 of 1992 was filed ten years before the filing of the subsequent Eviction Suit No. 09 of 2002 and in the meantime much development has taken place. So far question of earlier Eviction Suit no. 33 of 1992 is concerned, the same was not dismissed on merit, rather it was disposed of on the basis of compromise between the parties. Thus, it appears that to avoid long litigation the plaintiff chose to bear the defendant as tenant for six more years, whereafter the defendant was to vacate, but when even thereafter defendant did not vacate, the instant eviction suit has been filed. So far enhancement of rent from Rs.100.00 to Rs.300.00 by the said Kiraynama is concerned, it is quite apparent that Rs.100.00 was the rent prior to 1992 when the earlier eviction suit was filed and hence after six years naturally the rent had enhanced due to the market value and this Court does not find any illegality in the enhancement of rent, which was agreed rent as per the requirement of the situation. In the said circumstances, it cannot be a legal presumption that since in the year 1992 or in the 4 year 1996, the plaintiff’s bona fide requirement was not there, even according to the claim of the defendant, she cannot in the year 1992 raise her plea of personal necessity on fresh grounds, claiming compensation at current rate. 8. So far the fourth point raised on behalf of the appellant is concerned, the simple claim of the plaintiff was that her elder son had grown up and wanted to open his grocery shop in the suit premises, but it was the defendant, who claimed that the son of the plaintiff was doing Hotel business in Kesho Ashram, situated in Mohalla Bengali Tola, but the said claim was falsified by his own witnesses and he could not prove by any evidence to prove the said claim. In the said circumstances, the said claim of the defendant was clearly baseless, whereas, on the other hand, the plaintiff has been able to prove her personal requirement on fresh ground, which was not there in the earlier suit. 9. So far the second point raised by the appellant is concerned, it would hardly affect the claim of the plaintiff even if the defendant’s claim that he was a monthly tenant is accepted and in case of personal necessity, the defendant, who is admittedly the tenant of the plaintiff, has to be evicted. 10. So far the third question raised by the appellant is concerned, no doubt the rent by the earlier Kiraynama dated 07.01.1996 was Rs.300.00 and the compensation claimed in the suit was Rs.600.00 per month, but it transpires from the judgments of the courts that they did not allow the claim of the plaintiff with regard to 5 compensation, hence this plea of the appellant is also frivolous. 11. From the materials on record, this Court finds that the courts below had considered each and every point involved in the instant second appeal properly in accordance with the pleadings and evidence of the parties and it also comes to the conclusion that the plaintiff has bona fide requirement for the entire suit property and partial eviction of the defendant from the suit premises will not satisfy the said requirement of the plaintiff. Hence, in the aforesaid facts and circumstances, the findings of the courts below are concurrent findings of fact based on the pleadings of the parties and evidence adduced on their behalf and this Court in a second appeal cannot legally interfere with such findings. 12. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the courts below 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. MPS/ ( S. N. Hussain, J. )