Jiwan Shah vs Keshav Pd. Agrawal

Vijayendra Nath, J.—Heard Mr. Ashok Kumar Sinha, the learned counsel appearing on behalf of the petitioners and Mr. J.P. Bhagat, the learned counsel appearing on behalf of the opposite party No. 1.

Taking exceptions to the judgment and order dated 19.04.2011 passed by Munsif-I, Darbhanga in Eviction Suit No. 27 of 1990 the substituted heirs of the original defendant have filed this revision application under the proviso to Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as ''B.B.C. Act'').

To appreciate the rivalized submissions on behalf of the parties, it is necessitous to take into notice the facts in brief. The Eviction Suit No. 27 of 1990 was filed by the plaintiff-Urmila Devi (since deceased, through L.R.) for a decree for eviction of the defendant from the suit premises comprising Municipal Holding No. 123, Municipal Survey Plot No. 3164 described in detail in the plaint on the ground of personal necessity. The plaintiff claimed that the suit premises was bequeathed to her by her father-in-law by executing a registered will dated 15.12.1965 in her favour and since then she had been coming in peaceful possession of the same. The original defendant Chiranjivi Sah (since deceased and substituted by his heirs) was inducted as tenant in the suit premises by the plaintiff in the year 1966 on monthly rent of Rs. 4/- and a Kirayanama dated 31.08.1966 was also executed by the original defendant. It was further case of the plaintiff that the original defendant stopped paying the rent since 1977 and had also become liable to be evicted as defaulter from the suit premises under the provision of Section 11(d) of the B.B.C. Act. The plaintiff further claimed that her family consisted of her husband and three major sons out of whom her elder son namely Keshav Pd. Agrawal (substituted as plaintiff after the death of original plaintiff) having three children and a wife was living with her but he had no suitable source of income resulting in difficulty to maintain the family and on this basis the plaintiff had stated that the requirement of the suit premises arose for providing her son Keshav Pd. Agrawal place for starting a shop of Latgena. It was further case of the plaintiff that her son Keshav Pd. Agrawal had attained the age of 39 years and became ineligible for any government service. The suit premises was situated in the main market where the defendant was running a shop for repairing utensils and petromax and the plaintiff stated that she required the suit premises bonafidely and in good faith for the livelihood of her son as she had no other suitable place for business other than the suit premises which was suitable to start the shop of Latgena. After reserving the right to file another suit later on for recovery of the arrears of rent, the plaintiff filed the instant suit seeking the decree of eviction of the defendant on the ground of personal necessity alone.

The defendant, after obtaining the leave to contest the suit, filed his written statement specifically asserting his own right, title and possession over the suit premises. The defendant denied his possession over the suit premises as tenant of the plaintiff and asserted that he had been paying the municipal tax for the suit premises and getting the rent receipts from the municipal corporation as owner thereof. It was the specific case of the defendant that he had acquired the ownership of the suit premises over holding No. 123 by adverse possession. The defendant also contested the case of the plaintiff that he had executed the Kirayanama on 31.08.1966 for taking suit premises on rent from the plaintiff on monthly rental of Rs. 4/-. The defendant further also denied to be defaulter as alleged by the plaintiff asserting that as he was the owner of the suit premises and there was no reason for payment of rent to the plaintiff. It was also the case of the defendant that the Kirayanama and the counterfoil of the rent receipts claimed to be bearing his signature were all false and fabricated documents. The defendant also denied the case of the personal necessity as pleaded by the plaintiff and had asserted that Keshav Pd. Agrawal, son of the plaintiff was already in employment.

The original defendant Chiranjivi Sah died during the pendency of the suit and his substituted heirs filed additional written statement reiterating the claim of their title over the suit premises by adverse possession and further asserting that the alleged Kirayanama and counterfoil of rent receipts dated 31.08.1966 were all manufactured, forged and fabricated documents. It was also asserted that the suit involved complicated question of title as both the parties claimed their title over the same by adverse possession and thus was not maintainable.

After scrutinizing the evidence led on behalf of the parties, the learned court below has come to the finding that there is relationship of landlord and tenant in between the plaintiff and the defendants. It has also further been held that the plaintiff has the bonafide requirement of the suit premises for starting business for livelihood and after finding that the partial eviction of the defendant can not satisfy the necessity of the plaintiff, the learned court below has passed the judgment and order of eviction of the defendant from the suit premises.

Criticizing the impugned judgment and order, Mr. Sinha the learned counsel appearing on behalf of the petitioner, at the out set, has questioned the locus standi of the plaintiff to maintain the suit for eviction on the ground of personal necessity on the basis of absence of title of the plaintiff (since deceased) in the suit premises and her failure to establish her title over the suit premises. It has been canvassed that the unprobated bill and rent receipts in the name of late father-in-law of the plaintiff Urmila Devi were not sufficient to confer absolute right, title and interest upon the plaintiff but the learned court below has ignored this aspect of the matter. Placing the annexures to the civil revision application, the learned counsel has further propounded that the order dated 30.03.1992 passed by the learned court below granting leave to the defendant to contest the suit, itself reflects the view of the court raising doubt over the absolute title of the plaintiff over the suit premises. The learned counsel has further extensively relied upon the judgment of the Apex Court in the case of M.M. Quasim Vs. Manohar Lal Sharma and others, and also relied upon the judgment of this Court in the case of Smt. Asha Devi v. Shyam Sunder Tibrewal 2013 (2) BLJ 122 for bolstering his proposition that the plaintiff having failed to establish her title over the suit premises, could not have maintained the present suit for eviction on the ground of personal necessity. It has been further argued that the learned court below has committed error of jurisdiction in proceeding to compare the disputed signatures of the original defendant Chiranjivi Sah on the alleged Kirayanama (Ext. 3), and upon his deposition recorded in Trial No. 99/86/CR-911/77 (Ext. 6) as well as on the counterfoils of the rent receipts (Exts. 9 and 9/A) and it has been submitted that in any view of the matter those documents including the alleged Kirayanama (Ext. 3) were not sufficiently decisive in law for determination of the issue in favour of the plaintiff. Commenting on the admissibility of Ext. 1 and 1/A (show cause filed by the original defendant) in proceedings under Section 144 and 107 Cr.P.C., it has been submitted that those documents cannot be taken into evidence in view of the provision of Section 145 of the Evidence Act as the petitioner-defendants were not confronted with those documents during their examination in the court. The learned counsel has further also argued that the son of the original plaintiff who has been substituted as plaintiff in the suit after the death of the original plaintiff, was not unemployed and in this regard the learned court below has failed to give due weightage to Ext. A and A/1 clinchingly showing his employed status. Elaborating his submissions, the learned counsel has placed the evidence of the witnesses examined on behalf of the plaintiffs to show that there was no sufficient evidence to establish the bonafide requirement of the suit premises as distinguished from mere desire. The learned counsel has also pressed I.A. No. 249 of 2012 filed on behalf of the petitioners for adducing additional evidence under Order 41 Rule 27 C.P.C. and has submitted that the documents mentioned in paragraph-3 (i) (ii) (iii) (photo copies attached with the interlocutory application) of the interlocutory application should be taken on record as additional evidence for the ends of justice.

Per contra, Mr. Bhagat, the learned counsel for the plaintiff-opposite party No. 1 has put emphasis on the limited scope of the jurisdiction of the court as distinguished from the appellate jurisdiction in a revision application filed under the proviso to Section 14(8) of the B.B.C. Act. It has been submitted that the registered sale deed (Ext. 11), the Jamabandi of the suit premises (Ext. 16) the rent receipts (Ext. 19/B and Ext. 22/A as well as Ext. 8 series) the survey khatiyan (Ext. 10) and the registered deed of will (Ext. 7) in the name of the plaintiff Urmila Devi are sufficient documentary evidence to establish the title of the plaintiff over the suit premises. It has further been submitted that the Kirayanama (Ext. 3) dated 31.08.1966 executed by the original defendant Chiranjivi Sah coupled with the counterfoils of the rent receipts (Ext. 9 and 9/A) showing payment of rent by him to the plaintiff are sufficient to show that the defendant was the tenant of the plaintiff in the suit premises and there was relationship of landlord and tenant in between them. The learned counsel has further also placed the depositions of the original defendant Chiranjivi Sah (Ext. 6) as well as the statements made by him in the two show cause (Ext. 1 and 1/A) to show that the crucial fact of his status as tenant in the suit premises had been admitted by him. It has also been canvassed that there is no scope now for the petitioners to escape from the admission made in the Kirayanama, deposition as well as the counterfoils of the rent receipts showing payment of the rent by the original defendant Chiranjivi Sah to the plaintiff after the order dated 28.08.2001 passed by the learned court below when the original defendant refused to give his signature before the court as directed by this Hon''ble Court for its comparison by handwriting expert with the disputed signatures on the aforesaid documents and sought to withdraw his prayer, as earlier made by him, for comparison of his signature on these documents by a handwriting expert. Resisting the prayer of the petitioners for adducing additional evidence, the learned counsel has submitted that there is no application of Order 41 Rule 27 C.P.C. at the stage of revision where no fresh determination of disputed question of fact can be made by appraisal of evidence.

The learned counsel for both the parties have placed reliance on several decisions which shall be noticed appropriately hereinafter in this judgment. For convenience, the parties, hereafter, shall be described by the position held by them in the suit.

This civil revision application has been filed under the proviso to Section 14(8) of the B.B.C. Act. The scope of jurisdiction of the court in revision under this provision has by now been well laid out and it would be profitable here to take into notice the pronouncement in this regard by the Apex Court in the case of Chandrika Prasad (D) Thr. Lrs. and Another Vs. Umesh Kumar Verma and Others, as follows:-

"... In a revision petition filed under proviso to the above sub-section (8) of Section 14 of the Act, the High Court has to satisfy itself as to whether the order of eviction passed under Section 14 of the Act was in accordance with law. The scope of the revisional jurisdiction depends on the language of the statute. Though, revisional jurisdiction is only a part of the appellate jurisdiction, it cannot be equated with that of a full-fledged appeal.

An identical provision contained in proviso to Section 25-B of the Delhi Rent Control, Act 1958 came up for consideration of this Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta. The Court held that the exercise of revisional jurisdiction by the High Court under this proviso is "for the purpose of satisfying if an order made by the Controller is according to law". The Court further held that the revisional jurisdiction exercisable under the said proviso is not so limited as is under Section 115 CPC nor so wide as that of an appellate court and the High Court cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. The Court further held that the High Court, however, is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law" and for that limited purpose may enter into reappraisal of evidence for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available..."

The same view has been reiterated and explained in a recent judgment by the Constitution Bench in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, . The facts and submissions on behalf of the parties are now to be examined within the scope of jurisdiction as settled by the apex court.

From the averments made in the plaint, it is apparent that the plaintiff has claimed herself to be "owner" of the suit premises on the basis of the registered will dated 15.12.1965 (Ext. 17) executed in her favour by her father-in-law. It is her case that the original defendant Chiranjivi Sah was inducted as tenant in the suit premises on the monthly rent of Rs. 4/- and the Kiraynama dated 31.08.1966 (Ext. 3) was executed by him accepting the terms of the tenancy as mentioned therein. It is also further case of the plaintiff that the original defendant Chiranjivi Sah continued to pay rent to the plaintiff till before December 1977 from when he stopped paying the rent. It is also further case of the plaintiff that the original defendant Chiranjivi Sah used to put his signature on the counterfoils of the rent receipts after payment of rent and getting the receipts.

The suit for eviction of the defendant has been filed by the plaintiff as ''owner landlord'' on the ground of personal necessity alone. The defendant tenant has denied the relationship of landlord and tenant with the plaintiff and has claimed his own title in the suit premises on the basis of adverse possession. The defendant-tenant has pleaded that the plaintiff was never the owner of the suit premises and she never inducted the defendant Chiranjivi Sah as her tenant in the suit premises.

The plaintiff in support of the existence of the relationship of landlord and tenant has pleaded and proved the Kiraynama dated 31.08.1966 (Ext. 3) executed by the original defendant Chiranjivi Sah. The plaintiff has also produced the counterfoils of the rent receipts (Ext. 9 and 9.A) bearing the signature of the original defendant Chiranjivi Sah in support of the case that the original defendant Chiranjivi Sah used to pay rent to her as tenant in the suit premises. Besides on behalf of the plaintiffs the deposition of the original defendant Chiranjivi Sah in Tr. No. 99/86/C.R. No. 911/77 (Ext. 6), the two show cause (Ext. 1 and Ext. 1/A) filed by the original defendant Chiranjivi Sah in the proceeding under Sections 144 and 107 Cr.P.C. have been brought in evidence in order to establish the status of the original defendant Chiranjivi Sah as tenant in the suit premises. The tenant defendant Chiranjivi Sah denied the signature appearing on these documents to be of the original defendant Chiranjivi Sah and alleged the same to be forged, fabricated and manufactured documents. A petition dated 30.05.1997 was also filed on behalf of the original defendant Chiranjivi Sah in the suit praying for comparing his alleged signature appearing on the Kiraynama (Ext. 3), the deposition (Ext. 6) and the counterfoils of rent receipt (Ext. 9 and 9/A) by a handwriting expert.

By order dated 18.02.1998, after hearing the parties, the learned court below allowed the prayer of the original defendant made in the petition dated 30.05.1997 and directed for comparison of the signature of the original defendant Chiranjivi Sah appearing on the Kiraynama, deposition and the counterfoil of the rent receipts with his signature on the written statement.

The plaintiff filed C.R. No. 1548/98 before this Court against the aforesaid order dated 18.02.1998 raising the grievance that the comparison of the signature of the original defendant Chiranjivi Sah should not be made which his signature appearing on the written statement as by playing tricks he had himself not signed the written statement. By order dated 17.03.1999, the civil revision application was disposed of with following directions.

"... When such apprehension is there in the mind of the petitioner, the better course would have been to get signature of the defendant in the court itself in presence of the presiding officer of the court and then sent those signatures for comparison with the disputed documents without relying on the so called admitted signature of the written statement of the defendant. The said signature of the opposite party may be taken in presence of the plaintiff also so that the identification may not be challenged at a later stage. The impugned order may be modified by the learned court below in view of the observation as mentioned above..."

After the aforesaid order by this Hon''ble Court, the learned court below modified its order and issued direction to the defendant to be physically present. The said direction was reiterated in the order dated 16.05.2001 directing the original defendant to take steps for giving his signature. In response, however, on 29.06.2001 a petition was filed by the original defendant praying to withdraw his prayer for examination of his disputed signature by a handwriting expert, expressing his inability to give his signature for this purpose before the court, due to serious illness. The learned court below by order dated 28.08.2001 after hearing the parties came to the finding that the defendant had deviated from his earlier stand and was not willing to get his signature on the documents in question to be examined by the handwriting expert, and therefore after drawing adverse inference against the defendant in the matter, held that the Kiraynama, the deposition and the counterfoils of the rent receipts, produced in evidence on behalf of the plaintiffs, carried the genuine signature of the original defendant. This order was not challenged by the defendant before the higher court and as the necessary consequence, the same has attained finality between the parties. Even in the present revision application also, this order has not been questioned by the revision petitioners and during the course of arguments also this order has not been assailed. The issue of genuineness of these three crucial documentary evidence has, thus, stood determined in favour of the plaintiff.

Once after the decks have been cleared with regard to the question of genuineness of the Kiraynama (Ext. 3), counterfoils of the rent receipts (Ext. 9 and 9/A) and the deposition of the original defendant (Ext. 6), supporting the case of the plaintiff regarding the existence of relationship of landlord and tenant in between the plaintiff and the original defendant, the objection and the pleas of the defendant regarding the absence of title of the plaintiff over the suit premises for maintaining the suit for eviction on ground of personal necessity and the claim of title of the defendant by adverse possession over the same are to be scrutinized as these are the pivotal issues raised in defence.

In this regard Mr. Sinha, the learned counsel for the defendant-petitioners, has strenuously argued that in order to maintain a suit for eviction on the ground of personal necessity, the plaintiff must be ''owner landlord'' in the sense that the plaintiff is the person who has the right against the whole world to occupy the building himself/herself. Strong reliance has been placed on the decision by the Apex Court in the case of M.M. Quasim (Supra) and also the decision of this Court in Smt. Asha Devi (Supra) which has been rendered on this point squarely on the basis of the decision of the Apex Court in M.M. Quasim (Supra). Mr. Sinha has further also canvassed that the defendants have produced the orders by the Municipal Authorities as well as the rent receipts in the name of the original defendant Chiranjivi Sah in support of the possession of the original defendant over the suit premises in his own rights whereas the plaintiff had based her claim only on the registered will dated 15.12.1965 which could not be probated. It has been therefore argued that the learned court below has failed to consider the documentary evidence and their impact on the rival claim of title of the parties over the suit premises and has wrongly proceeded to grant the decree of eviction as prayed by the plaintiff.

This Court however, does not find substance in the aforesaid submission on behalf of the petitioners as the same appears to have been made blurring the concept of absolute title under general law and the claim of title as "owner-landlord" in a suit for eviction on ground of personal necessity under the B.B.C. Act. The Explanations I and II of Section 11(i)(c) of the B.B.C. Act clearly demonstrate that the word ''landlord'' in Clause C has been used in contradistinction to ''agent'' only for the limited purpose. The Clause C of Section 11(1) has provided the personal necessity of the suit premises by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by him as a ground for eviction. There is little scope in the language of this provision for the inference that the landlord in a suit for eviction on ground of personal necessity, must have absolute title over the suit premises. Keeping in view the limited scope of inquiry by the Court into the question of title of the landlord in a suit for eviction, if the submission on behalf of the petitioners regarding the requirement of the landlord to prove his absolute title is accepted, it would definitely impede the aim and object of the B.B.C. Act and frustrate its very purpose. Such a course would tantamount to asking the "owner-landlord" to establish his title over the suit premises as if it was a suit for declaration of title and recovery of possession.

The quantum of proof of title of ''owner landlord'' in such a suit may not suffice and hold good as proof of ownership in a full-fledged title suit and may not be enough to successfully sustain his claim of ownership but nonetheless he cannot be non-suited, if there are material evidence to sustain the incidental finding by the Court on the issue of title. The legal conundrum sought to be raised on behalf of the petitioners in this regard has already been settled by the Apex Court in the case of Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, , where their lordships have also taken into notice the earlier decision in M.M. Quasim (Supra), and have ruled as follows:

"...the concept of ownership in a landlord-tenant litigation governed by rent control law has to be distinguished from the one in a title suit. Ownership is a relative term, the import whereof depends on the context in which it is used. In a rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in a landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. In M.M. Quasim V. Mahohar Lal Sharma it was held that an "owner -landlord" who can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own. In Dilbagrai Punjabi V. Sharad Chandra this Court held that it was essential to sustain a claim of eviction under Section 12(1)(f) of the Act to establish that the plaintiff was the owner of the premises. However, the Court upheld the ownership of the landlord having been proved on the basis of an admission of the ownership of the plaintiff made by the defendant in reply to the notice given before the institution of the suit and the recital of the name of the plaintiff as the owner over a period of time. Thus, the burden of proving ownership in a suit between landlord and tenant where the landlord-tenant relationship is either admitted or proved is not so heavy as in a title suit and lesser quantum of proof may suffice than what would be needed in a suit based on title against a person setting up a contending title while disputing the title of the plaintiff..."

(emphasis supplied)

Besides enunciating the aforesaid principle, their lordships have also considered the affect of denial of title of the landlord or disclaimer of tenancy by the tenant in view of the provision of Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act and have laid down as follows:

"...Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or any person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel so long as it binds the tenant excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord -tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule...."

(emphasis supplied)

The objection of the defendant-petitioners on the maintainability of the suit by plaintiff on the ground of absence of title is now to be tested on the anvil of the aforesaid principles laid down by the apex court. As aforementioned the Kiraynama dated 31.08.1966 (Ext. 3) has been executed by the original defendant Chiranjivi Sah and it has already been found by the learned court below that the same bears his genuine signature. In this Kiraynama (Ext. 3) the original defendant Chiranjivi Sah has stated as follows:

The counterfoils of the rent receipts (Ext. 9 and 9/A) bearing the signature of original defendant Chiranjivi Sah also demonstrate that the rent was paid by the original defendant Chiranjivi Sah to the plaintiff Urmila Devi. From these documentary evidence i.e. Kiraynama (Ext. 3) and the counterfoils of the rent receipts (Ext. 9 and 9/A) it is evident that there was jural relationship of landlord and tenant between the plaintiff Urmila Devi (since deceased) and the original defendant Chiranjivi Sah (since deceased) and in view of the law laid down by the Apex Court in the case of Sheela (Supra), such proof of relationship of landlord and tenant tantamounts to proof of ownership of the plaintiff over the suit premises so far as the tenant-defendant is concerned. The learned court below, on the basis of scrutiny of these documentary evidence, has rightly come to the conclusion that there is relationship of landlord and tenant. Once after reaching this conclusion, there was no requirement to further investigate the issue of title and the learned court below has committed no illegality in not considering the rival claim of title of the defendant-petitioners over the suit premises on the basis of adverse possession, by evaluating the evidence led in that regard.

Much hype has been created by making submission that the learned court below has itself proceeded to compare the disputed signatures of the original defendant Chiranjivi Sah on Ext. 3, 6, 9 and 9/A with his undisputed signature appearing on Ext. 2, 2A and 2B and it has been propounded that the learned court below has committed material irregularity in doing so instead of sending the same to a handwriting expert.

In view of the facts and circumstances discussed above, though it was not necessary for the learned court below to make comparison of the signatures of original defendant Chiranjivi Sah in view of its earlier order dated 28.08.2001 but even otherwise also a court is not altogether precluded for determining the veracity of a disputed signature of writing by making comparison itself. The principle in this regard has been laid down by the Apex Court in Murarli Lal vs. State of Madhya Pradesh and it has been laid down as follows:

".... The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometime said, we are afraid it is one of the hazardous to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is not expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court''s own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence..."

Mr. Sinha, has further argued that from the rival cases of the parties, it is transparent that a complicated question of title has arisen in the suit and in this view of the matter the learned court below, having the jurisdiction of a provincial small cause court as provided in Section 14 of the B.B.C. Act, should have refrained from entertaining the suit and instead ought to have returned the plaint for filing before the competent Court. In this regard it appears from the order dated 21.04.2007 passed in the suit (Annexure-3 to the revision application) that the defendant-petitioners had filed a petition purporting to be under Section 14(7) of B.B.C. Act read with Section 23 of the Provincial Small Causes Courts Act and under Order 7 Rule 10 C.P.C. praying for return of the plaint to be presented before the court having jurisdiction to determine the title and the said prayer was rejected by the learned court below after hearing the parties. It has been pointed out on behalf of the plaintiff-opposite party No. 1 that the petitioners preferred C.R. No. 1185/07 against the aforesaid order but the said civil revision application was dismissed as withdrawn by this Court. This fact has not been disputed on behalf of the petitioners. This Court therefore is of the opinion that once this issue has been determined by this Court between the parties in the same proceeding the same cannot be agitated at a later stage of the proceeding. Even otherwise also the Apex Court in the case of Budhu Mal Vs. Mahabir Prasad and Others, has ruled that it is not obligatory for the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant and it has also been further held that in a suit instituted by landlord against his tenant on the basis of contract of tenancy, a question of title can also incidentally be gone into and any finding recorded by a Judge, Small Cause in this behalf can not be res judicata in a suit based on title. As such there is no scope for this Court to align with the above submission in this regard made on behalf of the petitioners.

The petitioners have also filed interlocutory application (I.A. No. 249/12) praying to adduce the documents mentioned therein and attached with as additional evidence in the revision application. This interlocutory application has been filed under Order 41 Rule 27 C.P.C. The documents proposed to be adduced as additional evidence are the orders passed by the Municipal/Revenue Authorities. It is obvious that the petitioners have sought to adduce the aforesaid documents by way of additional evidence in support of their claim of title over the suit properties. In view of the facts and law as afore-discussed, this Court is of the opinion that these documents are irrelevant and immaterial for the determination of the issue which has arisen in this suit for eviction of the defendant and particularly when the defendant has failed to impeach the genuineness of the Kiraynama (Ext. 3) and the counterfoils of the rent receipts (Ext. 9 and 9A). The interlocutory application (I.A. No. 249/12) therefore, is, dismissed.

For the aforesaid reasons and discussions it is held that the plaintiff (since deceased and substituted by heirs) is the "owner-landlord" of the suit premises and there is relationship of landlord and tenant in between the plaintiff and the defendant and the suit for eviction on the ground of personal necessity filed by her against the defendant tenant is maintainable. It is also held that the finding by the learned court below regarding the existence of relationship of landlord and tenant in between the plaintiff and the defendant has been recorded in accordance with law and there is no perversity in any manner in the same.

So far as the issue of personal necessity is concerned, Mr. Sinha has submitted that the evidence led on behalf of the plaintiff do not substantiate the case of personal necessity of the plaintiff as distinguished from mere desire or wish. The learned counsel has placed the deposition of witnesses and has laid particular emphasis on the two receipts (Ext. A and A/1) to establish that Keshav Pd. Agrawal, the son of the original plaintiff and later substituted as plaintiff, had been an employed person working as manager of the trust. It has also been propounded that the present plaintiff now has become overaged to start a new business and as such the personal necessity as pleaded originally has come to vanish after the efflux of time. Mr. Bhagat, the learned counsel for the plaintiff-opposite No. 1, in reply, has submitted that the pendency of litigation cannot operate as to extinguish the right which was there on the date of institution of the suit and a litigant who succeeds in keeping the litigation pending cannot be allowed to take benefit of his own wrong.

From the impugned order as well as from the records, it is apparent that there is no pleading or evidence aliunde that the plaintiff has any other place for starting business. The witnesses of the plaintiff have consistently supported the need of the plaintiff as pleaded. The donation receipts (Ext. A and A/1) no doubt show that the present plaintiff had signed those receipts in the capacity of manager of Kameshwar Trust of Darbhanga Raj but there is no evidence on behalf of the defendants that the said employment was permanent or the salary paid to the present plaintiff was sufficient to support his livelihood including that of his family. From the deposition of the witnesses examined on behalf of the defendant including D.W.3 Arun Sah (petitioner No. 2 in this revision application), it does not appear that except the denial of the personal necessity of the plaintiff, any more substantial fact has been disclosed. The main plank of the opposition in this regard based on the employment of the present plaintiff Keshav Prasad Agrawal is aptly answered in the judgment in the case of Raghunath G. Panhale (Dead) By Lrs. Vs. M/s. Chaganlal Sundarji and Co., where their lordships have succinctly observed that "a landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business." It has further been also observed that "for that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant". It has also been argued by the learned counsel for the petitioners that the present plaintiff for whose need to start a business, the suit for eviction has been filed, has now become overaged and therefore the need as originally pleaded has come to vanish. This aspect of the matter has also been taken into notice by the apex court in the case of Gaya Prasad Vs. Sh. Pradeep Srivastava, where their lordships have observed " during 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum". It has been also ruled "it would be pernicious and unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period". In view of the dictum of the apex court it is difficult to accept the submission on behalf of the petitioners that the personal necessity of the landlord has vanished. This Court, therefore, is inclined to hold that the finding on the issue of personal necessity by the learned court below is in accordance with law and needs no interference.

For the foregoing reasons and discussions, this revision application, being devoid of merit, is dismissed. However, it is clarified that the findings recorded in this eviction proceeding are only incidental in nature and shall not operate as res judicata in a properly constituted suit on the basis of title for recovery of possession of the suit premises by the aggrieved party. In the peculiar facts and circumstances, the parties shall bear their own costs.