Rajendra Prasad Sah vs Basudev Prasad Gupta & Anr

This revision petition under Section 14(8) of the Bihar

Buildings (Lease, Rent and Eviction) Control Act, 1982 (in short

''BBC Act'') has been filed on behalf of the defendant petitioner for

setting aside the judgment and decree dated 4.9.2015 and

23.9.2015 passed by learned Munsif-II, Vaishali at Hajipur in

Eviction Suit No.3 of 2008 by which and where under he decreed

the aforesaid suit on contest and directed the petitioner defendant

to vacate the disputed shop within 30 days and to hand over

possession of the same to the plaintiff opposite party no.1, failing

which plaintiff opposite party no.1 shall be entitled to get the

aforesaid shop vacated through the process of the court.

Plaintiff opposite party no.1 filed the above stated

Eviction Suit No.3 of 2008 against the defendant petitioner on the

ground of personal necessity claiming, himself, to be landlord of

the disputed shop. The plaintiff opposite party averred in his plaint

that the defendant petitioner was inducted as tenant on 20.2.1995

by his elder brother Satya Narayan Sah on monthly rent of

Rs.350/- and on the same day, one deed of rent was also executed

by the defendant petitioner in favour of aforesaid Satya Narayan

Sah. The aforesaid deed of rent was handed over to Satya Narayan

Sah and after that defendant petitioner started a jewellery shop in

the disputed shop and started paying rent to the above stated Satya

Narayan Sah. However, in family partition, disputed shop fell in

the share of plaintiff opposite party no.1 and the aforesaid fact was

communicated to the defendant petitioner by Satya Narayan Sah

and thereafter, defendant petitioner agreed to pay rent of shop to

the plaintiff opposite party no.1 and similarly, Satya Narayan Sah

handed over deed of rent to plaintiff opposite party no.1. Petitioner

defendant started paying rent to plaintiff defendant no.1 but in the

month of February, 2007, he stopped from making payment of

rent to the plaintiff opposite party no.1 when the plaintiff opposite

party no.1 asked petitioner defendant to vacate the suit premises as

plaintiff opposite party no.1 was in bonafide need of disputed shop

because his son wanted to open readymade garments shop in the

suit premises. Plaintiff opposite party no.1 gave legal notice to the

petitioner defendant but even then petitioner defendant did not

vacate the suit premises. Thereafter, plaintiff opposite party no.1

brought the above stated Eviction Suit No.3 of 2008.

Petitioner defendant appeared before the court below

and filed written statement pleading therein that in the year 1964

father of plaintiff opposite party no.1 had let out shop in question

to his father on the monthly rent of sum of Rs.10/- and since then

his father was doing business in the above stated shop and after

death of his father, petitioner defendant started his business in the

aforesaid shop. However, father of plaintiff opposite party no.1

took huge amount for renovation of his house and subsequently,

having got renovated the house, elder brother of the plaintiff gave

shop in question to him in the year 1995 on the monthly rent of

Rs.105/- but no deed of rent was executed and in course of time

rent of the shop in question was increased upto Rs.350/-.

Defendant petitioner admitted that in the family partition, plaintiff

opposite party no.1 got shop in question in his share and the

aforesaid fact was communicated to him by Satya Narayan Sah

and thereafter, he started paying rent of shop in question to the

plaintiff opposite party no.1. Petitioner defendant averred in his

written statement that son of plaintiff opposite party no.1 is not

unemployed rather he has one shop at Mahua Bazar and the

plaintiff opposite party no.1 is not in bonafide need of the shop in

question. Further petitioner defendant took stand that plaintiff

defendant 1st party took Rs.3,00,000/- from him for selling the

shop in question but plaintiff opposite party no.1 did not execute

absolute sale deed as yet and therefore, there is no relationship of

landlord and tenant between plaintiff opposite party no.1 and the

defendant petitioner.

On the basis of pleadings of the parties, learned court

below framed following issues:-

i) Is the suit as framed maintainable? ii) Has plaintiff got valid cause of action and right to sue? iii) Is the suit barred by the law of limitation, estoppel and acquiescence? iv) Is there a relationship of landlord and tenant between parties and still subsisting after 25.5.2007 ? v) Has the plaintiff got the personal necessity of disputed shop ? vi) Is defendant 1st set defaulter of rent to the disputed shop ? vii) Could the requirement of plaintiff be met by partial eviction of disputed shop ? viii) Is plaintiff entitled for the relief prayed ?

Both parties adduced oral and documentary evidence

and the learned court below, having considered evidences

available on record, came to the conclusion that there was

relationship of landlord and tenant between the defendant-

petitioner and plaintiff-opposite party and furthermore, learned court below came to the conclusion that plaintiff-opposite party is

in bonafide need of disputed shop. The learned court below also

held that need of plaintiff-opposite party could not be satisfied by

partial eviction.

Learned counsel appearing for the defendant-petitioner

challenged the impugned judgment on the ground that the

defendant- petitioner had filed petition before the court below on

12.6.2014 for recast of issues under Order 14 rule 5 of the CPC

but the prayer of the defendant- petitioner was turned down by the

court below against which the defendant- petitioner preferred

CWJC no. 15754/2014. However, during the pendency of the

aforesaid CWJC no. 15754/2014, learned court below passed the

impugned judgment as a result whereof the aforesaid CWJC no.

15754/2014 stood dismissed being infructous giving liberty to the

defendant- petitioner to avail remedy as provided under section

105(1) of the CPC. He, further, submitted that it is specific case

of the defendant- petitioner that plaintiff-opposite party had taken

huge amount in advance for transfer of disputed premises but did

not execute sale deed in respect of suit premises. No issue in

respect of aforesaid fact was framed by the court below and that

was the reason the defendant- petitioner had filed petition for

recast of the issue. Learned counsel for the petitioner referred

decisions of Badami (deceased) by her legal representative vs.

Bhali reported in (2012) X1 Supreme Court cases page 574,

case of Ved Prakash Wadhwa vs. Vishwa Mohan reported in

AIR 1982 SC 816 and Chebrol Sriramalu vs. Vakalapudi

Satyanarayana reported in (2013) 9 Supreme court cases 404

to substantiate his contentions that court below committed

illegality while rejecting prayer of recast of the issues.

Learned counsel for the defendant- petitioner submits

that learned court below failed to appreciate the evidence in its

right perspective because plaintiff-opposite party could not

succeed to prove his bonafide need but even then learned court

below decreed the suit of plaintiff-opposite party.

On the other hand, learned counsel for plaintiff-

opposite party refuted the aforesaid submissions arguing that it is

well settled proposition of law that complicated question of title

can not be decided in suit filed under section 11(c ) of the BBC

Act and in the case filed under the above stated section, the court

has to see only as to whether there is relationship of landlord and

tenant between the parties or not? In support of his contention, he

referred several decisions such as 2004 (I) PLJR page 476, AIR

2002 SC 138, AIR 2002 SC page 141, 2002 (3) BBCJ page 159,

2005 (2) BBCJ page 4 and several other decisions.

Learned counsel for the plaintiff-opposite party further

submitted that plaintiff-opposite party fairly proved his bonafide

need and learned court below, having considered the evidence

available on record, passed the impugned judgment and, therefore,

there is no need for this court to reappraise the evidence while

exercising revisional jurisdiction. He, further, submitted that so

far as question of recast of issues is concerned, there was no need

to recast issues because in the present dispute, court had to see

only relationship of landlord and tenant and the court has no

jurisdiction to examine title of the party.

Having heard the contentions of both parties. I have

gone through the record along with lower court record.

It is admitted case of the parties that disputed shop

fell in the share of plaintiff-opposite party in his family partition

and the aforesaid fact was communicated to the defendant-

petitioner by elder brother of plaintiff-opposite party. It is also

admitted position that after the aforesaid communication the

defendant- petitioner started paying rent of disputed shop to

plaintiff-opposite party. Therefore, ownership of plaintiff-opposite

party over the disputed shop has not been denied by the defendant-

petitioner rather it is admitted position that there is relationship of

landlord and tenant between plaintiff-opposite party and the

defendant- petitioner. However, the defendant- petitioner claimed

that plaintiff-opposite party entered into an oral agreement with

him for selling disputed shop and in pursuant thereto, he took huge

amount in advance. Therefore, even if the aforesaid stand of the

defendant- petitioner assumed to be true, then also, according to

the case of the defendant- petitioner itself, title of disputed shop

has not been passed to the defendant- petitioner as yet. Moreover,

it is settled principle of law that if an eviction suit is filed under

section 11(c ) of the BBC Act, in the aforesaid suit complicated

question of title can not be decided and the court has see only as to

whether there is relationship of landlord and tenant between the

parties or not. Therefore, in my view, learned court below had

refused to recast issues on the prayer of the defendant- petitioner

because there was no need to frame any issue in respect of so-

called oral agreement and taking of advance money.

As I have already stated that relationship of landlord

and tenant between the parties is an admitted fact and furthermore,

I find that witnesses have specifically stated regarding bonafide

need of plaintiff-opposite party and learned court below held that

plaintiff-opposite party is in bonafide need of disputed shop.

Learned counsel appearing for the defendant

petitioner could not succeed to point out any perversity into the

impugned judgment and, therefore, in my view, this court should

not reappreciate the evidence while exercising revisional

jurisdiction.

On the basis of the aforesaid discussions, l do not

find any ground to interfere into the impugned judgment and

decree and accordingly, this revision petition stands dismissed and

the impugned judgment and decree is, hereby, confirmed.