Shailendra Kumar Jha vs Ajay Dhari Singh and Ors

V. Nath, J.—Heard the learned counsel appearing on behalf of the petitioner and also the learned counsel appearing on behalf of the opposite parties.

This civil revision application has been preferred u/s 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter, in short, the B.B.C. Act)against the judgment and decree dated 25.03.2004 passed by Munsif I, Madhubani in Eviction Suit No. 02/96 whereby eviction decree has been passed against the defendant-petitioner from the suit premises. The parties hereinafter shall be referred to by the position held by them in the suit.

The plaintiff''s case, in short, was that in the family partition only land was allotted in the share of the plaintiff and, as he was then minor and his father was mentally indisposed, his cousin Indudhari Singh used to manage his affairs. It was the case of the plaintiff that Indudhari Singh, acting on behalf of the plaintiff, let out the piece of land measuring 600 sq. ft. after constructing a tin Shed house over the same to the defendant no. 1 for setting up an Aatta Chakki (flour mill), for 10 years with effect from June, 1984. It was further case of the plaintiff that after the expiry of the period of lease of 10 years, it was extended by one year more. The plaintiff''s case was that he had not been allotted residential house in his share in partition and therefore he required the suit premises for construction of his residential house and also for business purposes as the suit premises was located on the main road.

The defendant no. 1 filed written statement and denied the relationship of landlord and tenant in between him and the plaintiff, and claimed himself to have been inducted as tenant by Indudhari Singh (defendant no. 2). It is his case that he took vacant land on rent and after taking loan from the State Bank of India, he constructed the house over the same for establishing and running his flour mill. The defendant no. 1 also denied the case of personal necessity of the plaintiff as pleaded, by asserting that the plaintiff hailed from a well to do family and resided in a big building alongwith his parents and there was no need for him to have a separate house, and the suit premises was also not suitable for commercial purposes.

The defendant no. 2 Indudhari Singh, in his written statement supported the case of the plaintiff and accepted that he was managing the property of the plaintiff while he was minor. He also asserted that he had inducted the defendant no. 1 as tenant in the land, after constructing the tin Shed house over the same, for running the flour mill by the defendant no. 1.

After hearing the parties, the suit was decreed by judgment and decree dated 18.12.1997 by the learned court below. However, the defendant no. 1 filed C.R. No. 977/1998 before this Court and by order dated 16.09.1999, the revision application was allowed and the matter was sent back to the learned court below to decide the suit afresh after granting opportunity to the parties to adduce further evidence, if necessary.

After remand aforesaid, the learned court below took up the hearing of the suit afresh on the issues which included the issue regarding the relationship of landlord and tenant and bona fide personal necessity of the plaintiff as well as the issue whether the plaintiff had been set up by the defendant no. 2 for the purpose of eviction of the defendant no. 1 and as to whether the defendant no. 1 was liable to be evicted as the terms of the lease had expired.

The learned court below, after considering the evidence on record, has come to the finding that there is relationship of landlord and tenant in between the plaintiff and defendant no. 1 and the defendant no. 1 had been inducted as tenant by the defendant no. 2 who had been acting on behalf of the plaintiff who was minor at that time. It has further been held that vacant piece of land was not let out to the defendant no. 1 rather the said piece of land after constructing the tin Shed house over the same had been let out to the defendant no. 1for running the flour mill. The learned trial court below has also come to the conclusion that the plaintiff has the bona fide personal necessity of the suit premises for constructing his residential house over the same with further finding that partial eviction of the defendant no. 1 from the suit premises would not substantially satisfy the need of the plaintiff. On the basis of these findings, the learned court below has decreed the eviction suit by the impugned judgment and decree.

The learned counsel appearing on behalf of the petitioner has firstly submitted that the defendant no. 1 has taken the vacant piece of land on rent and thereafter he constructed the house over that land and established his flour mill therein and therefore the provision of B.B.C. Act would not apply. It has been contended that the learned court below has failed to consider that no evidence has been adduced by the plaintiff to establish the construction of tin Shed house by him and the findings in this regard has been recorded on the basis of the surmises and conjectures only. It has been next submitted that the learned court below has not properly considered the question of partial eviction which should have been considered separately by framing independent issue in that regard but the learned court below has wrongly considered the said question as subservient to the issue of personal necessity. It has also been submitted that the plaintiff has failed to establish his bona fide and reasonable personal requirement of the suit premises as distinguished from mere desire and the evidence led by the plaintiff in this regard are not sufficient to show that the personal necessity as pleaded is something more than mere desire, suggesting dire necessity of the plaintiff for the suit premises. The learned counsel has thus contended that the findings recorded by the learned court below are contrary to the evidence on record and against the settled principles, and cannot be sustained.

The learned counsel appearing on behalf of the plaintiff-opposite party has contested the submissions made on behalf of the defendant-petitioner and has submitted that it was for the defendant no. 1 to establish that he had made construction of house after taking vacant piece of land on rent but the defendant no. 1 had not adduced any evidence to establish this fact. It has been urged that the learned court below has committed no illegality in reaching to the finding that the vacant piece of land after constructing tin Shed premises was let out to the defendant no. 1. It has been also submitted that the defendant no. 2, who was the cousin of the plaintiff, has accepted that he had been managing the affairs of the plaintiff during his minority and had granted the tenancy to defendant no. 1 on behalf of the plaintiff. The learned counsel has further submitted that the bona fide personal necessity of the plaintiff for the suit premises is fully established by the evidence on record and since the question of partial eviction was interlinked with the issue of personal necessity, there was no illegality in the impugned order by considering the said question alongwith the issue of personal necessity. The revisional jurisdiction u/s 14(8) of the B.B.C. Act, it has been submitted, is limited in scope and the reappreciation of evidence cannot be done in order to reach to a different finding.

The first perceptible question for consideration is whether the land after construction of tin Shed house over the same had been let out to the defendant no. 1or only the vacant piece of land had been given under tenancy. The plaintiff has stated in the plaint that the land after constructing tin Shed house was let out to the defendant for running the flour mill. Admittedly, the suit premises consisting of tin Shed house is upon the land of the plaintiff. However, it is the specific case of the defendant that he had taken the vacant piece of land and thereafter had constructed the house over the same for running the flour mill. In view of the specific positive assertion by the defendant no. 1 regarding construction of the house by him over the vacant land, the burden of proof clearly lay upon him to establish the said fact. No documentary evidence has been led by the defendant no. 1 to substantiate his case of construction of the house by him, although in his deposition he has stated that the cost of the construction of house was to be returned to him at the time of vacating the suit premises but he also accepted that the account of the cost, incurred by him in the construction of the house, had not been kept by him. The learned court below has considered this aspect and has further also taken notice of the fact that the defendant no. 1 had taken loan of Rs. 15,000/- for establishing the flour mill from the bank which, according to the prevalent practice, does not give cash to the debtor rather makes payment directly to the manufacturer of the flour mill by cheque. In view of these facts and in absence of material evidence, supporting the construction of the house on the vacant land by the defendant no. 1, the learned court below has committed no illegality in recording the finding that the land, after constructing the tin Shed house over the same was let out to the defendant no. 1. Moreover, it is not the case of the defendant no. 1 that the tenancy was only for the vacant piece of land and not for running the flour mill in the house over the same. Rather it is the definite case of the defendant no. 1 that he took on rent the vacant piece of land for establishing a flour mill over the same by constructing house over the same. Thus clearly the tenancy was for running the flour mill in the house and the rent was payable for the same. In similar facts, this Court, in the matter of Shri Binay Kumar Maheshwari Vs. Fanindra Prasad Mishra, , has held that the rent must be held to be inextricable part of the grant of lease which is referable to a building(in the present case tin Shed house), the lease must be held to be with respect to the building. It has been further held in that case that the rent being payable in respect of the building, which was later constructed as per the terms of the lease, it cannot be called a vacant land so as to stand out of the definition of the "building" in Section 2(b) of the B.B.C. Act. The learned court below has elaborately discussed the entire evidence in this regard and has reached to the right conclusion that the tenancy was not with regard to the vacant piece of land but with regard to the tin Shed house and therefore the provisions of the B.B.C. Act was applicable. There is thus no infirmity in this finding.

The defendant no. 1 has not claimed his own title over the suit land but has accepted that he is the tenant of defendant no. 2 and thereby he has denied his relationship as tenant with the plaintiff. However, the defendant no. 2, who is the cousin of the plaintiff, has in his written statement accepted that he had been managing the affairs of the plaintiff during his minority because the mental condition of the father of the plaintiff was not good and the mother of the plaintiff was a Pardanashin lady. On behalf of the plaintiff, the order passed in Partition Suit No. 548/1978 and the compromise petition Ext.3A in that partition suit have been filed which show that the plaintiff has been allotted only 5 katha 7 dhur of land in the disputed plot and the defendant no. 2, who is a cosharer of the plaintiff, has also accepted that the land on which the tin Shed house stand, has fallen in the share of the plaintiff. No evidence has been led on behalf of the defendant no. 1 in rebuttal of the aforesaid fact and the particular statement of the defendant no. 2 which is clearly against the interest of the defendant no. 2. The learned court below has considered in detail the evidence led by the parties in this regard and has rightly reached to the finding that the plaintiff is the owner of the suit premises. The plea raised by the defendant no. 1 that the defendant no. 2 was the landlord and not the plaintiff, could not be substantiated by him in the suit. It has also not been denied that the plaintiff has now attained majority. As such the learned court below has correctly held that the plaintiff was entitled to maintain the suit for eviction on ground of personal necessity.

From the compromise petition (Ext.3A) of Partition Suit No. 548/1978, it appears that no house, room or residential portion has been allotted in the share of the plaintiff and rather it has been specifically stipulated therein that only minor members of the family were allowed to reside in the ancestral house. Thus the need of the plaintiff, after attaining majority, to construct a residential house for his residence is clearly bona fide and reasonable. From the evidence on record it could not be established that the personal necessity as pleaded by the plaintiff was only a desire. The learned counsel appearing on behalf of the petitioner has relied upon a decision of this Court reported in Ratanlal Baid Vs. Sohanlal Saha, for his proposition that the bona fide need of the landlord must be something more than his wish or desire to occupy the suit premises. However, in the said decision itself his Lordships has held that the landlord is the best Judge of his residential requirement and has further observed that the term bona fide does not convey the idea of absolute necessity in the sense that there would be no other possible alternative for the landlord for meeting his requirement except by occupying his property. In the present case, there is also no evidence on behalf of the defendant that the plaintiff has got other alternative accommodation. Thus there is no substance in the submission on behalf of the petitioner in this regard. The learned court below has discussed the material evidence before reaching to the finding that the plaintiff has got bona fide and reasonable personal necessity of the suit premises for constructing a residential house and also for using the same for commercial purposes. The learned court below has also considered the location and position of the suit premises in the land of the plaintiff and has come to the conclusion that due to the peculiar construction of suit premises, its demolition would be necessary for the construction of the house of the plaintiff and as such the partial eviction of the defendant no. 1 from the suit premises would not substantially satisfy the need of the plaintiff. The question of partial eviction is to be considered in view of the proviso to Section 11(1)(C) of the B.B.C. Act and it is not necessary that this question should be considered only after framing a separate issue. The law does not require so. The emphasis is on the consideration of this question while considering the broader issue of personal necessity. The learned court below has not committed any illegality in considering the question of partial eviction alongwith the issue of personal necessity.

The revisional jurisdiction u/s 14(8) of the B.B.C. Act is not akin to appellate jurisdiction of a court and the reappraisal of the evidence for the purpose of reaching to a different conclusion is not permissible. The court exercising jurisdiction u/s 14(8) of the B.B.C. Act can look into the evidence only for the purpose of examining that the findings recorded by the court below are in accordance with law. It will be apt here to refer to the observation of the apex court, in the matter of Chandrika Prasad (D) Thr. Lrs. and Another Vs. Umesh Kumar Verma and Others, , which considering the scope of Section 14(8) of the B.B.C. Act is as follows:

...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....

Considering the impugned judgment of the learned court below it is manifest that the findings have been arrived on the basis of evaluation of the evidence on record. During the course of argument no perversity in aforesaid findings could be established on behalf of the petitioner. Thus the findings that the defendant no. 1 is the tenant of the plaintiff in the suit premises constructed by the plaintiff and the plaintiff has succeeded in establishing his bona fide and personal necessity for the entire suit premises, are held to be in accordance with law.

For the foregoing reasons and discussions, I find no merit in this revision application. The impugned judgment and decree passed by the learned court below is accordingly, upheld and this revision application is dismissed.