JUDGMENT
S.B. Sinha, J.
1. This civil revision application, under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter for the sake of brevity referred to as the said Act), is directed against the judgment dated 20th July, 1987 passed by Sri Ratnesh Prasad, Munsif, East Muzaffarpur in Eviction suit No. 56 of 1985 whereby and whereunder the said learned court decreed the suit for eviction filed by the plaintiff opposite party against the defendant-petitioner on the ground of his personal necessity.
2. The facts of the case, benefit of all unnecessary details, are as follows:
The petitioner and the opposite party are full brothers. Abdul Qadir Khan, the father of the parties to the suit was a tenant in the building in question, which belonged to one Putli Devi. Upon the death of the aforementioned Abdul Qadir Khan, both the plaintiff and the defendant became tenants in respect of the said tenant premises.
3. According to the plaintiff, the said Abdul Qadir Khan used to run a watch shop in a portion of the tenanted premises under the name and style of ‘Bihar National Watch Company’ and used to reside with his family member in the back portion thereof.
4. In a partition suit filed amongst the co-sharers of Putli Devi one Katha and eight Dhurs of land was allotted to the said Putli Devi which included the suit premises.
By a registered deed of the sale dated 28-8-1972 Putli Devi sold the said one Katha and eight Dhurs of land with structures standing thereon to Govind Prasad Jalan and Hari Prasad Motani.
5. Although there is no specific pleading in this regard in the plaint; but from a perusal of some sale deeds, it transpires that there had been an alleged partition by and between the said Govind Prasad Jalan, and Hari Prasad Motani. Govind Prasad Jalan, thereafter, executed a registered deed of sale in respect of 14 Dhurs of land to the plaintiff opposite party on 23-6-1984, He also executed two other deeds of sale on 23-6-1984 in favor of the minor sons of the plaintiff. The said three deeds of sale were marked as Ext. 3 to 3/B.
So far as the deed of sale dated 23-6-1984 executed by Govind Prasad Jalan in favor of the plaintiff is concerned, the same was marked as Ext 3/A.
6. The case of the plaintiff appears to be that he and his two sons got a joint house plan passed by Muzaffarpur Regional Development Authority for construction of a market.
7. According to the plaintiff, five shop rooms to the west of land leaving a passage of seven feet’s, have already been constructed and in one of the said rooms he is running a watch repairing shop under the name and style of ‘Time House’.
The plaintiffs further case is that to the East of the said shop rooms is the eastern part of the old shop rooms having a partition wall made of word from West, which is occupied by the defendant (petitioner) in respect whereof he had been contributing half of the rent i.e. Rs. 17.5 paise to the plaintiff for payment by way of rent to the landlord; but after purchase of the land he stopped into the shoes of Mostt. Putli Devi and thus became a ‘landlord’ himself in respect thereof.
8. According to the plaintiff, he requested the defendant to vacate the premises in suit for the purpose of completing the construction from the eastern side leaving a passage in between the shop rooms but despite the same, the defendant did not vacate the suit premises.
The plaintiff, therefore, filed the aforementioned suit on the ground of his alleged personal necessity for opening of a passage in his own land purchased by him in order to provide business site to the shop rooms constructed by him wherein he is running a watch repairing shop as well as for providing passage to the other newly constructed shops and for the purpose of construction of his residential hones on the first floor thereof.
9. The petitioner in terms of the provisions contained in Section 14 of the said Act obtained leave to contest the suit and thereafter filed a written statement contending, inter alia, therein that there has been no relationship of landlord and tenant by and between the plaintiff and the defendant.
10. According to the defendant after the death of their father, they became joint tenants but they used to run business separately by bifurcating the shop rooms into two parts.
According to the defendant there had been no partition of the holding in question by and between the plaintiff’s vendor and Hari Prasad Motani and thus the plaintiff and his sons only became co-owners in respect of the holding in question.
11. It is the further case of the defendant that parties used to pay rent jointly to their landlord.
The defendants therefter had also purchased 11 and 1/2 dhurs of land from Shankar Lal Mutani son of Hari Prasad Mutani under a registered deed of sale dated 24-3-1986. The said deed of sale was marked as Ext. ‘C’.
12. Before the court below the parties adduced both documentary and oral evidences.
13. The plaintiff allegedly got the suit premises measured by a surveying knowing Advocate, who submitted a report which was marked as Ext. 6/C.
14. In the impugned judgment, the learned court below, inter alia, held as follows:
Now the question is whether the plaintiff is entitled to eviction of the defendant on the grounds mentioned in the plaint. Plaintiff wants eviction of the defendant on the ground of his personal necessity for opening a passage in his own land purchased by him in order to provide business site to his shop room in which the plaintiff is running repairing watch shop under the name and style ‘Time House’ as well as for provision of site to the other newly constructed shop room and also to construct the first floor over it for his residence since plaintiff has no residential house of his own and for that purpose plaintiff requires occupation of disputed shop. Defendant has not disputed the tact that plaintiff has no residence of his known or that passage is essential for other shops. He has only stated that this is no ground for eviction of defendant. For that he has relied upon a decision cited in 1972 BLJR p. 251 but in this case personal requirement of plaintiff is based on a plan passed by Muzaffarpur Regional Development Authority which is Ext. 4 in this case and plaintiff has stated so in Para 15 of his plaint. In this plan, passage as claimed by the plaintiff is passed, and plaintiffs claim is in conformity and at the instance of the plan passed by M.R.D. Authority. The plaintiff’s case is therefore, covered by Clause ‘F’ of Section 11 read with Clause (c) of B.B.C. Act. As the plan has been sanctioned by Regional Development Authority within whose jurisdiction the premises is situated. This objection of the defendant, therefore, does not hold good and is, therefore, fit to be rejected. In this case since plaintiff had offered reasonable accommodation to defendant question of eviction on the ground of personal necessity should be as liberally considered.
14-A. Mr. Raghib Ahsan, the learned Counsel appearing for the petitioner raised the following contentions:
(a) The impugned judgment of the learned court is not ‘according to law’ in so far as it misread the deeds of sale executed in favor of plaintiff (Ext. 3/A) wherein it was clearly stipulated that the plaintiff had been in possession of the premises as a tenant.
(b) The learned court below had no jurisdiction to hold that there had been a partition between Govind Prasad Jalan and Hari Prasad Motani in view of the fact that there was no pleadings in the plaint to the aforementioned effect.
(c) In any event the purported requirement of the plaintiff cannot be said to be a requirement for his personal occupation either bona fide reasonably or in good faith or for any occupation to any whose benefit the building is held by him as contemplated under Section 11(1)(c) of the said Act inasmuch as the plaintiff intended to convert the building in question to a passage.
In this connection, the learned Counsel has relied upon Haji Abdul Ghaffars, Salwal Ram and Anr. 1969 BLJR 164; Binapani Sarkar v. Indradeo Singh Mahabir Prasad Saraoji and Ors. v. Vibhuti Mohan Bhattacharjee and Ors. .
15. Mr. S.N. Jha, the learned Counsel appearing for the respondents, on the other hand, in reply submitted:
(a) From a perusal of the deeds of sale (Ext. 3 series) it would appear that specific portions of the property were sold by Govind Prasad Jalan. According to the learned Counsel even the survey knowing Advocate in his report found that the suit land, which comprises of an area of 165 square feet is in occupation of the defendant and as such the plaintiff was entitled to file a suit for eviction in respect of the premises in question.
(b) Although there was no specific pleadings of partition by and between the Govind Prasad Jalan and Hari Prasad Motani, but in view of the fact that both the parties adduced evidences on the said issue the defendant cannot be said to have been prejudiced in any manner for the same.
In this connection the learned Counsel has relied upon Bhagmati Prasad v. Chandramauli AIR 196b SC 735 and Ram Samp Gupta v. Bishun Narain Inter College and Ors. .
In the alternative it was submitted that for effecting partition the co-owners can make an arrangement, which also amounts to partition. For this purpose the learned Counsel has relied upon Sitaram Prasad v. Mahadeo Rai and Ors. ; Baidyanath Prasad Mishra and Ors. v. State of Bihar and Ors. ; Kale and Ors. v. Deputy Director of Consolidatipn and Ors. ; A. Ragha Vamma and Anr. v. A. Chenchamma and Anr. and Puttrangamma and Ors. v. M.S. Ranganna and Ors. .
(c) As the plaintiff has no residence of his own and the passage is essential for his shop, the plaintiff’s case is covered by Clause f of Section 11(1) of the said Act.
Re: Contention (a)
16. From the deed of sale dated 23-6-1984 (Ext. 3/A) it appears that the same, inter alia, contains a stipulation, translation whereof reads thus:
Abdul Qadir Khan, father and thereafter the claimant has been living in the said land and the house since a long time as a tenant. Hence, the claimant put forward a proposal with me, the executants, that as the father of the claimant and the claimant himself has been living in the said house as a tenant since a long time and has been keeping a shop, I should be kind enough to sell the house and the land to him for a proper price. I, the executants, accepted and agreed to the request. Between me, the executants, and claimant Rs. 9, 500 was settled as just and proper price. Therefore, it became necessary for me, the executants, to execute a sale deed in the name and in favor of the claimant.
17. For the aforementioned stipulation it is, therefore, clear that in the said deed of sale the plaintiff had been shown to be in possession of the Dermises in question as a tenant.
18. In this case both the parties have adduced their evidences with regard to their respective possession.
From the judgment of the learned court below, however, it does not appear that it came to any finding that there has been any severance of the joint tenancy.
19. Although a survey knowing advocate was appointed by the plaintiff and he his report (Ext. 6/C) opined that the suit land comprising 165 square feet was In possession of the defendant as a tenant, but from his report it does not appear that he took into consideration the stipulations contained in the deed of sale executed by Govind Prasad Jalan in favor of the plaintiff (Ext. 3/A) and other relevant deeds of sale executed in favor of the parties and other persons.
It further appears that the learned court below has not considered the evidences adduced on behalf of the parties at all and solely relied upon the report of the survey knowing person, who happens to be an advocate. In this case no pleader commissioner was appointed thus the said report along with the evidence of maker thereof who examined himself as P.W. 19 (Achuta Nand Sharma) was required to be considered along with the other evidences on record. It was open to the defendant to show by adducing his known independent evidence that the report submitted by the surveying advocate does not depict a true state of affairs.
20. P.W. 19 in his evidence admitted that he did not measure the holding in question with reference to any Khesra nor was he supplied with a copy of the plaint or the written statement by the plaintiff.
21. The court below has further not considered the effect of contradictions in the recitals and the boundaries mentioned in the deeds of sale and the effect thereof.
22. It further appears that the plaintiff, who examined himself as P.W. 16 had admitted that they are in physical possession of the tenanted premises which used to be held by Qadir Khan as a tenant. He further admitted that the shop room was divided and western part was allotted to the defendant.
23. Govind Prasad Jalan, the vendor of the plaintiff who examined himself as P.W. 20 has admitted that the premises sold by him to the plaintiff are in possession of the parties to the suit as tenants.
24. It has further come in evidence that Govind Prasad Jalan or his co-owners or their vendor, Putli Devi did not realise any rent from the parties.
25. The learned court below failed to take into consideration the aforementioned evidences on record on their proper perspective.
He further failed to take into consideration that the question of merger of interest arises only when person acquires a higher interest in respect of the entire property and not in respect of a portion thereof, particularly when there was no severance of joint tenancy.
The learned court below has not further taken into consideration the effect of the recitals make in Ext. (C) and boundaries of the land mentioned therein.
The learned court below evidently has failed to take into consideration various relevant facts and thus the impugned judgment cannot be said to be in accordance with law.
Re: Contention (b)
It is true that the pleadings in India should not be construed in a pedantic manner and in a given case the pleadings of the parties may be construed liberally so as to do justice between the parties.
26. However, the question to the effect as to whether there has been a partition by metes and bounds between two co-owners or not is essentially a question of fact. The fate of the suit of this nature depends upon the specific pleadings and proof thereof.
27. True it is that there was no specific pleadings about the previous partition by and between the vendor of the parties namely, Govind Prasad Jalan ahd Hari Prasad Motani; but it appears from the judgment of the learned court below that the parties to the suit knew about the issue involved and led their evidences. A a matter of fact, as noticed hereinbefore, previous partition between Govind Prasad Jalan and Hari Prasad Motani was attempted to be provided by reason of the deeds of sale executed by them in favor of the plaintiff and his sons as well as the defendant as contained in Ext. 3 series and Ext. ‘C’.
From a perusal of the deeds of sale aforementioned it is clear that the same contain specific recitals to the effect that there had been a partition and or arrangement with regard to the properties purchased by Govind Prasad Jalan and Hari Prasad Motani jointly from Putli Devi.
In fact the parties to the suit as also sons of the plaintiff purchased specific portions of the property in question from their respective vendors.
28. In Bhagwati Prasad’s case (supra) the Supreme Court held as follows;
If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is; did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.
29. Similarly, in Ram Sarup Gupta’s case (supra), the Supreme Court followed the aforementioned decision of the Supreme Court and laid down the law in following terms:
The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings, however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with stick interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the Question about lack of pleading is raised the enquiry should not of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceed to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.
30. It is thus, evident that the defendant has not been prejudiced by reason of absence of a specific plea in the plaint that there had been a previous partition between Govmd Prasad Jalan and Han Prasad Motani.
In fact the defendant himself purchased specific partition of land from Hari Prasad Motani, which according to him was allotted to his share.
In this view of the matter, in my opinion, the petitioner cannot be said to have been prejudiced in any manner whatsoever by reason of absence of pleadings of ‘Partition’ by metes and bounds in the plaint.
31. Re: Contention (c)
So far as third contention raised by Mr. Raghib Ahsan is concerned the same has substance. The requirement for personal occupation of a building is different from the requirement of a building for re-execution or for a passage for another building. A person may require the building for the purpose mentioned in Clause f of Section 11(1) of the said Act. However, a suit, which has been filed on the ground of personal necessity in terms of Section 11(1)(f) of the said Act cannot be tried summarily whereas a suit for eviction of the ground of personal necessity as contemplated under Section 11(1)(c) of the said Act may be tried summarily.
This suit has been tried summarily by following the procedure laid down under Section 14 of the said Act. It was, therefore, incumbent upon the learned court below to consider the question as to whether the requirement of the plaintiff as alleged in the plaint is covered by Clause (f) of the Sub-Section (1) of Section 11 of the said Act or not. In such a situation the court could not have proceeded to decide the suit by following the procedure laid down under Section 14 of the said Act.
The requirements of the landlord as contemplated under Clauses (c) and (f) of the Sub-section (1) of Section 11 of the said Act are absolutely different and cannot be said to have arisen conjointly. The plaintiff in this case has not stated that he requires the suit premises for his own occupation. His requirement to construct residential house is not on the suit premises but on a portion of his purchased land where shop rooms have already been constructed, which is not the suit premises.
32. However, as would be indicated hereinafter the plaintiff’s case is not covered even under Section 11(1)(f) of the said Act. In Haji Abdul Ghqffar’s case (supra), it was held that the word ‘occupation’ occurring in Section 11(c) of the said Act cannot be interpreted to include construction or re-construction of the building.
In Binapani Sarkar’s case (supra) a learned single Judge of this Court noticed- the difference in language in the provisions of the Bihar Act and the provisions in this regard in similar Acts of some other stated and held that the requirement of a landlord for re-modeling or reconstructing the house is not a ground for eviction of a tenant.
Clause (c) Section 11(1) of the said Act provides for eviction of a tenant only where the building is reasonable and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord.
Similarly, in Mahabir Prasad Saraoji’s case (supra), a division Bench of this Court held as follows:
The personal necessity alleged and pressed in the Courts below was that the appellants required at least a portion of the land on which the house was situated for constructing another house on the vacant land behind the house which is the subject-matter of the dispute, in the present case. Such a necessity cannot be a ground for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as ‘the Act’) Section 11 of the Act lays down the ground on which a tenant can be evicted. He cannot be evicted on grounds not mentioned in that section. The ground commonly known as personal necessity is stated in Clause (c) of Sub-section (1) of Section 11 which reads as follows:-
Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building held by the landlord.
It is manifest from the language of this clause that if the landlord does not require the building for his own occupation or for the occupation of any person, for whose benefit the building is held by him, he cannot get the tenant evicted on the ground of personal necessity.
33. In this case as would appear from Paragraph 14 of this judgment that the learned court below purported to have held that the requirement of the plaintiffs so far as the suit premises is concerned for the purpose of using it as a passage, is covered by Section 11(1)(f) read with Section 11(1)(c) of the said Act.
34. Section 11(1)(f) of the said Act was introduced for the first time in the year 1982. Section 11(1)(f) of the said Act reads as follows:
The landlord requires the premises in order to carry out any building work at the instance of the Government or the Municipality or Municipal Corporation or the Notified Area Committee or the Regional Development Authority or any other Authority within whose jurisdiction the building lies and such building work cannot be properly and fully carried out without the premises being vacated.
35. From a plain reading of the aforementioned section, it is evident that the requirement of the landlord is for the purpose of carrying out any building work at the instance of the Government or the Municipality, or Municipal Corporation or the Notified Area Committee or the Regional Development Authority or any other Authority with whose jurisdiction the building lies and such building work cannot be properly and fully carried out without the premises being vacated.
36. In this case the plaintiffs have merely contended that he got a plan passed by the Regional Development Authority. Thus the alleged requirement to the plaintiff was his own requirement and not the requirement of the Regional Development Authority or any other authority as provided for in Clause (f) of Section 11(1) of the said Act.
In my opinion such a requirement will not be the requirement of the plaintiff and thus the same is not covered even under Clause (f) of Section 11 (l) of the said Act.
37. In any event in view of the judgment of this Court, as referred to hereinbefore, the purported requirement of the landlord for the purpose of converting the same into a passage and thus obviously for demolishing the structure standing thereon, cannot be said to be a requirement within the meaning of Clause (c) of Section 11(1) of the said Act, a suit was not maintainable.
38. In any event the same could not have been tried by following a special procedure is laid down under Section 14 of the said Act.
In this view of the matter, the impugned judgment passed by the learned court below must be held to be wholly illegal and without jurisdiction.
39. In the result, this civil revision application is allowed and the judgment and decree dated 30th July, 1987 passed in Eviction Suit No. 56 of 1956 is set aside.
40. In the facts and circumstances of the case, there will, however, be no order as to costs.