JUDGMENT
Nagendra Rai, J.
1. This revision application has been filed by the defendants against the judgment dated 30th November, 1990, passed by the Subordinate Judge-VIII, Patna in Eviction Suit No. 2 of 1990/52 of 1990, by which he has decreed the suit for eviction filed by the plaintiffs-opposite parties against them.
2. The plaintiffs-opposite parties filed Title Suit No. 87/83 in the Court of Munsif, Patna for eviction of the original defendant on the ground of personal necessity, as contemplated under Section. 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’) in respect of a house decribed in Schedules I and II of the plaint. The original defendant died during the pendency of the suit and the petitioners were substituted as his heirs and legal representatives in his place.
3. Admittedly, the suit premises belonged to late Shri Nageshwar Prasad who inducted the original defendant as tenant in the suit premises. In the year 1949 he gifted the suit premises to one of his sons, namely, Ramesh Prasad, and the original defendant continued as tenant under him.
4. The plaintiffs’ case, in brief, is that plaintiff No. 1 acquired half of the suit premises as detailed in Schedule I by a registered sale deed dated 23-4-91 and plaintiff No. 2 acquired the remaining half of the suit premises as detailed in Schedule II of the plaint by a registered sale deed dated 22-4-1981 from aforesaid Ramesh Prasad. Their names were duly mutated in the records of the State of Bihar and in the Patna Municipal Corporation. They were living outside and as such they authorised their vendor to collect rent from the original defendant as their agent. When they came back sometime in the year 1982 their vendor informed the defendant to pay rent to the plaintiffs but the defendant did not pay the rent. The plaintiffs required the premises reasonably and in good faith for opening shop and business as their family comes from business community and they are also in business. The suit premises is situated in the main market of Baripath in mohalla Bakarganj of Patna town and it has main facility and advantage of the business potentiality. They requested the defendant to vacate the suit premises for their use and occupation but the defendant did not pay any heed, hence the suit.
5. The original defendant contested the suit and filed his written statement. He resisted the prayer for eviction on the ground that the plaintiffs have not purchased the suit premises from Ramesh Prasad, in the alternative, he asserted that the plaintiffs did not acquire valid title by the sale deeds as the same were executed against the provision of the Urban Ceiling Act. Claim of personal necessity was not reasonable and bona fide as the plaintiffs have a shop at main road in Baripath. His further case is that Ramesh Prasad agreed to sell the disputed land and house to him for a sum of Rs, 75,000/- as he was in urgent need of money he took an advance of Rs. 10,501/- from them on 10-12-1979 in presence of several persons. Since there was good relationship between the two families the defendant did not insist for a written document in proof of contract for sale. Ramesh Prasad assured the defendant for executing the sale deed immediately after the disposal of the proceeding under Urban
Ceiling Act, but he postponed the matter on one pretext or the other. Thereafter, the defendant filed T.S. No. 360/82 for specific performance of contract against said Ramcsh Prasad, in the Court of First Subordinate Judge, Patna with respect to the suit premises, who sold the same to the plaintiffs with a view to defeat the rightful claim of the defendant in the aforesaid title suit.
6. The defendant came to this Court in C.R. No. 1857/87 for trial of the present suit with T.S. No. 360 of 1982 filed by them for specific performance of contract. This Court did not allow the said prayer of the defendant but ordered that this case should be heard by the same Court where T.S. No. 360/82 was pending and, accordingly, this suit was transferred to the Court of the Subordinate Judge, where it was numbered as T.S. No. 2/90 and
52/90
the same was disposed of by the impugned judgment.
7. The suit was tried under the summary procedure Under Section 14 of the Act. Both the parties adduced their evidence in support of their respective cases and a number of issues were framed by the trial Court and after considering the materials on the record the trial Court decreed the plaintiffs’ suit for eviction. The findings arrived at by the trial Court are that there is a relationship of landlord and tenant between the parties; the plaintiffs require the suit premises for their personal use and occupation reasonably and in good faith; the suit is maintainable and the defence of the defendants is not tenable in law; the plaintiffs are entitled to an order for eviction even on the basis of their title and the plaintiffs require the entire premises for their own use and occupation and partial eviction will not reasonably satisfy the requirement of the plaintiffs.
8. Learned single Judge while admitting the application at the time of admission ordered the case to be heard by a Division Bench of this Court for an authorative pronouncement on the points involved in the case and that is how this matter has come before us.
9. Learned counsel appearing for the petitioners canvassed the following submissions :--
(i) In absence of specific assertion in the plaint regarding the nature and character of personal necessity, the Court below was not justified in allowing the plaintiffs to lead evidence on the said point and to decree the suit on the ground of personal necessity.
(ii) The plaitiffs being an assignee of the landlord (Ramesh Prasad) the suit for eviction was not maintainable at their instance in absence of an attornment by the tenant in their favour.
(iii) In view of the fact that the question with regard to applicability of Section 53A of the Transfer of Property Act was raised before the Court below, the Court below had no jurisdiction to proceed with the suit.
(iv) The Court below was not justified in granting eviction on the basis of title of the plaintiffs without converting the suit as title suit and directing the plaintiffs to pay ad valorem Court-fee.
(v) The finding of the Court below on the point of partial eviction is not in accordance with law.
(vi) The findings of the Court below are vitiated on account of non-consideration, misconstruction of evidence and erroneous assumption of facts.
10. Learned counsel appearing for the opposite party, on the other hand, contended that the necessary facts with regard to requirement of personal necessity were stated in the pleading and the pleading was not incomplete and defective in the eye of law. Even if the pleading was incomplete and defective, the plaintiffs could not be nonsuited on the ground in view of the fact that during trial the parties knew the case of each other and led evidence in support of their cases and defendants-tenants were not taken by surprise. He also contended that the jurisdiction of the Court to grant eviction is not ousted only because the question of title or plea of part performance as contemplated under Section 53 A of the Transfer of Property Act is raised by the defendants and even in such
cases the Court has jurisdiction to decide such questions incidentally, while deciding the issues, as to whether there is relationship of landlord and tenant between the parties or not. In the present case the Court below has considered the said questions incidentally and not in full-fledged manner and, accordingly the order of eviction does not suffer from any legal defect. As the question of title has been gone into incidentally the plaintiffs were not required to pay the ad valorem court-fee, specially when they did not pray for adecision on the question of title in this case. He has also contended that the Court below has considered all the evidence on the record according to law. There is no question of any error either on the question of law or on facts in the present case. He also contended that in a suit for eviction on the ground of personal necessity, an attornment by the tenant in favour of transferee of the land is not necessary for creating a subsisting tenancy between them. According to him the Court below has considered the question of partial eviction as required by proviso to Section 11(1)(c) of the Act and has rightly come to the conclusion that the entire premises would fulfil the reasonable requirement of the plaintiffs and the partial eviction will not substantially satisfy the reasonable requirement of the plaintiffs.
11. I will consider the submissions raised on behalf of the petitioners in seriatim. Learned counsel while elaborating his first submission contended that the pleading in the present case did not fulfil the requirement of Section 11(1)(c) of the Act. The plaintiffs have not stated in the plaint the nature and character of the business which they wanted to start in the suit premises. In this connection be referred to paragraph 6 of the plaint and submitted that the plaintiffs have not stated in the said paragraph as to the nature and type of the business which they wanted to start. According to him, in absence of the pleading with regard to the nature and character of the business the plaintiffs were not entitled in taw to lead evidence on the said point for the simple reason that any amount of proof without pleading is of no relevance.
12. Pleading is not a statute nor its object
is to punish the parties for the defective pleading. Its object is to intimate the parties about the cases of each other to enable the Court to determine as to what is really an issue between the parties and to narrow down the controversy between the parties. It is well settled that the pleading is to be construed liberally and the Court should see the substance and not the form of the pleading. In the case of Kedar Lal Seal v. Hari Lal Seal, AIR 1952 SC 47, the Supreme Court has observed as follows (at page 52):–
“The Court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side however clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs”.
13. As the object of the pleading is to inform the parties to know the case of each other, a party is generally not allowed to travel beyond the pleading. Lord Viscount Dunedin of the Judicial Committee in the case of Sadique Mohammad Sah v. Mt. Saran, AIR 1930 Privy Council 57 (1) had observed that no amount of evidence can be looked into upon a plea which was never put forward. This rule was considered by the Supreme Court in the case of Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593, and it was held as follows (at page 598):–
“The true scope of this rule is that evidence led in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.
The rule applicable to this class of cases is
that laid down in Rani Chandra Kunwar v. Narpat Singh, 34 Ind App 27 (B). There, the defendants put forward at the time of a trial a contention that the plaintiff had been given away in adoption, and was in consequence not entitled to inherit. No such plea was taken in the written statement nor was any issue framed thereon. Before the Privy Council, the contention was raised on behalf of the plaintiff that in view of the pleadings, the question of adoption was not open to the defendants.
It was held by Lord Atkinson overruling this objection that as both the parties had gone to trial on the questio of adoption, and as the plaintiff had not been taken by surprise, the plea as to adoption was open to the defendants, and indeed, the defendants succeeded on that very issue. This objection must accordingly be overruled.”
The view taken the aforesaid case has been reiterated by the Supreme Court in the case of Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735 : (1966 All LJ 799), in the following words (at page 738) :–
“…..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 issues, 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 that 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.”
Recently, this question was again considered by the Supreme Court in the case of Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, and their Lordships held as follows (at page 1246) :–
“…..It is well settled that in the absence of
pleading, evidence, if any, produced by the
parties cannot be considered. It is also equally
settled that no party should be permitted to
travel beyond its pleading and that all neces
sary and material facts should be pleaded by
the party in support of the case set up by it.
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 legal 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 strict 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 forms, instead the
substance of the pleadings should be consi
dered. Whenever the question about lack of
pleading is raised the enquiry should not be so
much about the form of the pleadings, instead
the Court must fmd out whetrter 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 proceeded to trial on
those issues by producing evidence, in that
event it would not be open toa party to raise
the question of absence of pleadings in
appeal.”
Thus, from the aforesaid decision, the following propositions of law emerge. Generally the parties should not be allowed to travel
beyond their pleading. However pleadings should be construed liberally and the Court should not adopt a pedantic approach. If the substance of the essential material facts for grant of relief is stated in the pleading, the Court should not throw away the same on the ground of defective form or the deficiency in the pleading. Even if the plea is not raised in the pleading even then a claim of the party cannot be defeated, if the parties knew the respective cases of each other on the said plea and led evidence in support of their cases.
14. In a case for eviction under the Act the plaintiffs have to assert the essential material facts to obtain an order of eviction on one or the other grounds mentioned in Section 11 of the Act. In a case for eviction on the ground of personal necessity the plaintiffs have to prove that the building was required reasonably and in good faith by the landlord for his own use and occupation or for the occupation of any person for whose benefit the building is held by the landlord. In the present case the question for determination is as to whether the essential material facts necessary for the grant of relief are stated or not in the plaint and in case it is not stated, as to whether the said deficiency has been cured by adducing evidence during the trial by the plaintiffs and the defendants knew about it. At this stage, it is useful to reproduce the relevant paragraphs of the plaint with a view to appreciate the point raised by the petitioners, they are paras 6, 7 and 8, which are as follows:–
Para 6 : That the plaintiffs acquired the building comprising of Schedule I and Schedule II premises for opening their shop and business as the family comes from the business community and are by profession also business person.
Para 7 : That the building comprising of Schedules I and II premises is reasonably and in good faith required by the plaintiffs for their own use and occupation for opening shop and running the business. And with this intent the defendant was requested to vacate several times but the defendant has taken a defiant attitude and having political backing the defendant is out to push the plaintiffs to legal proceedings hence there is no alternative
but to file this suit for his eviction, pure and simple on the ground of personal necessity.
Para 8: That the building comprising of Schedules 1 and II premises is situate in the main market on the main Bari Path of Patna town in the locality, which has famous Hathwa Market towards its east, famous Kadamkuan Market and road towards its south and being situated in Bakarganj it has further the main facility and advantage of the business potentiality. And the plaintiffs have the better utility for which they acquired the building.
From perusal of the statements made in the aforesaid paragraphs, it is clear that the plaintiffs have asserted that the suit premises is situated on the main Bari Path Road of Patna Town in Bakarganj Mohalla where they have facility and advantage of business potentiality. They belong to the business family and by profession they are also business persons. They have also asserted that they required the premises reasonably and in good faith. In my opinion, all the necessary ingredients for grant of relief are stated in the plaint. Absence of exact nature of business is not a deficiency in the pleading and the statements made in the plaint contain material facts which are required to be proved for an order of eviction on the ground of personal necessity.
15. Even assuming for the sake of argument that non-mentioning of exact nature of business for obtaining an order of eviction on the ground of personal necessity is a serious deficiency in the pleading, the plaintiffs cannot be non-suited in this case for the said deficiency for the reason that the defendants knew the case of the plaintiffs that they required the suit premises for opening a whole sale business of silver ornaments and led evidence in rebuttal. Plaintiff’s witnesses, namely, Ramesh Chandra (P.W.3), Bhusan Kumar Gupta (P.W.4), Anand Kumar Verma (P.W.7), Ram Kumar Gupta (P.W.9) and the plaintiff himself as P. W. 13 were examined on the point of personal necessity of the plaintiffs. They all stated in their evidence that the plaintiffs purchased the suit premises for carrying on a wholesale business of silver
ornaments. The defendants-petitioners cross-examined the witnesses on the said point. On their behalf they examined only one witness, namely, Anand Pati Tripathi (D.W.I). In paragraph 16 of his evidence he stated that the plaintiffs are the rich persons and in the Bakarganj Mohalla (where the suit premises is situated) and Gurhatta Mohalla, Patna City they are carrying on business in gold and silver. He has admitted that the plaintiffs and their family are engaged in business of ornaments. In my opinion, the defendants had knowledge of exact nature of business which the plaintiffs wanted to start and has led evidence on the said point and as such he is not prejudiced in any way and, accordingly, the plaintiffs’ claim cannot be rejected on the ground that the exact nature of business was not stated in the plaint.
16. Learned counsel appearing for the petitioners relied upon some cases in support of his contention. He referred to the case of Shri H.D. Vashishta v. Glaxo Laboratories (P) Ltd., AIR 1979 SC 134, wherein it was held that if materials facts constituting cause of action is not averred in the plaint the suit will fail. There can be no doubt as to the aforesaid legal position, but the said case is not applicable in the present case as, in my opinion, the material facts are stated in the plaint, as stated above. He also relied upon the judgment of a single Judge of this Court in the case of Ramesh Chandra Agrawal v. Bhusan Ram, 1989 PLJR 1188, and submitted that it has been held in that case that if the nature of business is not stated in the plaint the plaintiff’s suit would fail on the ground of lack of necessary pleading. From the facts of the said case it appears that there the plaintiff wanted eviction of the tenant on the ground of personal necessity from the suit premises on two grounds, firstly, he wanted the ground floor of the building for starting business for one of his sons who was sitting idle and, secondly, he wanted first floor for the residential purposes of his grand children who were staying in a rented house at Gaya. This Court upheld the finding of the court below so far as the first floor was concerned. With regard to the requirement of ground floor by the plaintiff, it was submitted that the
plaintiff had not stated the nature of the business nor he stated that he had requisite fund for starting business. Learned single Judge after considering the pleading and the evidence in the said case held that the plaintiff had merely a desire or wish to start a business and there was no need therefor and, accordingly, set aside the impugned order so far as the same related to the decree for eviction of the ground floor of the building in question was concerned. In the said case the learned single Judge found that neither in the pleading nor in the evidence the plaintiff of that case had stated about the nature of business nor stated that he had fund for starting a business and in that context he non-suited the plaintiff and this fact is clear from the following observations (at page 1191):–
“From the facts aforementioned, in my opinion, there cannot be any doubt that the plaintiff has not set out the necessary pleadings for his bona fide and reasonable requirement in his plaint relating to the claim of ground floor at all.
Further from the judgment of the learned court below itself it is evident that both the plaintiff and his son categorically stated that they were not aware as to what sort of business they intend to start. From The evidence of the plaintiff as has been foundry the learned court below also it is apparent that he had no fund for starting a business.
xxxxx
In view of the fact that the plaintiff clearly stated that he or his son was not sure with regard to the nature of the business which they intended to start nor did they have any fund therefor, in my opinion the finding of fact arrived at by the learned court below on the basis of this pleading and evidence must be held to be perverse and does not satisfy the requirement of Section 11(1)(c) of the Act. The plaintiff cannot be said to have proved his reasonable requirement because he had merely stated that he would decide the nature of the business after obtaining loan from the bank. Such type of evidence in my opinion clearly gives rise to the irresistible con-.clusions that the plaintiff did not have
genuine or bona fide requirement. He merely
had a wish to do so contradistinction of his
genuine need.”
Thus, it is clear that the aforesaid case is not an authority that if the nature of the business is not stated in the plaint the plaintiff’s suit on the ground of personal necessity, as provided under Section 11(1)(c) of the Act, would fail. On the other hand, that case is an authority on the point that if the nature of business is neither stated in the pleading nor in the evidence then the plaintiff is not entitled to a decree for eviction on the ground that he requires the premises reasonably and in good faith for running a business. Accordingly, the said case does not support the contention of the petitioners and is not applicable to the facts of the present case.
17. The trial court has considered the evidence adduced by the parties with regard to personal necessity of the plaintiffs of the suit premises for running a wholesale business in ornaments and found that the plaintiffs require the premises reasonably and in good faith for running a business of wholesale by plaintiff No. 2. Learned counsel for the petitioners did not point out any legal infirmity either on the question of law or on the question of fact and, in my opinion, the finding with regard to personal necessity of the plaintiffs is in accordance with law and it does not suffer from any legal infirmity at all.
18. The next question for determination is whether in a case where the landlord transfers his interest, an attornment by the tenant in favour of transferee is necessary to create a relationship of landlord and tenant. In other words, whether the attornment is a condition precedent for creating a relationship of landlord and tenant between the transferee of the lessor and lessee. Attornment is creature of contract. Attornmeht is not a mere agreement in favour of a third party to pay rents but has been defined as an act of the tenant putting one person in the place of another as his landlord. Section 109 of the Transfer of Property Act deals with the rights of lessor’s transferee. It runs as follows: —
“Section 109. If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it, but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him.
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.”
19. From the perusal of the aforesaid section it is clear that after the transfer of lessor’s right in favour of the transferee he gets all the rights and liabilities of the lessor in respect of the subsisting tenancy. This section does not insist that the transfer will take effect only when the tenant attorns. The provisions of this section give a validity to the transfer made by the lessor with regard to his right in favour of the transferee regarding the subsisting tenancy. The question as to whether the attornment is necessary or not to create a relationship of landlord and tenant between the transferee landlord and tenant came for consideration before the Lahore High Court in the case of Daulat Ram v. Haveli Sah, AIR 1939 Lahore 49; wherein it was held as follows:–
“A fresh attornment by the lessee to the landlords assignee is not necessary under the Transfer of Property Act.”
A Bench of Calcutta High Court had occasion to consider the said question in the case of Pulin Behari Shaw v. Lila Dey (ILR (1958) 2 Cal 427); wherein it was held that under the Indian Law a letter of attornment is not necessary to complete the title of the assignee of the reversion. Again the said question was considered by a Bench of Calcutta High Court in the case of M.C. De & Bros. v. Smt. Gita Sen, 1969 (73) CWN 856, wherein it was held as follows:–
“The second point is : the lessor transferring a tenanted house, the tenant does not become the tenant of the transferee, so long as he does not attorn to the transferee as his new landlord by paying rent to such a one amicably, or so long as he is not forced to pay rent to such a one by a decree of the court. It completely beats us how a proposition as this can be contended for, in all seriousness. We find no warrant for such an extravagant proposition which throws the transferee landlord at the mercy of a sitting tenant…..”
“The relationship of landlord and tenant is there between the lessee and the lessor’s assignee. And still the necessity of a fresh attornment, which means acknowledgement by the lessee of the lessor’s assignee as his landlord. It looks like acknowledging then the fact that the sun rises on the east”.
“The title of the assignee is complete. What does that mean? Since the assignment, the assignor goes out, divested of his title, and ceases to be the landlord; comes in the assignee vested with his assignor’s title : the title of the landlord. So, the assignee is the landlord, and still attornment afresh : What sort of a landlord does he become then?”
The said question was considered by a learned single Judge of this Court in the case of Dinesh Kumar P’urbey v. Mahesh Kumar Poddar, 1991 (1) PLJR 650, wherein it was also held that in a case of eviction of the tenant on the ground of personal necessity, an attornment by lessee is not necessary for creating a relationship of landlord and tenant
between the transferee of the landlord and the tenant and observed as follows:–
“In my considered opinion, attornment is not a necessary condition to create landlord tenant relationship between the parties. It has no bearing whatsoever in cases of eviction on the ground of personal necessity. The transfer takes place with all incidents of right, title and interest of the lessor and the transferee is entitled to sue the existing tenant on the ground of personal necessity even if the tenant has not attorned to his tenancy under him.”
20. I am in respectful agreement with the statement of law made in the aforesaid cases. In my opinion, an attornment by lessee to the assignee of lessor is not necessary for creating a subsisting tenancy. The transferee of the lessee steps into the shoes and possess all the rights which the transferor has. The attornment by tenant is not essential to give validity to the transfer made in favour of the transferee and, in that view of the matter, the submission made on behalf of the petitioners; that the suit was not maintainable, as there was no attornment by the tenant, is without any substance and fit to be rejected.
21. The submission made on behalf of the petitioners that as the plea of part performance, as contemplated under Section 53A of the Transfer of Property Act, was raised in the court below, the trial court has no jurisdiction to proceed with the suit, is devoid of any substance for the reasons stated hereinafter, The trial court has considered the aforesaid question in the light of the provisions contained in Section 53A of the Transfer of Property Act. Before a person can claim benefit under the aforesaid section he has to fulfil all the requirements as provided under tne aforesaid section. The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are that the transferor has agreed to transfer on consideration for any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, the transferee has, in part performance of the contract, taken possession of the property or any part thereof,
or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract. If any of the conditions are not fulfilled then the transferee cannot avail the provisions of the aforesaid section. It is well settled that the plea of part performance can be used as a sheild and not as a sword. This section does not confer active title on the transferee in possession, it only imposes a statutory bar on the transferor and confers a right on the transferee to defend his possession. (See AIR 1977 SC 2425, M/s. Technicians Studio Pvt. Ltd. v. Lila Ghosh)
22. In the present case the case of the defendants is that in pursuance of an agreement for sale the defendants paid part of the consideration money to Ramesh Prasad, the owner of the property, and he was allowed to continue in possession as a transferee and not as a tenant from the date of the agreement for sale. Even according to the defendants the aforesaid contract is not in writing signed by the owner Ramesh Prasad or any person on his behalf. The contract in writing is a sine qua non for applicability of the doctrine of part performance. In absence of the same a party cannot be allowed to raise a plea of part performance and the trial court rightly rejected the claim of the defendants-petitioners on this ground. There is another reason also to reject the aforesaid submission made on behalf of the petitioners. In a suit for eviction when the tenant raises a question of title or even a plea of part performance, the jurisdiction of the court to decide the suit for eviction is not ousted. It is well settled that when such a plea is raised by the tenant the court can go into the question incidentally for the purpose of deciding the main question in the suit, i.e., as to whether there is relationship of landlord and tenant between the parties or not. If the court wants to decide the question of title in a full-fledged manner in that case only the court will direct the plaintiffs to pay ad valorem court-fee and then it will decide the question of title. In the present case the court below in paragraphs 17 and 18 of its judgment has considered the plea of part
performance as raised by the defendants incidentally and has rejected the same on two grounds, namely, (1)there was no written contract between the parties and (2) that plea was not tenable on merit.
23. With regard to the submission raised on behalf of the petitioners that the court below was not justified in passing an order of eviction against the petitioners on the basis of the title of the plaintiffs without asking the plaintiffs to pay the ad valorem court-fee is concerned, it must be held that the said submission is without any substance for the simple reason that the court has not gone into the question of title in a full-fledged manner and only incidentally has referred the question of title.
24. The next submission raised on behalf of the petitioners is that the court below did not consider the case of partial eviction according to the proviso to Clause (c) of Subsection (1) of Section 11 of the Act. The relevant portion of Clause (c) of the Act runs 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 is held by the landlord:–
Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass adecree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the building within the meaning of Clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under Section 4.”
The said proviso is mandatory. Even if the plea of partial eviction is not raised by the tenant, the court has to consider the said question subject to the condition that the tenant agrees to partial eviction. While dealing with the case under the said proviso,
the court, at the first instance, has to determine the extent of the premises reasonably required by the landlord. The court has to consider the said question objectively and not on the basis of mere desire or the ipse dixit of the landlord to occupy as much area as he wants. If the requirement of the plaintiffs is determined, then the court has to see as to whether such requirement is reasonable or not and the same would be substantially satisfied by partial eviction or not. In the present case the court below has considered the question of partial eviction in accordance with the requirement of the proviso in paragraph 20 of its judgment. The trial court has accepted the case of the plaintiffs that they needed the suit premises for carrying on wholesale business in ornaments. The trial court also accepted the evidence of the witnesses on the point that for running a wholesale business in ornaments apart from the requirement of a shop, store-rooms, places for staying the customers and for staying the plaintiffs are also required and after taking into consideration the aforesaid requirements it came to the conclusion that the plaintiffs required the premises reasonably and in good faith and his requirement would not substantially be satisfied by the partial eviction of the tenant. In my opinion, the finding on the partial eviction does not suffer from any illegality.
25. During the course of argument, learned counsel appearing for the petitioners submitted that the findings arrived at by the court below are vitiated on account of non-consideration, misconstruction and erroneous assumption of facts. However, he did not point out any such defect in the judgment and as such the judgment of the court below cannot be said to be suffering from any such infirmity and this point is also rejected.
26. After considering the submissions raised on behalf of the petitioners from different angles, I do not find any merit in this application. Accordingly, it is dismissed. However, there shall be no order as to costs.
B. N. Agrawal, J.
27. I agree.