Posted On by &filed under High Court, Patna High Court.


Patna High Court
Bishwanath Maheshwari … vs Satya Narayan Poddar on 7 September, 2000
Equivalent citations: 2001 (1) BLJR 321
Author: A Prasad
Bench: A Prasad


JUDGMENT

A.K. Prasad, J.

1. This Second Appeal was brought by the original tenant, who died during the pendency of this appeal, and his legal representatives have been substituted on record, against whom the order of partial eviction from a portion of the suit premises, which is a room, used as kitchen, was passed by the lower appellate Court.

2. The respondent/landlord brought Title (Election) Suit No. 20 of 1986 in the Court of the Munsif, Chaibasa, for evicting the defendant/original tenant (Bishwanath Maheshwari) from the western portion of the first floor of the suit premises, which is a part of Municipal Holding No. 184 (old) (new 8/99) situate at mohalla Tambakupatti within Chaibasa Municipal Ward No. 8, which is fully described in Schedule to the plaint on the ground of his personal bonafide requirement. Broadly speaking, the case of the respondent/landlord is that his family consist of his son, two daughters, his wife mainly and himself. The ground floor of the building is used for his tobacco business. He is in occupation of one living room, Pooja room and a Verandah in the eastern portion of the first floor of the house, which is inadequate for the accommodation of his family. That apart, the guests and relatives use to visit the plaintiff/respondent/landlord at intervals. On the 2nd floor, there is a small room which is used by him for storing fuel and sundry materials. The defendant/tenant resides, on rent, in the western portion of the first floor, which comprises two living rooms, a kitchen room, a verandah, a latrine, and a balcony. The plaintiff/landlord alleged that in spite of requests, the defendant did not vacate the premises. Hence, the necessity of the suit.

The original tenant resisted the suit for eviction, denying the bonafide requirement of the landlord for personal use/occupation. His stand was that the family of the landlord consists of himself, a minor son, a minor daughter (who was subsequently married in 1988) and his mother. One of his daughters has already been married earlier and lives at her matrimonial home. The wife of the landlord does not live with him. According to him, in the first floor, the plaintiff is in occupation of two bed rooms, two verandas, besides one kitchen, latrine, bath rooms, and balcony. Besides, the entire ground floor, the two rooms on the 2nd floor are in exclusive use and possession of the plaintiff/landlord. The accommodation available and in occupation of the plaintiff/landlord is more than sufficient for the accommodation of the small family of the plaintiff, which comprises three members.

The relationship of landlord and tenant between the parties is not in dispute.

3. At the trial, both the parties led evidence, oral and documentary. The trial Court dismissed the suit for eviction brought by the landlord/plaintiff on the ground of bonafide personal requirement. It held that the family members residing in the house of the plaintiff were four in number. The stay of his younger married daughter is temporary in nature and a room on the ground floor marked ‘D’ in the sketch map by the Pleader Commissioner, while a room on the 2nd floor could be comfortable used by the plaintiff/landlord as living rooms. In other words, the trial Court held that the suit premises was not required bonafide by the plaintiff for personal occupation and accordingly, the suit was dismissed.

Being aggrieved by the verdict of the trial Court, the appellant/landlord preferred Eviction Appeal No. 12 of 1990 which was allowed in part, on contest, and the suit was decreed for partial eviction of the tenant/respondent from the part of the suit premises, which is a room 9′.4″ * 9′.2″ used as kitchen. The lower appellate Court held that the plaintiff/landlord, his wife, who mostly resides at his village home Chaksaho, within the district of Samastipur, often visits him, his son, his mother and his youngest married daughter reside with him in the house in suit and his youngest son-in-law Sasi Poddar (P.W. 4) often visits his matrimonial home and the total number of the family members of the plaintiff/appellant, those residing permanently or making frequent visit, is six, out of which two are casual visitors. The lower appellate Court did not believe the evidence led by the plaintiff/appellant that Sasikant Poddar (P.W. 4) his youngest son-in-law is his Ghar Jamai. The lower appellate Court further held that on the building, the plaintiff runs business in tobacco with godown to stock tobacco and it would be hazardous for the family members to use the office-cum-guest room or the room behind it, which is used as a godown; that the appellant is in occupation of one bed room, a big verandah with is balcony, a Pooja room, a kitchen and a toilet, which is in the first floor on the eastern side with separate staircase leading to the 2nd floor on which there are two rooms, one of which is vacant and there are two water tanks in the other room and the vacant room could not be used permanently as dwelling room for want of a toilet/bathroom on the 2nd floor and it may be used in exigencies as a temporary bed room, and disagreeing with the finding of the Court below, the lower appellate Court held that the landlord was in bonafide requirement of one bed room on the first floor and accordingly ordered for partial eviction of the tenant from the room in the suit premises, which is used as kitchen, which is inter-connected with the door from the side of the landlord.

4. Being aggrieved by the order of partial eviction, from the suit premises, the tenant/original defendant came up in 2nd appeal before this Court, who died during the pendency of the appeal and his heirs have been substituted on the record.

5. It was submitted at the Bar that the landlord/respondent has not appealed against the verdict of the lower appellate Court regarding parties eviction.

6. The following substantial questions of law have been formulated at the time of admission in the appeal for determination:

A. Whether the learned lower appellate Court took into consideration irrelevant matters in decreeing the suit and based the judgment on conjectures and surmises?

B. Whether the learned lower appellate Court has taken into consideration the evidence, beyond the pleadings of the parities?

C. Whether cogent reasonings have been given by the lower appellate Court reversing the findings of the trial Court?

7. It is pleaded in the plaint that the family of the plaintiff/landlord consist of himself, his wife, his mother, a son and two daughters. It has come in the evidence of the plaintiff (P.W. 1) that his both the daughters have been married of, but he has explained that his youngest daughter has been married in the year 1986 with Sasi Poddar (P.W. 4), but she stays with him, as her second marriage (Durgagaman) has not taken place. He has made a development in the evidence that P.W. 4 (Sasi Poddar) his second son-in-law, is his GharJamai. P.W. 4 (Sasikant Poddar) is the lone issue of his parents. It has come in the evidence of P.W. 3 (Shyamnarain Poddar) that the eldest daughter of the plaintiff was married 8-10 years ago and her Sasural is at village Sunawli in Katihar district. He has also stated that the youngest daughter of the plaintiff is living with her father, since Duragaman has not taken place. It is admitted fact that the plaintiff has married Sudha Devi after the death of his first wife some time in the year 1984. It is true that the plaintiff has admitted in his evidence that after the marriage his second wife lived for three months with him. But he has explained that she mostly resides at his village home Chaksaho in Samastipur district because there is want of adequate accomodation for residence in the house in suit.

The defendant (D.W. 1) has denied that the second wife ever lives/lived with the plaintiff.

The trial Court held that there are only three members in the family of the plaintiff, who permanently reside in the house of the plaintiff and the stay of his youngest daughter in his house is temporary in nature. The lower appellate Court, on the other hand, on appreciation of evidence has arrived at the finding that apart from the plaintiff, his wife, his mother, his son and the second wife of the plaintiff who often visits the plaintiff/husband, form permanent members of the family of the plaintiff, while P.W. 4, the son-in-law, often visits his house because after the marriage, for want of Duragaman his wife is staying at her parental home. The lower appellate Court rightly drew the inference that as the marriage between the plaintiff and his wife subsists, she has access to him and as a member of the family, her visit at intervals is quite natural. The residence of his youngest daughter at her parental home may be temporary and even after the marriage, the daughter unless the relation is strained, are expected to make visits at intervals to the parental home.

8. Now the crucial joint which arises for consideration is: whether the plaintiff is bonafide need on bonafide requirement of the accommodation, for which the lower appellate Court, differing with the findings of the trial Court has ordered for partial eviction of the defendant/tenant from the premises in suit. The bonafide need of a landlord should be genuine, honest and conceived in good faith. The desire to “requirement” must have objective element of the “need” which can be decided only by taking all the relevant circumstances into consideration. It is admitted fact that the plaintiff runs tobacco business on the ground floor. The report of the pleader commissioner with the sketch-map, which is part of the record shows that on the ground floor, the plaintiff runs his tobacco business and there is go-down in two rooms, and there is the ‘Gaddi’ behind which there is office-cum-guest room. The lower appellate Court differing with the trial Court has rightly held that the ground floor cannot be used as a dwelling house, as it would be hazardous for health, nor the plaintiff can be forced to wind up or minimise his business and privacy of the family members has to be maintained.

The report of the pleader commissioner shows that in the first floor, the plaintiff/ landlord has one bed room and there is one room on the 2nd floor. The lower appellate Court, on discussion and appreciation of evidence has held that one room on the 2nd floor can be temporarily utilised as a bed room. The tenant/ original defendant (D.W. 1) admitted in his evidence that in the tenanted premises in the first floor he is in occupation of two bed rooms, which are inter-connected and a kitchen. The report of the Pleader Commissioner shows that the tenanted premises comprises of two inter-connected bed rooms, a kitchen, whose door is closed from the side of the plaintiff, a verandah, a balcony, a bath room and a toilet.

9. Mr. Merathia, learned Counsel for the appellant, has assailed the impugned judgment of the lower appellate Court mainly on the ground that the availability of one living room on the 2nd floor is sufficient to meet the requirement of the landlord and the order of partial eviction from the kitchen/a room by the lower appellate Court is bad in law. In the year 1986, the son of the plaintiff was aged 10-11 years. By now he has become major and in the age group of 24-25 years. He needs a separate living room. The plaintiff with his wife would bonafide need a separate living room for himself and go is the case with the mother of the plaintiff. The married daughters, whenever they visit the parental home, also need to be accomodated, though temporarily. The two living rooms as rightly pointed out by the lower appellate Court would not be sufficient to cater all the needs of the plaintiff and his family.

On appreciation of the evidence and the facts and circumstances of the case, the lower appellate Court rightly ordered for partial eviction of the tenant from the room which is used as kitchen and measures 9′.4″ * 9′.2″, which is inter-connected with the door from the side of the plaintiff.

10. I find that the lower appellate Court has not passed the impugned judgment on conjectures or surmises, or on the evidence beyond the pleadings of the parties and cogent reasons have been given by the lower appellate Court while reversing the findings of the trial Court and in ordering for the trial eviction from the tenanted premises.

It is not a case where the lower appellate Court has overlooked a very material part of the evidence, bearing on the question. That apart, in the circumstances, where the finding of the lower appellate Court on the ground of bonafide requirement for personal occupation, the lower appellate Court decides such issue on appreciation of evidence and has not overlooked any important matter having bearing on the merit of the case, this Court cannot interfere by re-appreciating the evidence in exercise of the second appellate jurisdiction ref: : Ram Prasad Razak v. Nand Kumar Brothers and Anr.

11. The lower appellate Court has missed to fix the fair rent proportionately, on partial eviction, for the tenanted portion, which would remain in occupation of the tenant. It is admitted that the rent of the whole tenanted premises is Rs. 150/ – per month. Since the appellants/tenants have been ordered to vacate the room in the tenanted premises, the proportionate rent for the portion which would continue in occupation of the tenants is fixed at Rs. 110/- (one hundred ten) per month.

12. In the result, this appeal is dismissed with the above directions. In the circumstances of the case, there shall be no order as to costs.


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