JUDGMENT
M.Y. Eqbal, J.
1. This miscellaneous appeal is directed against the judgment and order dated 22.7.1995 passed by the District Judge, Sahabganj in Title (Eviction) Appeal No. 5 of 1990 by which while setting aside the judgment and decree dated 22.8.1990 passed by 2nd Subordinate Judge, Sahabganj in Title Suit No. 21 of 1987, remanded the case to the learned Subordinate Judge for hearing and passing judgment afresh.
2. The plaintiffs-appellants filed Title Suit No. 21 of 1987 in the Court of learned Subordinate Judge, Sahabganj against the defendants-respondents for decree of eviction on the ground of non-payment of rent as also on the ground of bonafide personal necessity. According to plaintiffs-appellants the suit promises being one room known as “Good luck Tailoring House” within Sahabganj Municipality bearing holding No. 101 was under the occupation of defendant-respondent No. 1 who carry on business of tailoring shop. The suit premises originally belonged to father of the plaintiffs-appellants and after his death the entire building was partitioned amicably by virtue of family arrangement whereby the suit premises has fallen in the share of plaintiff No. 1. There plaintiffs/further case was that suit premises was given on rent to defendant No. 1 by the father of the plaintiffs at monthly rent of Rs. 90/-. The defendant No. 1 paid rent of these it premises upto 31.12.1985 and thereafter defaulted to pay the rent of he same from 1.1.1986 and there by made himself liable for eviction. The plaintiffs further alleged that the room under the occupation of plaintiff No. 1 was too small to accommodate family requirement of plaintiff No. 1. Plaintiff No. 1 having now been transferred to Sabour in the District of Sahebganj where, he goes daily by train and return in the evening. The plaintiff No. 1 thus stays in the building at Sahebganj with his family members and others are difficulties in accommodating the family members and other relations of the plaintiffs. The children of the plaintiffs are also facing difficulties hi their education because of non-availability of accommodation. The plaintiff No. 1, therefore, sought eviction on this ground also.
3. The defendants-respondents appeared in the suit filed their written statement, wherein besides taxing usual pleas of non-joinder of necessary party it was stated that there had been no partitioned of the suit premises by any family arrangement after the death of Niyamat Hussain, father of the plaintiffs who died leaving behind his widow, five sons and two daughters. According to defendants the suit premises was still in jointness. The defendants further alleged that at the request of Niyamat Hussain the original landlord the defendant paid him a sum of Rs. 10000/- as advance and shifted his tailoring house to the western shop on its vacation by the said Tanks Mian in the year 1974. The defendants claimed adjustment of the said amount and thereby after adjustment the defendants cannot be said to be a defaulter. The defendants further denied and disputed the allegation of bona fide personal necessity.
4. Learned Subordinate Judge, Sahebganj after hearing the parties decreed the suit in terms of judgment and decree dated 22.8.1990. Aggrieved by the said judgment and decree he defendants preferred an appeal before the District Judge, Sahebganj being Title Appeal No. 5 of 1990. Learned lower appellate court by the impugned judgment and order remanded the matter to the trial court holding that the trial court omitted to consider pros and cons of Ext. A.
5. Hence this appeal by the plaintiff-appellants.
6. Mr. Pushkar Narain Sahi learned Counsel appearing on behalf of the appellants submitted that the order of remand passed by the learned lower appellate court is erroneous and without jurisdiction. It was submitted that the learned appellate court wrongly held that the trial court omitted to consider the document filed the defendant i.e. Ext-A. It was contended that learned lower appellate court consisted error of law by given much importance to Ext-A for which the judgment and decree could not be set aside.
7. On the other hand, Mr. Rajni Jha learned Counsel appearing on behalf of the defendants-respondents, in support of the impugned judgment and order of remand, submitted that learned lower appellate court rightly remanded the case to the trial court for considering Ext-A inasmuch as the trial court failed to consider the said document.
8. Before appreciating the rival contention of the parties it is necessary to look into the judgment of the trial court. Learned trial court framed the following issues:
1. Is the suit, as framed, maintainable?
2. Is the suit bad for non-joinder of necessary party?
3. Have the plaintiffs got any cause of action for the suit against the defendants?
4. Does the relationship of landlord and tenant exist between the plaintiffs and the defendants?
5. Are the defendants defaulter under the meaning of law and are they liable to be evicted as such?
6. Is the suit premises required by the plaintiffs for then4 personal bonafide use?
7. Are the plaintiffs entitled to arrears of rent as claimed by them?
8. Are the plaintiffs entitled to any other relief of reliefs as claimed by them?
9. While deciding the issues learned trial court has considered the admitted document–Ext. 2 which is a petition files by the defendant No. 1 before the sub-divisional officer-cum-Rent controller under the Bihar Building Control Act in which the defendants have mentioned the name of the plaintiffs as landlord of the suit premises. The trial court further considered the evidence of the mother of the plaintiffs who supported the case of family partition after the death of her husband and admitted that the suit premises fell in the share of the plaintiff. These two issues were accordingly decided against the plaintiff. While deciding issue Nos. 3, 4 and 6 learned trial court considered all the evidence adduced by the parties including Ext-A. While considering Ext-A learned trial court observed as follows:
From the evidence of defendant it appears that Ext-A. a Panchanama was executed in 1980 but that was not earlier produced in court. It was produced after the close of the evidence of plaintiffs. Hence the plaintiffs had not chances of rebuttal. However, the said document was taken into exhibit with objection on the basis of the alleged Panchanama (Ext-A). The learned Counsel of the defendant argued with full emphasis that there was never any partition of the suit property as has been alleged in Ext-A. It was argued further that the plaintiffs mother Bibi Safian admits Panchaiti. She has stated that before Panchati her eldest son accreted the rent but after partition her second son i.e. plaintiff No. 1 used to accept rent of the suit premises. It was further argued that the plaintiffs have not proved any proper of partition and as such the evidence of Bibi Safian is a white lie. But I find that the evidence of the witnesses of the plaintiff is very clear on this point they have clearly stated that the partition was oral and not written. In my opinion, because it was a family arrangement between the co-sharers there was no chance of any written paper coming to existence. The defendants counsel submitted there stress that it was imperative on the part of the plaintiffs to examine other co-shares on the point of partition on but the plaintiffs did not do so. But this contention of the defendants counsel appears to be without any merit when I find that the two plaintiffs are themselves co-sharer and the mother Bibi Safian is also a co-sharer. As I have discussed in the forgoing paragraph that the eldest brother Md. Isha was on emmical issue with the plaintiffs, as has been alleged by defendants. The other two brother were not examined by plaintiffs it did not adversely affect the merit of the plaintiffs of case because in para 11 of the written statement the defendants have admitted in no many clear words that they filed the petition before the House Controller which has been marked Ext-2. In the said petition the defendants has mentioned the names of the land owners of the suit premises, obviously the relationship of landlord and tenant and the fact of partition stands well proved. As the suit premises where the property of plaintiff No. 1 who having been transferred from Ranchi to Sabour stays with his family at Sahebganj every night facing accomodatic problem is obviously in mind need of the suit premises for his personal use.
10. Learned trail court found that the defendant defaulted in payment of rent and also that the plaintiffs need was bound fide and decreed the suit.
11. Learned lower appellate court while appreciating the case of the defendants that the plaintiff No. 1 is not only the landlord but the suit premises is joint with other co-sharers has held the learned trial court omitted to consider the pros and cons Ext-A. On this ground alone learned lower appellant court set aside the judgment and decree of the trail court and remanded the matter back to the trial court for hearing afresh and passing judgment after dealing with Ext-A.
12. There was no dispute that the suit premises originally belonged to late Niymat Hussain who inducted defendant-respondent m tenant in the suit premises. It was also not disputed that Niymat Hussain died leaving behind his widow Bibi Safian and five sons and two daughters. According to plaintiffs-appellants by writ of amicable family arrangement the suit premises fell in their share which facts was supported by Bibi Safian.
13. The main ground of attack was that the suit was bid non-joinder of other co-sharers of the plaintiffs, plaintiff alone could not maintain the stilt as there had been no partition and in support the suit as thereof the defendants relied upon Ext-A Panchaiti. Even assuming for a moment that there had been no partition the question arises as to whether the plaintiff being one of the co-sharer can maintain the suit for eviction of the defendant tenant from the suit premises. The question has became res integra inasmuch as this question has already been decided be a Full Ben#. of this Court in the case of Sharfuddin and Ors. v. Bibi Khatija and Anr. reported 10, 1987 PLJR 978 : 1988 BLJR 53, where their Lordship held as under:
The theory of a. joint decree for possession in favour of all the co-owners being passed and no eviction under Section 11(1)(d) being possible is patently without merit. Hence we have to consider the matter within the frame work of the rent Act. It is impermissible and illogical to travel beyond the clear and detained statutory provision of the Section 11 of the 1947 Act. Reference to the general civil law of landlord and tenant after the super imposition of the statutory rent law thereon is not only uncalled for but, in my view1, would be wholly misleading. It is well known that, unless the provisions are in pari materia precedent with the regard to one provision can possibly have no relevance to the oilier. Here in the general civil law of landlord and tenant and the remedies open thereunder are now poles apart from the statutory imposition’ of conditions under the Rent Act, 1947 and the bar on eviction imposed within the narrow parameter of Section 11 thereof. Calling in the aid of concept of a joint decree in favour of all co-owners in civil law in this wholly irrelevant to the issue. Therefore the judgments sought to be relied upon by learned Counsel for the appellant in this context, namely (1) I.L.R. 10 Allahabad 166 (PC) Zainual-Abdin Khan v. Muhammad Asagar Ali Khan, (ii) I.L.R. 35 Calcutta 807 Gopal Ram Mohuri v. Dhakeshwar Prashad Narain Singh (iii) AIR 1934 P.C. 58, Baraboni Coal Concern v. Gokulananda (iv) AIR 1942 Patna 391 Braj Kishore Prasad Narain Singh v. Mojidul Brahman and Anr. (v) Dr. Amar Prasad Gupta v. Arun Kumar Shaw, have not the least relevance and are entirely wide of the mark.
14. From the perusal of the judgment of the lower appellant court it appears that learned lower appellate court wrongly impressed by the submission of the defendant that the so called Panchyati Ext -A was not considered by the trial court. In my opinion, there is error of record committed by the learned lower appellate court in holding that the trail court omitted to consider the pros and cons of Ext-A. Learned lower appellate court has erred in law, in remanding the matter to the trial court on the ground mentioned therein, learned lower appellate court further committed illegally in not given it findings on other issues. Be that as it may, the judgment and order of remand passed by the lower appellate court cannot be sustain in law in view of the decision of the Full Bench of this Court (supra). I, therefore, allow this appeal, set aside the judgment and order of the learned lower appellate court and further direct the lower appellate court to hear the appeal and as a fresh judgment by giving finding on all the issues involved in the suit. There shall be no order as to costs.