JUDGMENT
R.M. Prasad, J.
1. This revision application is directed against the order dated 13.6.94 passed in Eviction Appeal No. 1/1985/1/1993 whereby the learned Addl. District Judge Vth Court at East Ghamparan set aside the order dated 17.10.1985 passed by the Sub-Judge, Motihari, in Eviction Suit No. 5 of 1984 and allowed the appeal and decreed the plaintiff’s suit for eviction with a direction to vacate the suit premises within a period of two months.
2. The plaintiff-opposite party filed eviction suit No. 5 of 1984 against the defendant petitioner for his eviction from the said premises on the ground of personal necessity. The defendant filed written statement contesting the claim of the plaintiff. He denied the relationship of landlord and tenant between the parties and according to him, the plaintiff did not have the bona fide personal necessity of the suit premises.
3. Both the parties in support of their respective cases led evidence and the trial Court dismissed the suit after recording finding that the plaintiff failed to prove relationship of landlord and tenant between the parties. On the ground of personal necessity the trial Court recorded a finding that the plaintiff has succeeded in proving the same. Against the said judgment the plaintiff I filed appeal and the lower appellate Court reversed the judgment and decree passed by the trial Court after recording a finding that the plaintiff succeeded in proving the relationship of landlord and tenant between the parties. The lower appellate Court affirmed the finding of the trial Court regarding personal necessity. Against the said judgment the defendant filed second appeal in this Court bearing No. 399 of 1987 which was finally heard by a Division Bench and the matter was remitted back to the lower appellate Court for consideration of the question as to whether the space where two rooms are under construction could be utilised by the plaintiff for his passage or not. It was further held by the Division Bench that if the lower appellate Court comes to the conclusion that the plaintiff can use the said space for passage, then it goes without saying that the plaintiff’s case of personal necessity has got to fail. The judgment and decree were accordingly set aside and the lower appellate Court was directed to dispose of the matter in accordance with law in the light of the said direction, whereafter the impugned order has been passed.
4. Mr. Chatterji, learned Senior Counsel appearing for the petitioner has submitted that the suit for eviction was filed by the plaintiff-opposite party on the ground that they require the suit premises for using the same as a passage after demolishing the structure for going to Re-rolling mill belonging to them. According to him, a Division Bench of this Court in the case of Ratan Lal v. Sheo Kumar Manalia, reported in 1996 (1) PLJR 216 held that the prayer of eviction cannot be granted under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’), where the landlord requires the premises for the purpose of opening of passage for going to another portion of the building. Thus, according to him, the suit of the plaintiff shall fail on this ground alone that under law the plaintiff cannot he held to be in bonafide need of suit premises for personal use.
5. It is true that in the said case the Division Bench has held that a decree for eviction cannot be granted for such personal necessity. The said Division Bench decision, however, came only on 8.12.95, whereas, the matter in this case was agitated before this Court in the Second Appeal much prior to the said Division Bench decision, in which no such objection was ever raised by the petitioner However, the matter was finally heard by the Division Bench and was remitted hack to the lower appellate Court for consideration of the case on the limited question as to whether the space where two rooms are under construction can be used for passage or not and in case the appellate Court comes to the conclusion that the plaintiff can use the space for passage it will go without saying that the plaintiff’s case of personal necessity has got to fail. Under such circumstances, in my opinions the Division Bench judgment referred to by Mr. Chatterji will he of no avail to the petitioner.
6. Further, learned Counsel far the petitioner submitted that in view of the finding recorded by the lower appellate Court in para 13 of the judgment that the five rooms have been – constructed by the plaintiff in order to defeat the claim of defendant No. 1 (Petitioner herein) and that the plaintiff cannot take advantage of the same, the claim of the plaintiff’s in the suit is not sustainable and the suit is tit to he dismissed on this ground alone. Learned Counsel for the opposite party has submitted that according to the plaintiffs case the premises through which passage is to be used to enter his re-rolling mill has been allotted m the share of his father in partition and on consideration of entire facts and circumstances this Court remitted hack the matter to the lower appellate Court on the aforesaid limited question. As such, according to him, the lower appellate Court was not justified in recording the finding referred to by the learned Counsel for the petitioner. I find substance in the submission of the learned Counsel for the Opposite Party. After the remand of the matter the lower appellate Court was only require to consider whether the two rooms under construction could be used for passage or not and in this regard I find that in para 15 of the impugned order, the lower appellate Court has specifically recorded the finding that the said space cannot be used for the passage for going to the re-rolling mill. In my opinion, after recording the said finding there was no justification for the lower appellate Court to have recorded the finding which has been referred to by Mr. Chatterji.
7. In the last, Mr. Chatterji, learned Senior Counsel for the petitioner has submitted that it is well established that the personal necessity must subsist on the date of the decree. But from the report of the Pleader Commissioner, appointed at the instance of the plaintiff it is clear that in any event personal necessity does not exist any more. According to him, the Pleader Commissioner has recorded the finding that there is no re-rolling mill of the plaintiff near the suit premises and thus, the alleged necessity has disappeared.
8. On the other hand, learned Counsel for the opposite party has submitted that there is no such finding recorded by the Pleader Commissioner. From the report of the Pleader Commissioner. From the report of the Pleader Commissioner I find that it is true that in the beginning he has mentioned that there is no re-rolling mill of the plaintiff near the suit premises, but while discussing further he stated as follows:
…Plaintiff however showed me an old premises situated in the South Eastern side of his compound wherein according to him Re-Rolling Mill was running. This premises is partly covered by tinshed and partly uncovered, I found machinery parts and broken wooden pieces in the covered portion. No mill is running in this portion. The machinery parts are lying defunct for some year past In the uncovered portion there is wild growth of shrubs and plants of various kinds….
9. It is submitted by Mr. Prasad that in fact, because of absence of passage the re-rolling mill is lying idle and not functioning.
10. Under such circumstances, I do not find any reason to interfere with the impugned order and the revision application is thus, dismissed, but without costs.