JUDGMENT
P.K. Deb, J.
1. Both these matters have been heard analogously as the parties are almost the same and the matter of dispute also relates to the same suit premises.
2. The respondent No. 3, Jagannath Singh of Second Appeal No. 3 of 1997 (R) filed Title Suit No. 3 of 1989 against the appellant Umesh Chandra Tripathy of the Second Appeal for eviction of the defendant from the premises detailed and described in Schedule-A of the plaint on the ground of personal necessity under Section 14 read with Section 11(1) (c) of the B.B.C. Act, 1982. The plaintiff, Jagannath Singh’s case in brief is that he became the owner of the suit premises by virtue of a deed of assignment executed by Smt. Binita Mathur on 13.10.1988 and also as per paper transaction of the leasehold right made on 3/5.12.1988 by Bokaro Steel Ltd., Bokaro Steel City in his name. Further case of the plaintiff is that Smt. Shanta Grover was the first assignee and she relinquished her right in favour of Smt. Binita Mathur and the defendant was inducted as a tenant in the suit premises by said Smt. Shanta Grover at the rental of Rs. 500/- per month in the shop and the premises attached to the shop, which has been described fully in Schedule-A of the plaint. The plaintiff is residing with his family on first floor of the premises and the shop of Madhu Dresses. He has got his entrance from the back portion of the suit premises through a Stair-case. He served notice of attornment on the defendant, since the right of lease and interest was transferred in his favour by Smt. Binita Mathur by aforesaid deed of assignment. The original landlord. Smt. Shanta Grover also served notice on him about the transfer but inspite of notice, defendant did not pay rent to him from November, 1988 to February, 1989. Further case of the plaintiff is that he requires the suit premises for his own use and occupation for starting a trade business as he wants to divert his business of contract to trading due to old age and due to physical disability as he is suffering from Diabetese.
3. The defendant Umesh Chandra Tripathy after taking leave of the Court as required under Section 14 of the Act filed Written Statement and his case is that the suit premises situates on plot No. E/18 of City Centre of Bokaro Steel City, Sector-IV and the plot was originally allotted to one Dr. S.N. Mathur by Bokaro Steel Ltd. on 25.4.1975 through a registered deed of lease. The said Dr. Mathur was unable to construct a building as envisaged in the registered deed of lease so he invited Smt. Shanta Grover w/o of Baldeo Raj Grover who entered into a partnership agreement to construct shop and buildings and for letting out the same on rent to tenants. As per the partnership agreement, Dr. Mathur had only 1 per cent share while Mrs. Shanta Grover was having 99 per cent share. It was also stipulated that in the event of death of Dr. Mathur the assets and properties of the partnership firm shall vest on Smt. Shanta Grover and heirs/successors/legal representatives of Dr. Mathur shall have no right, interest or title in the firm’s property and Shanta Grover would be treated as sole proprietor of the firm. It was further stipulated that in the event of dissolution of the firm, Smt. hanta Grover shall acquire full right, title and interest over the all assets and properties of the firm and Dr. S.N. Mathur had executed an irrevocable general power of attorney in favour of Shanta Grover on 6.7.1979. As per terms of that Power of Attorney, Smt. Shanta Grover became entitled to realise rent solely from the tenants in the building. After completion of ground floor of the building. Shanta Grover inducted the defendant, Umesh Chandra Tripathy on a monthly rental of Rs. 425/- per month. According to the defendant, Umesh Chandra Tripathy, he paid Rs. 15000/- to Smt. Shanta Grover as an advance towards rent out of which only Rs. 5000/- could be adjusted towards the payment of rent. Then the rent was enhanced by Mrs. Shanta Grover to Rs. 500/- in the month of April, 1980. According to the defendant, he paid her rent till August 1982 and then deposited the rent at the rate of Rs. 500/- per month in her Bank account with the United Bank of India, City Centre, Bokaro Steel City. But, even, then Shanta Grover demanded enhancement of rent to the extent of Rs. 700/- per month and when the defendant Umesh Chandra Tripathy refused in such proposal of enhancement of rent, the started creating troubles and hardship to compel him to vacate the premises and with this view in end, she brought the plaintiff on the first floor of the suit house in the month of May, 1988 and with that very purpose to create trouble in the peaceful possession of the defendant the plaintiff managed to obtain a deed of assignment in his favour on 13.10.1988 from one Binita Mathur claiming herself to be the widow, heir and successor of late Dr. S.N. Mathur. The deed of assignment was actually executed by Baldeo Raj Grover, the husband of Smt. Shanta Grover after obtaining a deed of relinquishment from his wife Shanta Grover in favour of Binita Mathur and both these relinquishment and deed of assignment were executed on the same date i.e., 30.10.1988. According to the defendant, Umesh Chandra Tripathy, in view of the agreement of partnership between Dr. S.N. Mathur and Smt. Shanta Grover and the irrevocable power of attorney executed by Dr.Mathur in her favour, no other can claim to be the owner of the house except that of Smt. Shanta Grover. Therefore, as per defence case, Binita Mathur, being the heir/ successor of Dr. S.N. Mathur had not acquired any right or interest in the property and as such by the deed of assignment by Binita Mathur in favour of plaintiff had not transferred any title or interest in the suit premises in favour of plaintiff and as such the suit is not maintainable under Section 14 of the BBC Act.
4. The defendant had filed a petition before the House Rent Controller, Chas making Smt. Shanta Grover and the plaintiff as parties for direction to deposit rent in Treasury with all the averments made above. But the H.R.C. case filed by the defendant was rejected and he was asked to pay rent to the plaintiff, Jagannath Singh. The defendant then filed a suit being Title Suit No. 30 of 1989 for declaration that he is a monthly tenant under Shanta Grover and the plaintiff, Jagannath Singh who was the defendant No. 3 in that suit should be restrained from interfering with the possession of the plaintiff. Umesh Chandra Tripathy in that suit. It was also contended that M/s. Madhu Dresses adjoining shop premises in the said building is a partnership firm and Mrs. Shanta Grover is a partner to that shop and as such according to Umesh Chandra Tripathy the plaintiff, even he has been assigned all rights from Shanta Grover, he can very well take possession of M/s. Madhu Dresses and start his business.
5. During the pendency of this Eviction suit, the plaintiff i.e. Jagannath Singh applied for stay of further proceedings of the suit of the defendant i.e., Title Suit No. 30 of 1989 and the Munsif stayed the further proceedings of that suit by his order dated 15.2.1990. Against which the defendant filed Civil Revision application before this Court. The defendant also prayed for consolidating his Title Suit No. 30 of 1989 with the Eviction suit before the Munsif, but the Munsif rejected that prayer and the defendant i.e. Umesh Chandra Tripathy had also filed another Civil Revision application before this Court.
6. Both these Civil Revision applications were heard together and allowed by a single Judge of this Court with a direction that both the suits be tried one after another and the judgments should be passed in both the suits simultaneously. Accordingly, learned Munsif tried and heard both the suits and decreed Title Suit No. 3 of 1989 i.e., this Eviction suit by his judgment and decree dated 13.7.1992. The plaintiff filed Civil Revision No. 283 of 1992 (R) before this Court against the judgment and decree passed by the Munsif and a single Judge of this Court in Civil Revision No. 283 of 1992 (R) after hearing the parties held that the relationship of landlord and tenant between the parties had been established and that the plaintiff required the suit premises reasonably and in good faith, but finding that the learned Munsif did not consider the factum of partial eviction as contemplated under Section 11 of the Act, remanded the matter to the Munsif again for consideration of partial eviction, if would satisfy the needs of the plaintiff and parties were allowed to adduce further evidence for that purpose only.
7. After such remand to the trial Court with the direction of enquiry for partial eviction the defendant prayed for amendment of his written statement on the following averment:
The suit premises formerly known as Madhu Dresses has come under effective control, use and enjoyment of the plaintiff by reason of the same having been acquired by its erstwhile tenant N.C. Gqrasia and is presently under possession of the plaintiff which can very well be ascertained by making local investigation.
The learned Munsif rejected such prayer of amendment and the defendant-petitioner filed Civil Revision application being Civil Revision No. 148 of 1995 (R) before this Court. After hearing the parties, this Bench had allowed the Civil Revision petition and the amendment was allowed with the following observation:
1 find that the proposed amendment is directly in nexus with the cause of action of the suit and the same can be allowed but the factum in issue may only be applied or adjudicated or used for the restricted purpose of deciding the matter of partial eviction under Section 11(1)(c) of the
Act, but this will never be opened for the purpose of deciding the point of personal necessity afresh which has already been decided and upheld by the High Court.
8. On the basis of such amendment being allowed, a new issue was framed in the suit on 16.9,1995 in the following manner:
Whether the requirement of the plaintiff is satisfied on getting possession of part of the premises which was erstwhile in possession of Madhu Dresses and vacated by him during proceeding of the case situated in the same house premises.
9. It must be mentioned here that the suit of tenant i.e., Title Suit No. 30 of 1989 was also dismissed by the Munsif and the defendant filed Title Appeal No. 45 of 1992 against the judgment and decree passed by the Munsif in that suit. The said Title Appeal was before the District Judge, Bokaro. The tenant Umesh Chandra Tripathy preferred an application under Section 24 C.P.C. before the District Judge, Bokaro for transfer of Title (Eviction) Suit to the same Court where the Title Appeal No. 45 of 1992 was pending for decision but the said prayer was rejected by the District Judge, hence M.J.C. 14 of 1995 (R) was preferred before this Court. That M.J.C. case was also disposed of by this Bench after hearing the parties. Considering the nature of the disputes pending between the parties, it was ordered by this Court that the Eviction suit should also be transferred to the same Court where the Title Appeal No. 45 of 1992 was pending and shall hear both the cases one after another and then pass judgments simultaneously so that there may not be any contrary findings. Hence, both matters were heard by the 2nd Additional District Judge. The Eviction decree was confirmed after consideration of the partial eviction and also dismissing the appeal confirming the judgment and decree passed by the Munsif in Title Suit No. 30 of 1989 filed by the defendant-appellant.
10. In the Eviction suit, after remand plaintiff’s side examined one B.P. Singh as PW-1, but as he was not produced for cross-examination, hence his evidence was expunged. The plaintiff himself was also re-examined. According to the plaintiff, he did not take any steps for eviction of Madhu Dresses because rent of premises was being regularly paid and that there was no dispute. He denied the defence version that he took over possession of Madhu Dresses in the year 1990. He also admitted that N.C. Gorasia has not opened his shop after the year 1990 and kept the same under lock and key, but he had never vacated the same. He did not open the shop as there was loan of the bank against him.
11. On the other hand, the defendant-tenant has examined two witnesses and also examined himself again. DW-1 Jagdeo Singh is having a shop in the City Centre at Sector-IV, B.S. City. He stated that N.C. Gorasia vacated shop premises in March, 1990 and after coming to know of this fact, from N.C. Gorasia, he approached the plaintiff for getting the same on rent but the plaintiff told him that due to litigation he was unable to let out the premises to him. He further stated that premises of Madhu dresses was being used by the plaintiff for his contract business. D.W. 2, Janardan Ojha is a retired watchman of Bank of India at City Centre. He stated that he was told by Mr. Gorasia that he was contemplating to close his business and return to his native place and that the plaintiff Jagannath Singh had paid Gorasia Rs. 65000/- for furniture and stock of the shop. According to this witness, the plaintiff was utilising that premises of Madhu Dresses since 1993. The defendant stated that his need would not be satisfied by partial partition of the suit premises. He stated that plaintiff was utilising the premises of Madhu Dresses since 1993 as N.C. Gorasia vacated the premises in the year 1990. The plaintiff has also stated that his need would not be satisfied by partial eviction of the suit premises.
11. After consideration of the evidence on record, the learned Court below found that both the parties had stated that partial eviction of the premises would not be satisfactory to either of the parties and when Madhu Dresses had not been in possession of the plaintiff, the question of partial eviction cannot be considered. It has also been observed by the learned Court below that the burden was on the defendant to prove that Madhu Dresses came in effective control of the plaintiff since 1993 and the best witness for the purpose was Mr.
N.C. Gorasia who is alleged to have vacated the premises since 1990 but N.C. Gorasia had not been produced from the side of the defendant. Thus, the eviction decree passed earlier had been confirmed as the partial eviction cannot be considered in the circumstances of the case.
12. As regards Title Suit No. 30 of 1989, it could be found that the defendant-tenant after the eviction suit was filed, had preferred a suit for declaration that he is a tenant under Shanta Grover and the deeds of Assignment and deeds of relinquishment, as stated earlier, were not proper and by that title of the leasehold right of Shanta Grover had never been transferred to Jagannath Singh and hence the suit for declaration of his right as a tenant under Shanta Grover and that Jagannath Singh had no right to interfere over his peaceful possession, had been dismissed by the Munsif on consideration of the facts and circumstance and on the consideration of the documents filed by the parties. That finding of the Munsif has been confirmed by appellate Court in Title Appeal No. 45 of 1992 and then the Second Appeal No. 3 of 1997 (R) has been filed.
13. At the stage of hearing under Order XLI, Rule 11 C.P.C. both the matters i.e., S.A. No. 3 of 1997 (R) and the Civil Revision have been heard together for the purpose of disposal. Practically, the factual aspects of the matter remained the same. The tenant’s plea by way of Written Statement in the Eviction suit was the statement in the plaint filed by him in Title Suit No. 30 of 1989 and the same Court decided both the matters against the tenant defendant.
14. First of all, let me take up Second Appeal No. 3 of 1997 (R) for the purpose of discussion.
15. Mr. N.K. Prasad, appearing on behalf of the appellant i.e., the tenant Umesh Chandra Tripathy assailed the judgment on three grounds, namely:
(i) The deed of relinquishment Ext. 7 executed by Shanta Grover in favour of Binita Mathur was not a legally valid document as there was no consideration in the deed and as such the same can operate only as a deed of gift in favour of Binita Mathur and when admittedly the donee Binita Mathur was not present at Bokaro on the relevant date, it can be presumed that she had not accepted the relinquishment/the gift and in absence of her acceptance that gift deed cannot operate as a conveyance in favour of Binita Mathur and in that view of the matter when Binita Mathur had assigned the right of the lease hold land in favour of Jagannath Singh on the same day. The said assignment had also not created any interest or title over the suit property in favour of defendant No. 3, Jagannath Singh.
(ii) The property being actually leased out by Bokaro Steel Ltd. in favour of Dr. Mathur and when Dr. Mathur died leaving behind his widow, Binita Mathur and a son Sanjay Mathur then when Sanjay Mathur had not joined in the deed of assignment in favour of defendant No. 3 the entire property cannot be vested in favour of defendant No. 3, Jagannath Singh.
(iii) The power of attorney executed by Binita Mathur in favour of Jagannath Singh has not been produced in the Court and as such the written statement filed by Jagannath Singh for and on behalf of Binita Mathur cannot be accepted as her written statement.
15. At the very beginning, it must be first of all taken into consideration how far the appellant (plaintiff) can challenge the deeds between two persons of which he was never a party and as such being a third party, as has been stated for and on behalf of the respondents, Mr. ameshwar Prasad, he cannot have any right to challenge the deed of assignment or the deed of relinquishment.
16. It has been admitted by Mr. N.K. Prasad that the plaintiff when claimed to be a tenant under Shanta Grover, he has no right or he is not entitled under the law to challenge the title of his landlord. But on the same breath, it has been stated that when the right of the landlord has been transferred to another person then the validity of such transfer can be challenged.
In the plaint, the deed of assignment in favour of defendant No, 3 by Shanta Grover has been challenged on the ground that there was no consideration of it but practically deed of assignment was not made by Shanta Grover but by Binita Mathur and in the written statement filed, it appears that all the defendants have admitted in equivocal terms that whatever right Dr. S.N. Mathur had over the lease-hold property the same had been transferred/assigned to the defendant No. 3, Jagannath Singh and deeds, i.e., the deed of relinquishment, assignment etc. have been made as per instructions and directions of the Bokaro Steel Ltd., who is admittedly the owner of the land. The Bokaro Steel Ltd. the owner had accepted the defendant No. 3 as its lessee on the basis of the deeds of assignment in his favour when the owner i.e. the lesser had admitted the defendant No. 3 as his lessee then there remains no scope of the monthly tenant on a portion of the house constructed over the leasehold land, have any authority to challenge such transfer in favour of defendant No. 3.
17. Moreover, it appears that Shanta Grover after transfer had informed the plaintiff about her assignment to defendant No. 3 and defendant No. 3 had also informed the plaintiff for attornment but the plaintiff without paying rent to the defendant No. 3 made a petition before the House Rent Controller for giving him permission to deposit the rent in Treasury as there was dispute regarding the ownership amongst Shanta Grover and Jagannath Singh, The same was contested and the House Rent Controller in HRC Case No. 22 of 1988 held that defendant No. 3 Jagannath Singh was entitled to receive rent of the suit premises and the plaintiff’s prayer to deposit rent in Treasury was rejected vide Order dated 11.7.1989.
It must also be mentioned here that after the defendant No. 3, Jagannath Singh filed the Eviction suit then and then only plaintiff-Umesh Chandra Tripathy being the plaintiff has come up with the suit for declaration of his tenancy under Shanta Grover. When Shanta Grover has already transferred her right to Jagannath Singh via Binita Mathur, there was no scope of the tenant to challenge such transfer being a third party and when there is no rift between the ex-landlord and the transferee, the tenant cannot come in between to challenge such transfer/assignment.
18. However, even though that point has not been discussed in very many words in the judgments of both the Courts but the fact finding Courts gave a concurrent finding to the effect that the transfer in favour of Jagannath Singh was proper and as such the plaintiff’s claim that he remained a tenant under Shanta Grover had been rejected and the suit and the appeal was dismissed accordingly. However, on merit, as raised by Mr. N.K. Prasad, Sr. Advocate, appearing on behalf of the appellant,
I am going to discuss those points also.
19. The legal implication that a deed of relinquishment, when there is no consideration passed then the said deed of relinquishment is definitely should be construed as a deed of gift. On this point, there is no objection from the side of Mr. Kameshwar Prasad for and on behalf of the respondents. The legal position is thus admitted and when it is a deed of gift then the formalities required for the purpose of implementation of the deed of gift, such as there must be two attesting witnesses and there is acceptance by the donee should be thus it is found that in the deed of relinquishment there are two witnesses attesting the deed. The only grievance of Mr. N.K. Prasad is that there is nothing on the record or in the deed itself that Binita Mathur had accepted as a donee of such relinquishment/gift.
20. It must be mentioned here that on the very date of making of the deed, of relinquishment the receiver i.e., the donee Binita Mathur on the same very date had assigned her right which she received by deed of relinquishment in favour of Jagannath Singh. Thus, the acceptance cannot be said to be not there but by implication of law, acceptance may be construed, but Mr. N.K. Prasad’s submission is that when Binita Mathur was not present on the date of gift then there cannot be any acceptance of the gift.
21. On the other hand, Mr Kameshwar Prasad’s submission is that the deed of gift was accepted by Baldeo Raj Grover, the Attorney of Binita Mathur and as an Attorney he had again assigned the right in favour of defendant No. 3. On going through the deed of assignment, it could be found that there is an averment regarding acceptance of relinquished right of Shanta Grover by Binita Mathur. Thus, by implication it cannot be said that there was no acceptance. Moreover, nowhere in the plaint or in evidence, it has ever been challenged by the plaintiff regarding the validity of deed of relinquishment. Only challenge was with respect of the deed of assignment in favour of the defendant No. 3. When there is no pleading regarding challenge of the deed of relinquishment the plaintiff-appellant is estopped from challenging such legality.
22. Mr. N.K. Prasad submitted that even if there is no challenge, if a deed on the basis of which defendant relies of his, title is invalid in the eye of law, the same can be argued even without pleadings.
23. I have already held that being a third party plaintiff had little scope to challenge a deed between two other parties, when such deed had been admitted by the doner and donee in unequivocal terms. In that view of the matter, unless there is legal flaw on the deed itself it cannot be challenged on the technical grounds from the side of the plaintiff. Moreover, this point has been raised only in the Second Appeal and that was not the case, not even an iota of challenge in respect of deed of relinquishment by the appellant.
24. Mr. N.K. Prasad, in support of his submission regarding invalidity of the deed of relinquishment in the form of deed of gift, has referred to Commissioner of Income Tax v. Jaggilal
Kamiapat also Gangadhara Iyer and Ors. v. Kulathu Iyer Sankara
Iyer 1952 Travancore-Cochin 47. On the principle, it has not been denied as stated earlier by Mr. Kameshwar Prasad regarding deed of relinquishment without consideration being in the form of deed of gift, the execution of the deed has not been denied. Only question has been raised regarding its acceptance.
25. I have already mentioned that acceptance has already been there as per the averments made in the deed of assignment, Ext. 8 by Binita Mathur through her Attorney, Baldeo Raj Grover and this deed of relinquishment has never been questioned in the pleadings.
26. Mr. Kameshwar Prasad has referred to Kairum Bibi v. Mariaum Bibi and Ors. . That was a case of gift between the Muslims and it was held that a stranger cannot challenge the validity of the gift when the parties i.e., the donee and doner had never questioned its validity. About the admission of deed of relinquishment, it is the contention of Mr. Kameshwar Prasad that when pleading is silent regarding the deed of relinquishment, although the same was known to the plaintiff then such silence should be construed as an admission and once it is admitted the same cannot be questioned in the proceedings. He has referred to Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayaka Gosavi and
Ors. .
So, on this point as raised from the side of the appellant, there is no force.
27. It may also be referred to Ruruha Singh v. Achul Singh and Ors. AIR 1961 SC 1097, to the effect that what has not been pleaded the same cannot be taken in Second Appeal. Regarding question of title of the landlord by a tenant as contemplated under Section 109 of the T.P. Act, various judgments have been referred to by Mr. Kameshwar Prasad. It is now settled principle that tenant has got no right to challenge the title of the landlord and even not of the assignee or the transferee, when such transfer has not been questioned by any of the parties interested over the title. Moreover, when the same objections have been raised from the side of the plaintiff and have objected to by defendant No. 3 the matter was set at rest in the abovementioned H.R.C. case.
28. It must also be mentioned here that the relationship of the landlord and tenant between the plaintiff and the defendant No. 3 has already been accepted finally by this Court in Civil Revision No. 283 of 1992 (R) arising out of Eviction suit as already discussed above by specific wordings in the following manner:
Thus, considering the materials available on the record and the submissions made by the parties herein, it is held that the findings of the trial Court that there was relationship of landlord and tenant between the parties and that the plaintiff required the suit premises reasonably and in good faith do not suffer from any legal infirmity and as such they upheld.
and such finding had not been challenged in any higher forum and thus the finding remains binding on the parties and as such the plaintiff as debarred from questioning the relationship of defendant No. 3 with him in the Second Appeal again.
29. About non-joinder of Sanjay Mathur alongwith Binita Mathur in assigning the leasehold right to the defendant No. 3, it is the contention of Mr. N.K. Prasad that admittedly the lands wherein the suit premises situated were settled by Bokaro Steel Ltd. with Dr. S.N. Mathur and on his death the leasehold right must have devolved not only on his wife, Binita Mathur alone but on his son Sanjay Mathur also and as such when only Binita Mathur had assigned the properties to the defendant No. 3, Jagannath Singh and not by Sanjay Mathur also then the title of the defendant No. 3 remained defective and he could not be the absolute owner of the leasehold right.
30. This point was never raised by the plaintiff either in his plaint or before the original Court. That point was raised only in the First Appeal and that point has been considered by the 1st Appellate Court and arrived at the finding that such point has got no force.
31. The deed of assignment had been challenged by the plaintiff only on the ground of non-consideration and not of leaving out of Sanjay Mathur’s interest. In between facts must be taken into consideration. It was true that Dr. S.N. Mathur was given lease of the plot then S.N. Mathur entered into a partnership with Smt. Shanta Grover and that averments of the partnership had been admitted by the plaintiff in the plaint and in his evidence. As per that agreement on death of Dr. S.N. Mathur, Shanta Grover would be the sole owner of the building wherein the suit premises is situated and so Shanta Grover alone had inducted the plaintiff as a tenant. It was also the term that heirs of Dr. Mathur would have no claim over the property on his death except that of Shanta Grover. Then the question of joining of Sanjay Mathur in the deed of assignment does not arise at all. Shanta Grover as per that agreement had got the absolute right on the death of Dr. S.N. Mathur and she had relinquished that right in favour of Binita Mathur and then Binita Mathur assigned the same to defendant No. 3. Sanjay Mathur does not come in the picture at all and rightly that plea was not taken by the plaintiff in his plaint or in the evidence itself. As a ‘drowing man catches a straw’ the plaintiff is trying to take this plea in the appellate stage without even any averment in his plaint or in his evidence. Whatever right Shanta Grover had the same had been assigned to the defendant No. 3 and the defendant No. 3 has been accepted as a lessee by the owner Bokaro Steel Ltd. That was a matter between the Bokaro Steel Ltd. and the original lease holder Dr. Mathur, but when Bokaro Steel Ltd. has already accepted the assignment in favour of defendant No. 3 Jagannath Singh, the plaintiff being a third party has got no authority to challenge the same. Hence, this point has also got no force.
32. The power of attorney executed by Binita Mathur in favour of Jagannath Singh has not been produced before the Court below. That was not challenged in the plaint that Binita Mathur had never given any power to Jagannath Singh. During the course of hearing of this Second Appeal that registered power of attorney was shown to this Court. Even if that had not. been brought on record, when the same had not been challenged specifically and when Binita Mathur had not challenged the same then there is no scope of the plaintiff to challenge the same. Moreover, the written statement filed by Binita Mathur was signed by her Attorney, the defendant No. 3. Even if it is stated that such written statement is not proper, then also only the written statement part field by Binita Mathur cannot be taken into consideration and that would not affect the result of the findings by both the Courts below when only the assignment by Shanta Grover in favour of defendant No. 3 was challenged in the plaint.
33. Thus, I find that the points raised by the plaintiff-appellant in this Second Appeal do not bear any substantial question of law and when no substantial question of law is involved and the points of law involved had already been discussed, having no force, I do not find this Second Appeal to be a fit case for admission under Order XLI, Rule 11 C.P.C. and hence the same is rejected.
34. Now, coming to Civil Revision No. 564 of 1996 (R), except the partial eviction as ordered by this Court earlier, there is nothing to consider more than this.
35. According to the tenant-petitioner while the Civil Revision was pending before this Court on earlier occasion the landlord Jagannath Singh came in effective control of Madhu Dresses and as such he can very well start his trading business in the premises of Madhu Dresses which is of the same size as that of the business room of the petitioner-tenant. That Madhu Dresses had left and the said premises had come into the possession of the landlord since 1990 was averred on earlier occasion also, but the same was rejected by the original Court and also by the revisional Court. Now, only question remains whether that had come to the effective control of the landlord or not. When it could not be established that N.C. Gorasia who had started the business of Madhu Dresses had left his premises and the same came into the control of the plaintiff, could not be proved on earlier occasion and also after the remand order being passed by the Revisional Court then there remains no scope to enter into the same by this Court again and again. The evidence in this respect has been referred to by Mr. P.K, Prasad, for and on behalf of the tenant-petitioner after remand and also before remand about the possession in respect of Madhu Dresses.
36. On consideration of the whole evidence, it could be found that the premises of Madhu Dresses was not being possessed by its owner physically but the same remained under lock and key. According to the landlord, the same remained in possession of the tenant. Whether there was surrender or not, N.C. Gorasia would have been the best person to prove that fact and when that plea has been taken from the side of the tenant, it was the bounden duty of the tenant to produce him to prove that factum and the learned Court below had rightly held that adverse inference must be drawn against the tenant-petitioner and not against the landlord-Opposite Party. I do not find any irregularity or illegality being committed by the learned Court below in making that inference.
37. Mr. P.K. Prasad, during the course of argument has suggested that his client, although not agreeable before the Court below about the partial eviction and the same was the view given by the landlord also for the purpose of his trading business, still he gave the offer that his client i.e., the tenant is ready to surrender a portion of his tenanted premises i.e., the back side room of the Madhu Dresses so that the landlord can effectively start his business by taking two rooms i.e., the room of Madhu Dresses and the proposed surrendered room of the defendant-tenant. But the said proposal has not been accepted by the landlord, as according to the landlord, the premises of Madhu Dresses had never been in his possession and he cannot do his trading business on the back side room of Madhu Dresses, having no frontage towards the main road.
38. It further appears that the tenant-petitioner was the person who with illegal greed started questioning the title of the lease-hold of the land and made objections etc. and he was the person who had rolled the ball in motion. Now, he cannot have a sympathetic consideration in his favour on the ground of live and let live as suggested by Mr. P.K. Prasad. Advocate Commissioner’s report does not give any light for the purpose of partial eviction unless it could be shown conclusively that Madhu Dresses premises are in possession of the landlord Opposite Party. Hence, I do not find any lacuna in holding of the learned Court below that there is no scope of partial eviction in the circumstances of the case, hence the revision petition has got no force and as such the same is also rejected.