Full Judgment
Prasun Kumar Deb, J.
1. This civil revision petition has been preferred against the judgment and decree dated 22.5.1989 passed by Shri Uma Shankar Prasad Singh, Additional Munsif, 1st Court, Dhanbad, in Title Suit No. 46 of 1985 whereby decree for eviction was passed against the defendants petitioners.
2. The plaintiffs filled the above-mentioned eviction suit under Section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (the Act) on the ground of personal necessity as envisaged under Section
11(1)(c) of the Act. Originally one Shailendra Nath Gupta (hereinafter to be referred to as 'Gupta') was holding the laud as a sub-tenant under Mahtos and that Gupta had inducted the defendants-petitioners as tenant in the suit promises on a rental of Rs. 100/- per month. Gupta was being paid all rent by the defendants-petitioners. In the year 1984, Gupta sold the land and the houses to the plaintiffs-opposite parties under registered sale deed dated 20.11.1984 and information to that effect was also given to the defendants-petitioners.
3. The case of the plaintiffs-opposite parties is that plaintiff No. 1 Druga Pada Chatterjee was a Railway Guard who retired long back on 30.11.1981. As he has no house of his own, he purchased the suit house and premises for his own personal occupation. It is also a case of the plaintiff No. 1 that his son plaintiff No. 2 Kartik Chandra Chatterjee had no accommodation and was residing with another relative in the quarter of Bharat Cooking Coal Limited and the relative has also been asked to vacate the same by his employer-authority. It also appears that the said Durga Pada Chatterjee, plaintiff No. 1, has vast family having several children. As the defendants-petitioners did no vacate the suit house on demand made by the plaintiffs, this suit was filed for eviction on the ground of bonafide necessity.
4. The defendants by filling their written statement challenged the ownership of the plaintiffs-opposite parties in the suit house as according to them, their vendor Gupta was only a dar-raiyat and he had no authority to sell the property as dar-raiyati right is neither heritable nor transferable. Their further case is that under the Bihar and Reforms (fixation of Ceiling Area & Acquisition of Surplus Land) Act (hereinafter to be referred to as 'the Ceiling Act'). The defendants being the purchaser of the contiguous plot of land demanded the said plot of land on the ground of pre-emption and although their case was allowed by the Lower Revenue Authorities but the Board of Revenue has rejected their claim and the decision of the Board of Revenue is now pending before the Patna Bench of this Court. He has also contested regarding the bonafide necessity as alleged in the plaint.
5. After hearing both the parties and giving opportunity of adducing evidence to the parties, the learned court below came to the finding that the sale in favour of the plaintiffs by the vendor Gupta was proper and that as there was relationship of landlord and tenant between the defendants-petitioners and Gupta, the same became existing between the plaintiffs and the defendants-petitioners when they have stepped into the shoes of Gupta on the said purchase in the year 1984, Other points regarding the decisions of the Revenue Authorities under the Ceiling Act were said to be extraneous for decision in the ejectment suit.
6. Mr. T.K. Das, learned Counsel appearing for and on behalf of the defendants-petitioners argued streneuously that dar raiyati rights not being heritable or transferable could not have been transferred by Gupta and by such transfer, the plaintiffs did not get any right over the suit properties. It is true that dar raiyati right may not be heritable or transferable if the same has no nexus with the occupation of the land in question and if there was no custom prevailed at the locality. It is true that the sale was made in presence of the original raiyat Mahtos. There was no objection raised from the raiyats and for this purpose, I find that the learned court below has rightly held that the transfer in favour of the plaintiffs was proper and valid. Regarding land ceiling matter, practically there is no nexus with this ejectment suit. Because, the defendant who happens to be the owner of the contiguous plot have claimed the suit plot where the suit house situated as a pre-emptor. He has not claimed right over the same by virtue of any other right. It was rightly been held that those are extraneuous matter to be considered between landlord and tenant where the transfer in favour of the plaintiffs was proper when there was relationship between the vendor of the plaintiffs and the defendants-petitioners as landlord and tenant then. the plaintiffs have got every right to proceed with the ejectment suit under the Act.
7. Regarding bonafide necessity, I also find that there was sufficient evidence on record to the effect that there was necessity of the plaintiffs to occupy the suit house for their own accommodation. The plaintiffs-opposite party No. 1 has already retired long ago and is residing in a rented house while his one of the married son was to reside with another relation as there was dearth of accommodation in the rented house. The bonafide necessity has been well discussed in the impugned judgment and on scrutiny also, I find that the plaintiffs have got bonafide necessity to have the suit house vacated for their own accommodation, but then there is not an iota of finding regarding the partial eviction as contemplated under proviso to Section 1 1
(1)(c) of the Act. It is true that even if there is no specific pleading from the side of the defendant, it is the bounden duty of the court to examine that proposition on the consent being given from the side of the tentant.
8. It has been argued straneuously by Mr. R.N. Sahay, appearing for and on behalf of the plaintiffs-opposite parties that the discussions made in the judgment regarding bonafide necessity reveal that when the plaintiffs have got a vast family, the accommodation may not be available by partial eviction of the defendants from the suit house. I have scrutinised the schedule of the decree which does not show the measurement of the building and size of it and in such a position, sitting in a revisional court, it is not possible to find out whether partial eviction can be possible in the present circumstances of the case.
9. In view of the above position, this civil revision petition is allowed to the limited extent of decision regarding partial eviction as contemplated under Section
11(1)(c) proviso of the Act. The decree of ejectment is set aside and the, matter is sent back to the Additional Munsif, 1st court, Dhanbad, to decide on the point of partial eviction after giving opportunity of adducing further evidence to both the parties. As the suit is a long pending one and the plaintiffs opposite parties being the landlord are in precarious position having no accommodation, this matter should be decided by the learned Additional Munsif, 1st Court, Dhanbad, on priority basis within two months next from the date of receipt of the original records along with this order. Office is hereby directed to send down the records immediately to the court concerned. However, in the circumstances of the case, there will be no order as to costs.