M.Y. Eqbal, J.
1. This civil revision application under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 has been filed by the defendant petitioner/tenant against the judgment and decree dated 31st, July, 1995, passed by Munsif, Jamshedpur decreeing eviction suit No. 3/92 filed by the plaintiff/opposite party for the eviction of the defendant petitioner from the suit promises on the ground of personal necessity.
2. The plaintiff's case, inter alia, is that the shop premises is in occupation of defendant/petitioner as monthly tenant on a rent of Rs. 300/- per month. Further the case of the plaintiff is that after the death of his mother the house property including the tenanted premises have been partitioned by and between the plaintiff and his brother Hari Om Trehan by virtue of registered deed of partition. As per the partition northern portion of the house fell in the share of the plaintiff and the remaining portions fell in the share of his brother. It has further been pleaded that the shop premises in occupation of the defendant pleaded that the shop premises in occupation of the defendant fell into the share of the plaintiff and the defendant has been paying rent to the plaintiff. The plaintiff was running business of Hosiery goods since long before the partition and was residing with his family in a portion of the building which fell in the share of his brother and as such the plaintiff continued in that portion as a tenant after partition. Further case of the plaintiff is that the four shop rooms which fell in the share of the plaintiff are in occupation of different tenants including the defendant and the remaining two rooms are used by him for residential purpose. The plaintiff further pleaded that he has got three grown up sons but due to lack of accommodation two of his sons are not residing with the plaintiff and the only youngest son is residing with him. The plaintiff, therefore, needs the shop premises in occupation of the tenant for his personal use and occupation for running his business of Hosiery goods.
3. The defendant/petitioner contested the suit by filing written statement denying and disputing the allegations made in the plaint. The defendant denied the case of personal necessity and made out a case that the plaintiff has raised two storied Puce building on the eastern side of the suit premises with stair case. Further it has been averred that in fact the plaintiff has got other shop rooms besides two storied residential house with kitchen and latrine and out of the six rooms only four shop rooms are now in occupation of the tenant and two other shop rooms had fallen vacant but the plaintiff does not like to carry on business due to his old age. The defendant further case was that the residential house of the plaintiff is just behind the two shop rooms presently lying vacant and as a matter of fact when the defendant did not fulfill the demand of the plaintiff for the increase of rent and payment of Rs. 10,000/- as an advance the instant suit was filed.
4. The Court below on the basis of pleadings of the parties framed the following issues:
(i) Has the plaintiff any cause of action and right to sue the defendant?
(ii) Is the suit in its present form maintainable?
(iii) Is the suit bad for non-joinder of parties?
(iv) Is the suit barred under Bihar Building Control Act?
(v) Whether the suit premises is reasonably and in good faith required by the plaintiff for his own business?
(vi) Is the plaintiff entitled to the relief claimed for?
(vii) To what relief or reliefs the plaintiff is entitled?
The learned Court below decided all these issues in favour of the plaintiff land-lord and came to a finding that the plaintiff requires the suit premisses reasonably and in good faith and accordingly decreed the suit.
5. Mr. Devi Prasad, Senior Counsel appearing for the defendant petitioner assailed the impugned judgment and decree passed by the Court below as being illegal and contrary to facts and evidence on record. The learned Counsel submitted that the plea of personal necessity as made out by the plaintiff is mala fide for the reason that the plaintiff suppressed the fact in the plaint that he has constructed double storied building in the eastern portion of the tenanted premises where there is sufficient residential accommodation for the plaintiff and his sons. The learned Counsel submitted that the two storied residential house and six shops are lying vacant which is evident from the evidence of the witnesses. The learned Counsel referred the evidence of the plaintiff who was examined as P. W. 4 and submitted that from the plaintiff's evidence itself it would appear that the case of personal .necessity is concocted for the purpose of evicting the defendant. The learned Counsel then submitted that the judgment and decree cannot be sustained in law for the reason that the Court below neither framed any issue nor gave any positive findings on the question of partial eviction. The learned Counsel in this connection relied upon a decision of the Supreme Court in the case of Krishna Murari Prasad v. Mitar Singh 1994 BBCJ (S.C.) 37.
6. On the other hand Mr. N.K. Prasad, learned Counsel appearing for the plaintiff/opposite party in support of the finding arrived at by the Court below drawn my attention to the relevant portion of the judgment and submitted that on the date when the suit was instituted by the plaintiff the second storied of the building was not in existence and, therefore, it cannot be said that the plaintiff requirement was not bona fide. Learned Counsel further submitted that in the second storied the plaintiffs son has been residing with his family and still plaintiff needs the suit premises for the purpose of carrying on business.
7. For better appreciation of the submissions made by the learned Counsels it would be proper to first look into the pleadings of the parties. The plaintiff has pleaded his case of personal necessity in paragraphs 8, 10 and 14 of the plaint which reads as under:
Paragraph-8:
That the portion which fell in the share of the plaintiff now have got four shop rooms, two residential rooms and a small kitchen, All these four shop rooms are in occupation of tenants including the defendant.
Paragraph-10:
That the plaintiff has got three grown up sons namely, (i) Bimal Kumar, (ii) Nawal Kumar and (iii) Sunil Kumar. Due to lack of accommodation Bimal Kumar is residing at New Baradwari in a rented house. He is carrying on transport business.
Nawal Kumar is residing at Rajendra Nagar with his uncle. Sunil Kumar only is residing with the plaintiff in one small room with his family. He is also carrying on transport and contract business.
Paragraph-14:
That the suit premises is facing main road and adjacent to the f passage of the plaintiff's house and is convenient place for the business of the plaintiff. The plaintiff, therefore, the suit premises reasonably and in good faith for his own business of Hosiery goods as he has no place for his own business. The plaintiff requires the shop room as well as the attached room for store/godown purposs. The entire suit premises is necessary for the plaintiff.
Denying the facts pleaded in the plaint the defendant in his written statement stated in paragraphs 12, 14 and 19 are as under:
Paragraph-12:
That the statements made in para 8 of the plaint are absolutely false. The plaintiff has got six shop rooms besides his two storied residential house with kitchen and latrine. Out of the six shop rooms only four shop rooms are now in occupation of the tenants and two other shop rooms have fallen vacant and as the plaintiff does not like to carry on any business specially due to his old age he is not trying to utilize the said shops.
The plaintiff since 1987 has increased the rents of all the four tenants to Rs. 300/- per month. The said three tenants are, Ramawatar Agarwalla, (2) Banwari Lal Agarwalla and (3) Hasu Mahato whose rents have also been increased to Rs. 300/- per month.
Paragraph-14:
That as regards the statements made in para 10 of the plaint it is submitted that plaintiff with an ulterior motive has made out the story of lack of accommodation for his sons. The eldest son is residing at Baradwari with his mother-in-law since after his marriage as her mother-in-law has got no other issue save and except one daughter, married to Bimla Kumar. The mother-in-law has also got business at Calcutta. Bimal Kumar is also carrying transport business keeping several trucks of his own.
The second son Nawal Kumar has left his father's house since long and has been residing with his uncle where he is also carrying on transport business keeping two trucks of his own. The third son, Sunil Kumar alone resides with his father and he is also carrying on transport business und he also owns two trucks, for such business.
Under the circumstances non-of the sons of the plaintiff requires the suit premises or any other premises to carry on any business in the shop premises.
Paragraph-19:
That as regards the statements made in para 15 of the plaint it is submitted that plaintiff never approached the defendant nor the defendant had any occasion to refuse to the plaintiff on 1.2.92 or any other date to vacate suit premises.
That in or about the month of October, 1991 the plaintiff demanded a sum of Rs. 10,000/- as an advance towards the cost of constructions of his two stoned building on the suit plot but as the defendant did not agree to pay the same the defendant out of grudge has filed the present suit after refusing to accept the rents. But as the rents are regularly sent by money order the plaintiff could not make the defendant a defaulter and as such with ail sorts of false allegations he has filed the present suit on false ground of personal necessity.
8. From the aforesaid pleadings it is evident that the plaintiff has not stated anything about the two storied residential house with kitchen and latrine which is said to be in his occupation. The question, therefore, falls for consideration is whether at the time of filing of the suit the plaintiff has any accommodation in the second storied building or the plaintiff has only residential accommodation in the two shop rooms lying in the ground floor. In this connection the evidence of plaintiff is worth to be considered who was examined as P. W. 4. In paragraph 40 of his deposition he has admitted that the land was purchased in the name of his mother but construction was made by his father. It was further deposed that his father during his life time constructed first floor in the portion of ground floor of the building. The plaintiff further stated that in between the first floor and second floor of the building there is a passage for his use. In paragraph 62 of his deposition he has very clearly stated that he has not let out the second storey of the building to any person rather his son Sunil Kumar resides in the upper floor of the building where there is kitchen and bath room also. It appears that the learned Court below in paragraph 12 of the judgment has considered the evidence of P. W. 4 made in paragraphs 61 and 62 of his evidence where he has stated that he has constructed double storied building above the shops of the shape held by defendant as well as other tenants Ramotar, Hasu and Banwari. It further appears that a pleader Commissioner was also appointed at the instance of the plaintiff for making inspection of the building. The report of the pleader Commissioner has been proved and marked as Exhibit-3 while the pleader Commissioner was examined as P. W. 3. From perusal of the report of the pleader Commissioner it appears that he inspected only the ground floor of the suit premises and reported that there are six rooms out of which four rooms are in occupation of the tenant and two rooms are in occupation of the plaintiff which is used as bed room and kitchen. In his evidence the Pleader Commissioner simply stated that he only inspected the ground floor of the suit premises. Mr. Devi Prasad, learned Counsel appearing for the petitioner during the course of his argument submitted that after the report was submitted by the pleader. Commissioner the defendant made a prayer to the Court for appointment of a Commissioner for inspection of the suit premises in order to find out as to how many shop rooms are belonging to the plaintiff are on the ground floor and how many rooms are available for residential purpose on the first floor of the building. The said petition was rejected by the Court below on the ground that the pleader Commissioner appointed at the instance of the plaintiff has already submitted a repot and there is no need of appointing another Commissioner.
9. As noticed above the learned Court below although referred the evidence on the evidence on the point that the second floor of the building has been constructed by the plaintiff or it was in existence at the time of filing of the suit where admittedly the son of the plaintiff has been residing but the Court below has not considered the effect of such evidence in the case pleaded by the plaintiff that he has no other accommodation and the two rooms which are available its are used by him as bed room and kitchen. The learned Court below has not considered the entire evidence it its right perspective and was influenced by the fact that the plaintiff requires the premises both for business and residential purpose. On the question of partial evidence also the Court below has not decided it in the light of the evidence rather the Court below assumed that since the area of the shop room and the godown room is 12' 7' and 12' 13', therefore it would not satisfy the need and requirement of the plaintiff. It has been held by the Apex Court that such assumption by Court is fallacious since it presupposes the indivisibility of a premises comprised of one room, irrespective of its dimensions and even when the room is big enough permit division to satisfy the needs of the land lord as well as the tenant. This enquiry has to be made by the Court after reaching the conclusion that the land-lord's requirement for occupation of the premises set up by him has been made out which is statutory requirement and cannot be ignored by the Court. Having regard to the facts and circumstances of the case the impugned judgment and decree passed by the Court below cannot be sustained in law.
10. In the result, this civil relation application is allowed, The impugned judgment and decree passed by the Court below is set aside and the matter is remitted back for passing afresh judgment after coming to a fresh finding on the question of personal necessity and also on the question of partial eviction in the light of the observation and direction made above.