Syed Md. Mahfooz Alam, J.
1. This Civil Revision is directed against the judgment and decree dated 17.01.2005 passed by Shri Subhash Chandra Chaurasia, Sub-ordinate Judge-VII, Patna in Eviction Suit No. 27 of 1995 whereby the learned Sub-ordinate Judge-VII, Patna has been pleased to pass decree in favour of plaintiff-opposite party for eviction of the defendants-petitioners from the suit house.
2. The brief fact is that the plaintiff-opposite party Smt. Premlata Sinha filed Title Suit No. 27 of 1995 for a decree of eviction against petitioners-defendants from the suit premises described in Schedule-1 of the plaint. The sole ground on which the eviction suit was preferred was personal necessity of the plaintiff.
3. The case of the plaintiff, as per the plaint, is that she is the owner and landlord of the suit house. The husband of the plaintiff was in government service, who retired in the year 1992, After retirement of her husband the suit house was required for the residence of the plaintiff as plaintiff had no other house within Patna Municipal Corporation. Her husband also did not possess any exclusive house except 1/5th share in his small ancestral house situated at 78 S.K. Nagar, Patna which was not sufficient for accommodation of the plaintiff's family. Further case of the plaintiff was that in December, 1984 the suit premises was let out to the defendants on monthly rent at Rs. 4000/- for a fixed period, which has already expired. The defendant No. 1 is running a Doctor's clinic in the said suit house. After expiry of lease period the plaintiff asked the defendants to vacate the suit premises who assured the plaintiff to vacate the same in due course but did not vacate. It is further said that the defendant had already constructed his own house in Doctor's Colony at Raja Bazar and had got another house at Mithapur 'B' area, besides his own clinic at Frazer Road, Patna, as such due to the eviction of the defendants from the suit premises, no inconvenience will be caused to the defendants. It is further said that the suit house is a double-storyed building which has two bed rooms at first floor and at the ground floor there is one hall, kitchen, store room and bath room, so the entire house is required to meet the bonafide personal necessity of the plaintiff. It is further said that the defendants in spite of giving assurance to vacate the suit house did not vacate the suit house, as such the necessity of filing of the suit arose.
4. It appears from perusal of the record that initially the suit was brought against petitioner-defendant No. 1 only but later on petitioner Nos. 2 and 3 were also impleaded as defendant Nos. 2 and 3, respectively, and two sets of written statements were filed on behalf of the defendants making more or less similar pleadings in both the written statements.
5. The case of the defendants as made out in both the written statements is that the suit as framed is not maintainable. The plaintiff has got no cause of action, the suit is barred by principles of waiver, estoppel and acquiescence and also suffers from mis-joinder and non-joinder of parties. Further contention is that the plaintiff has already entered into an agreement for sale of the suit house and the surrounding lands with defendant No. 3, M/s Ramesh Chandra Associates and its partners and with M/s Neuro Electro Diagnostic Centre under three different agreements for sale for a total consideration of Rs. 15,00,000/- (Fifteen lakhs) after accepting advance earnest money amounting to Rs. 2,50,000/- out of the said total consideration money and in part performance of the contract the plaintiff put the purchaser (defendant No. 3) in possession of the suit property and since that date there is no relationship of the landlord and tenant between the plaintiff and defendants. It is stated that the said vendee i.e. Ramesh Chandra Associates and its partner and M/s Neuro Electro Diagnostic Centre had already filed Title Suit No. 355 of 1993 for specific performance of contract with respect to three agreements for sale dated 26.09.1989 executed by the plaintiff in favour of M/s Chandra Associates and others which suit is still pending for trial.
The defendants have further contended that the plaintiff has got several houses and the plaintiff or her husband did not require the suit house either for their personal use and occupation or for any other purposes rather the plaintiff was negotiating to sell the suit house with several other persons and when the fact was brought to the notice of the defendants, the defendant No. 3 M/s Chandra Associates and its partner Neuro Electro Diagnostic Centre started negotiation for purchaser of the suit house which was finally materialized and accordingly, the agreements for sale were executed by the plaintiff after receiving Rs. 2,50,000/- from the defendants but to fulfil the greed, the plaintiff wanted to rescind the agreement for sale. It is further said that the suit house is not suitable for the small family of the plaintiff consisting of herself and her son only. The defendants have denied that the plaintiff has got any bonafide necessity for the suit premises and as such, the suit is liable to be dismissed with cost.
6. From the perusal of the judgment of the lower court it appears that on the basis of pleadings of both the parties, the learned trial court framed as many as four issues which are as follows:
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff got any cause of action against the defendants?
(iii) Is the plaintiff entitled to a decree for eviction of the defendant from the suit premises on the ground of personal necessity?
(iv) To what other relief or reliefs, if any, the plaintiff is entitled to?
7. From the perusal of the judgment, it appears that while making discussion upon the above mentioned issues, the trial court considered the relationship of landlord and tenant between the parties, bonafide personal necessity of the plaintiff and whether the requirements of the plaintiff can be fulfilled by partial eviction and on making elaborate discussion on the above mentioned points, the trial court held that the plaintiff is the owner of the suit house. There is relationship of landlord and tenant between the plaintiff and defendants and that the plaintiff genuinely requires the suit premises for her personal use and accommodation and that the plaintiff's requirement cannot be fulfilled by partial eviction.
8. The learned Advocate of the petitioners-defendants has vehemently challenged the findings of the trial court and during argument, assailed all the findings of the trial court. According to the argument of the learned advocate of the petitioners, the plaintiff-opposite party is not the owner of the suit house as she had already executed three agreements for sale of the suit house with some of the defendants on 26.09.1989 and after receiving Rs. 2,50,000/- as advance consideration money, she put the defendants in possession of the suit house and since that date the plaintiff is not the owner of the suit house and the defendants by virtue of purchaser are in occupation of the suit house, so there is no relationship of landlord and tenants between the parties.
(ii) On the point of personal necessity, the argument of the learned Advocate of the petitioners was that the trial court did not consider this fact that the plaintiff has got a very small family and presently she is residing in the house which is ancestral property of the husband of the plaintiff, the said house is a big one and in absence of other co-sharer, the plaintiff is occupying the entire house which is sufficient to meet her requirements for the purpose of her residence and her other family members.
(iii) His further contention was that it was mandatory for the trial court to frame a separate issue with regard to partial eviction and then the trial court should have asked the parties to adduce evidence on that point and only then the trial court could have given its finding on the question of partial eviction, so the finding of the trial court on the issue of partial eviction is not in accordance with law and on this score alone, this appeal should be allowed and the case be remanded back to the trial court for giving opportunity to the parties to adduce evidence on the point of partial evidence.
9. On the other hand, the argument of the learned advocate of opposite party is that the scope of revision under Section 14(8) of Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter will be called as 'B.B.C. Act') is very limited and the court should ordinarily not interfere with the finding of the trial court unless the said finding is held to be perverse. In support of his argument the learned advocate of the opposite party has placed reliance on the following decisions: (i) 1991 (2) P.L.J.R. Page 224 para. 90 (Jai Prakash Jalan and Anr. petitioners v. Rambilash Madan Gopal, opposite party) and (ii) : AIR1988SC1845 (Smt. Rajbir Kaur and Anr. Appellants v. S. Chokosiri and Company, Respondents).
10. On the other hand, the argument of the learned advocate of the petitioner is that under Section 14(8) of B.B.C. Act this Court is empowered to re-appraise the evidence of the party if the court finds that the findings of the court below are perverse and not supported by evidence or is based on irrelevant matter. In support of his argument, the learned advocate of the petitioner has placed reliance upon the following decisions: (i) : AIR1998Pat166 (Umesh Kumar Verma, petitioner v. Chandrika Prasad Singh and Ors. respondents) and (ii) 2002 (4) P.L.J.R. Page 32 (Anil Kumar alias Anil Kumar Pachisiya and Anr. petitioners v. Shri Bengali Prasad Gupta, opposite parties).
11. So far the scope of revisional power of this Court under Section 14(8) of B.B.C. Act is concerned, the law is settled and there are catena of decisions on this point. As per the settled law the jurisdiction of the High Court under Section 14(8) of B.B.C. Act is wider than that of Section 115 of the Code of Civil Procedure and the High Court in exercise of its revisional jurisdiction under Section 14(1) not only can consider the questions which are permissible in terms of Articles 226 and 227 of the Constitution of India as also under Section 115 of the Code of Civil Procedure but also in cases where the trial court has arrived at a finding of fact upon erroneous consideration of legal provision or acted contrary to law, this Court can reappraise the evidence and reverse the findings of the trial Court.
12. In support of my view I would like to refer some of the decisions cited by either parties on the above point. In A.I.R. 1998 Patna Page 166 while dealing with the revisional power of this Court under Section 14(8) of B.B.C. Act, this Court has held:
The scope and power of this Court under Section 14(8) of the said Act (Bihar Buildings (Lease, Rent and Eviction) Control Act) has been considered by various courts at many occasions and the question is no longer res integra. It is well settled that this Court in exercise of power under Section 14(8) of the said Act not only can consider the questions which are permissible under Article 226 and 227 of the Constitution of India as also under Section 115 of the Code of Civil Procedure, but also consider whether the trial court has arrived at a finding of fact upon erroneous consideration of legal provision. It is equally well settled that power of revision of this Court is wide enough and not confine to merely examine the legality. If the finding is perverse and not supported by evidence or if the court arrived at a finding of fact ignoring the relevant matter and based its decision on irrelevant matter or on extraneous consideration, the High Court will certainly have jurisdiction to interfere with the said finding.
In 2002 (4) P.L.J.R. Page 32, at para. 9 this Court has held:
This Civil Revision has been filed under the proviso to Section 14(8) of the Act, which empowers this Court to judge the validity of the order and also to see as to whether the judgment and decree are according to law or not. The power is not as wide as an appellate court nor as limited as of a revisional court under Section 115 of the Code of Civil Procedure. The court can appraise the evidence for the limited purpose of seeing as to whether the order is according to law or not. In case, it is found that the Court has failed to consider the vital and important evidence or has relied upon inadmissible evidence or has ignored the basic requirements of law for grant or refusal of a decree for eviction, it should interfere with the order.
In 1990 B.B.C.J. page 74, at para. 45 this Court has held:
So far as the jurisdiction of a High Court in terms of Section 14(8) of the said Act is concerned, there cannot be any doubt that the scope of revisional jurisdiction therein is wider than the scope of its jurisdiction under Section 115 of C.P.C. Reference in this connection may be made to Helper Girdharbhai v. Saiyed Md. Mirasaheb Kadri and Ors. reported in 1987 vol. 3 SCC 5338 at 594. This aspect of the matter has also recently been considered in Civil Revision No. 262 of 1988 wherein it was held as follows:
Such is not the position here. In terms of Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act a High Court is entitled to call for the records of the case for the purpose of satisfying itself that an order under Section 14 therein is according to the law and pass such order in respect thereof as it may think fit and proper.
In 1991 (2) P.L.J.R. Page 224, para. 89 (Jai Prakash Jalan and Anr. petitioners v. Rambilash Madan Gopal, opposite party) this Court has held:
Although, it is not possible to lay down exhaustively the situations where this Court can exercise its jurisdiction under Section 14(8) of the Act, it is clear that this Court in exercise of its revisional jurisdiction under Section 14(8) not only can consider the questions which are permissible in terms of Articles 226 and 227 of the Constitution of India as also under Section 115 of the Code of Civil Procedure but also in a case where the trial court has arrived at a finding of fact upon erroneous construction of a legal provision or acted contrary to law. This court can also exercise its jurisdiction in a case where the trial court misconstrued a vital document or committed a procedural error.
13. From the above mentioned decision, it is clear that the hand of this Court in exercising revisional power under Section 14(8) of B.B.C. Act is wide enough and not confined to merely examine the legality of the finding and if this Court finds that the finding of the court below is perverse in law, not supported by evidence and is based on ignoring the relevant material this Court will certainly have jurisdiction to interfere with the finding of the court below. Once it is decided that this Court has jurisdiction to reappraise the evidence in order to come to the conclusion that the impugned judgment is in accordance with law and material evidence has not been ignored, it is open to this Court to scrutinize and re-appraise the evidence available on record in order to come to the conclusion that the findings of the Court blow are based on materials available on record and the trial court has not committed any illegality while arriving at a particular finding. In order to come to the conclusion that the judgment of the trial court is based on the materials on record, first of all I would like to see what are the findings of the trial court on the different issues involved in this suit. The issues involved in the suit were as follows.
(i) Whether the plaintiff is the owner and landlord (landlady) of the suit premises?
(ii) Whether there is relationship of landlord and tenant between the plaintiff and the defendants?
(iii) Whether the plaintiff requires the suit premises for her bonafide
personal use?
(iv) Whether the requirement of the plaintiff can be fulfilled by partial eviction?
(v) Whether the plea of the defendants that they are in possession of the suit premises as purchasers under three agreements of sale is tenable in law?
14. From the perusal of the judgment of the trial court it appears that with regard to ownership of the suit premises the trial court held that the plaintiff is the owner and landlord of suit premises and the defendants except defendant No. 1 are tenants under the plaintiff. Regarding personal necessity of the plaintiff, the trial court held that the suit premises is genuinely required for the bonafide personal use and occupation of the plaintiff.
On partial eviction the court below was of the view that the plaintiff's requirements for the suit premises cannot be fulfilled by partial eviction.
Regarding the plea of the defendants that they are in possession of the suit premises as purchasers under the three agreements of sale the court below held that Ext. 4 dated 01.01.1999 issued by Rekha Chandra (defendant No. 2) to plaintiff, claiming adjustment of Rs. 28,500/- towards rent of the suit house after 10 years of alleged agreement for sale falsifies the case of the defendants that they are living in capacity of purchaser under three agreements for sale. Let me see whether the above mentioned findings of the trial court are based on the materials available on record.
15. It is admitted case of both the parties that the plaintiff is the owner of the suit premises and it appears that in support of the ownership of the suit premises the plaintiff has also adduced oral as well as documentary evidence.
16. Since this point is no disputed and there is no defect in the finding of the trial court in this regard, as such I do not want to re-appraise the evidence of the parties on this point and so on the admitted case of the parties the finding of the trial court that the plaintiff is the owner of the suit premises is upheld.
17. with regard to the relationship of landlord and tenant between the parties the learned trial court has discussed this point in paragraphs 10, 11 and 12 of its judgment. It appears that while deciding the issue in favour of the plaintiff the learned trial court has relied upon the oral as well as documentary evidence of the parties. The court has placed reliance upon the oral evidence of P.W.-2 Gopal Saran Sinha, P.W.3 Premlata Sinha (plaintiff) and P.W.4 Sushant Kumar Sen. It further transpires that the trial court has placed reliance upon Ext.-A which is lease deed dated 22.10.1984 executed between plaintiff Premlata Sinha and M/s Chandra Associates and its Partner besides that the trial court has placed reliance upon Ext.-2 which is letter dated 04.12.2002 written by doctor Ramesh Chandra to his lawyer and Ext.-4 which is letter dated 01.01.1999 issued by Rekha Chandra to the plaintiff. The learned trial court after making discussion on the above oral as well as documentary evidence has held like this 'Ext.-A is a lease deed dated 22.10.1984 executed by the plaintiff in favour of M/s Chandra Associates through its partners Smt. Rekha Chandra wife of Dr. Ramesh Chandra, Shri Rajesh Chandra son of Dr. Ramesh Chandra and Miss Rashmi Chandra daughter of Dr. Ramesh Chandra for a period of eleven months from 1st December, 1984 renewable one month before the expiry of the eleven months at the request of the lessee on the terms and conditions....Ext.-2 is the letter issued on 04.12.2002 by Dr. Ramesh Chandra....Ext.-4 is a letter dated 01.01.1999 issued by Rekha Chandra to the plaintiff which was written after 10 years of the alleged agreement for sale and under this letter D.W. 4 (Defendant Rekha Chandra) claims adjustment of Rs. 28,000/- against the rent which was incurred in constructing boundary wall of the house which have been damaged by P.R.D.A. in widening of the road. It shows that Rekha Chandra was paying monthly rent to the plaintiff which proves the relationship of the landlord and tenant between the parties'.
18. I have gone through the above mentioned oral as well as documentary evidence and I am of the view that on the basis of the above evidence specially Ext. A and Ext. 4 no other finding could have been arrived at except that the plaintiff has succeeded in proving the relationship of landlord and tenant between the parties.
19. Regarding the plea of the defendants that by virtue of three agreements of sale and after paying part consideration amount amounting to Rs. 2,50,000/- they have been coming in possession of the suit premises as purchaser or owner of the suit premises, the trial court with regard to these plea of the defendants came to the following finding: 'Moreover, if any agreement to sell was attributed by the plaintiff as stated in the written statement by the defendant it does not mean that the ownership (has been) transferred to the defendant until the sale deed is executed. So the possession of the defendants over the suit premises cannot be as of purchaser but can be as tenant or lessee.' I am of the view that the above finding of the trial court is in conformity with Section 54 of the Transfer of Property Act which defines contract for sale in the following words. 'A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.' Thus as per Law itself the contract of sale does not confer title to the alleged purchaser with respect to the properties mentioned in the agreement and hence I upheld the finding of the trial court in this regard.
20. Regarding the personal necessity of the suit house of the plaintiff the learned trial court at paragraph 16 of its judgment has held that it is admitted that the plaintiff has two sons who are married and has children, so the plaintiff needs the suit premises for living. At paragraph 22 the court below has further held that the evidence of the plaintiff is clear on the point of personal necessity that the plaintiff has seven to eight members in the family and the accommodation in the ancestral house in two rooms (1/5th share) which is too small to accommodate the family members of the plaintiff which shows that the need of the plaintiff is reasonable and bonafide. Moreover, the plaintiff has only one house which is the suit premises. She has no other house for occupation. At paragraph 23 the learned court below has further held that having regard to the decisions of the Hon'ble Court in this case I am of the opinion that the plaintiff has proved that the suit house is needed to the plaintiff for her bonafide personal necessity to accommodate her family members and the need is genuine and reasonable'.
21. The above finding of the trial court has been seriously assailed by the learned advocate of the petitioners who has argued that the said finding is not in accordance with the settled principle of law. In this regard the argument of the learned advocate of the petitioners is that in order to get a decree in a suit filed under the provision of Section 11(c) of the B.B.C. Act on the ground of personal necessity, the plaintiff has to prove that the requirement of the suit house to the plaintiff is bona fide one and the requirement existed at the time of judgment. In support of his above argument, the learned advocate of the petitioner has placed reliance upon the following decisions: (i) A.I.R. 1998 Patna Page 166 para. 11 (Umesh Kumar Verma, Petitioner v. Chandrika Pd. Singh and Ors. Respondents) (ii) 2000 (1) P.L.J.R. Page 875, para. 5 (Sampath Kumar Karmkar and Ors. Petitioners v. Gopal Kumar, Opposite Party) (iii) 1990 B.B.C.J. Page 74, para. 40 (Chhedi Ram, Petitioner v. Smt. Pano Devi and Ors. Opposite Parties) (iv) 1991 (2) P.L.J.R. Page 224, para. 100 (Jai Prakash Jalan and Anr. Petitioners v. Rambilash Madan Gopal, Opposite Party) (v) 1998 (3) P.L.J.R. Page 541, para. 12 (Sachida Nand Prasad, Petitioner v. Srimati Savitri Sahay, Opposite Party) (vi) 1998 (2) P.L.J.R. Page 357, para. 13 (part) and (Ratanlal Baid, Petitioner v. Sohanlal Saha, Opposite Party).
22. In order to appreciate the argument of the learned advocate of the petitioners I would like to quote the above mentioned paragraphs from the above mentioned decisions:
In : AIR1998Pat166 (Umesh Kumar Verma, Petitioner v. Chandrika Pd. Singh and Ors. respondents) (supra) at para. 11 the Court has held as follows:
The words 'reasonable requirement' time and again have been interpreted by various Courts. The consistent view is that the words 'reasonable requirement' do not mean a mere desire of the landlord to use the premises either for himself or for any member of his family. In the case of Mattulal v. Radhe Lal : [1975]1SCR127 the Apex Court has considered the question and held as follows (At Pages. 1602-03 of AIR):
The question would still remain whether there were proper grounds on which the finding of fact could be interfered with by the High Court. It is now well settled by several decisions of this Court including the decisions in Sarvata T.B.'s case 1966 MPLJ 26 (supra) and Smt. Kamla Soni's case AIR 1969 NSC 186 (supra) that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bona fide. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show ------ the burden being on him ------ that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business. The Additional District Judge did not misdirect himself in regard to these matters, as for example, by misconstruing the word 'required' or by erroneously placing the burden of proof on the appellant and no error of law was committed by him in arriving at the finding of fact in regard to the question of bona fide requirement of the respondent, which would entitle the High Court in second appeal to interfere with that finding of fact.
It is, therefore, clear that in a suit for eviction on the ground of personal necessity, main test should be whether it is necessary for the landlord to evict the tenant for his personal use and occupation and that need is bona fide.
In 1990 B.B.C.J. Page 74 (Chhedi Ram, petitioner v. Smt. Pano Devi and Ors. opposite party) (supra) at para. 40, the Court has held as follows:
However it is also now well known that the requirement must exist on the date of passing of a decree. Reference in this connection may be made to Hasmat Rai and Anr. v. Raghunath Pd. reported in : [1981]3SCR605 and Tapsendra Nath Lal v. Norodh Baran Haldar reported in 1986 P.L.J.R. 734.
In 1991 (2) P.L.J.R. Page 224 (Jai Prakash Jalan and Anr. petitioners v. Rambilash Madan Gopal, opposite party) (supra) at para. 100 the Court has held as follows:
In terms of Section 11(1)(c) of the said Act, a mandate has been imposed upon the court to satisfy itself that the building is reasonably and in good faith required. Such a determination is possible when the court takes into consideration the facts pleaded by the parties and the evidences brought on records. The court while arriving at a decision is also required to consider that the building is reasonably and in good faith required by the landlord or not.
Bonafide means in good faith and genuinely. Bonafide need must be a genuine need for the landlord to occupy the premises. It is enough that he really means to occupy it; it must be necessary for him to occupy and such necessity must be genuine one. The expression 'reasonably required' is also relevant and, thus the same has to be judged according to the dictates of reason and not on any capricious view or on sentiment. While judging the reasonable requirement of the plaintiff, his status, nature of work or vocation, status of his health and other similar factors would be relevant considerations.
In 1998 (3) P.L.J.R. page 541 (Sachida Nand Prasad, petitioner v. Srimati Savitri Sahay, opposite party) (supra) at para. 12 the Court has held as follows:
In the instant case, the court below has further misdirected itself in law in sofar as it held that even if the other premises were let out by the lady at a higher rent it is the choice of the plaintiff-landlady to evict any of her tenants. I have already observed that the court below has applied wrong legal test in deciding the question of personal necessity. Time without number it has been held by the various courts that mere assertion on the part of the landlord that he requires the premises for his own personal necessity is not decisive. It is for the court to determine the truth of the assertion as to whether it is bonafide. The test which has to be applied is an objective test and not subjective one. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and burden is on the plaintiff to prove that he genuinely requires the premises for his personal necessity. The finding of the court below on the issue on personal necessity is, therefore, perverse in law. It is equally perverse to hold that the landlord has unfettered right to fulfil his requirement as per his choice without proof that alternative accommodation is not suitable to meet the requirement. It has been well settled that a right of re-entry is not unfettered right and the owner-landlord is not the sole Judge to decide it. It has become the duty of the Court to consider it objectively and find out whether requirement of the landlord is bona fide and genuine. In this connection reference may be made to a decision of the Apex Court in the case of M.M. Quasim v. Manohar Lal : [1981]3SCR367 .
In 1998 (2) P.L.J.R. Page 357 (Ratanlal Baid, petitioner v. Sohanlal Saha, respondent) (supra) at para. 13 (part), the Court has held as follows:
The term bonafide represents something more than a desire or wish to occupy. It is quite clear it does not convey the idea of absolute necessity in the sense that there would be no other possible alternative for the landlord for meeting his requirement except by occupying his property.
23. From the above mentioned decision it is established that in order to obtain a decree in his favour on the ground of personal necessity under the provision of Section 11(1)(c) of the B.B.C. Act, the landlord has to establish that his/her requirement of the suit premises is bonafide and genuine. According to the finding of the trial Court, the plaintiff's requirement of the suit premises was bonafide one and the trial Court discussed this point at paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of his judgment. At para. 20 of his judgment the Court below has held like this 'In this case the plaintiff has stated in the plaint that after retirement in the month of November, 1992 the husband of the plaintiff and she has been living in the ancestral house of the husband situated at S.K. Nagar, Patna on 1/5th share which is too small and cannot accommodate the plaintiff's family. So she needs the suit premises as she has to live in the same.'
Finally the court below at paragraph 22 has come to the finding that 'the evidence of the plaintiff is clear on the point of personal necessity that the plaintiff has seven to eight members in the family and the accommodation in the ancestral house is two rooms (1/5 share) which is too small to accommodate the family members of the plaintiff which shows that the need of the plaintiff is reasonable and bonafide. Moreover the plaintiff has only one house which is the suit premises. She has no other house for occupation.' I am of the view that the above finding of the trial Court on the point of personal necessity is based on the materials available on record and the trial court has carefully scrutinized the oral evidence of the parties adduced on this point. Under the circumstances, I do not find that the finding of the trial court on the point of personal necessity is perverse or against the materials on record and so, this finding of the trial Court is also upheld.
24. With regard to partial eviction the argument of the learned advocate of the petitioner was that the trial court has committed illegality by deciding the question of partial eviction in favour of the plaintiff without giving opportunity to the parties to adduce evidence on this point and in support of his argument the learned advocate of the petitioner has placed reliance upon the following decisions : (i) 2002 (4) PLJR Page 32 (Anil Kumar alias Anil Kumar Pachisiya and Anr. Petitioners v. Shri Bengali Prasad Gupta and Ors. Opposite Parties) and (ii) 2000 (1) PLJR Page 875 (Sampath Kumar Karmkar and Ors. Petitioners v. Gopal Kumar, Opposite Party).
The learned advocate has placed reliance at para. 12 of the decision reported in 2002 (4) P.L.J.R. Page 32 (Anil Kumar alias Anil Kumar Pachisiya and Anr. Petitioners v. Shri Bengali Prasad Gupta and Ors. Opposite Parties) (supra). Paragraph 12 of the decision is quoted below :
The law is well-settled that the court has to consider the question of partial eviction even if no such claim has been made by the tenant. While deciding the said question in terms of the proviso, the court cannot outrightly reject the claim of partial eviction. It has to consider the extent of the premises which the landlord requires reasonably. This has to be determined on the basis of evidence and not on the mere ipse dixit or wish or desire of the landlord. Once the court comes to the finding about the reasonable requirement of the landlord then it has to consider as to whether such requirement will be substantially satisfied (not fully satisfied) by ordering partial eviction.
The learned advocate has further placed reliance at para. 5 of the decision reported in 2000 (1) P.L.J.R. Page 875 (Sampath Kumar Karmkar and Ors. Petitioners v. Gopal Kumar, Opposite party) (supra) and the same is being quoted below:
Regarding partial eviction also the learned court below rejected the same only on the ground that there was a stray statement by the defendant to the effect that he would not like to share the suit premises with the plaintiff. It appears from the evidence that the plaintiff's wife is dead but he has got two or three children. The suit premises consists of several rooms and whether two family can be accommodated or not has not been considered by the learned Court below while considering the issue of partial eviction. Defendant-petitioners before this Court has submitted that he would have no objection if proper accommodation is made to both the parties in the suit premises. Moreover, it appears that the need of the plaintiff for residence was definitely there because he had already come out from his brother's family and is accommodating himself in another room and if one room were to justify for this accommodation or not is a matter to be considered by the Court below, on appreciation of evidence in the matter. On perusal of the impugned judgment I find that issue of personal necessity and of partial eviction had been considered casually by the court below without going into the deep in it. Much stress was given regarding business of the plaintiff but nowhere in the plaint there was any plea of business by the plaintiff and even if such business is there for the purpose of eviction as a personal necessity then also such business remains a vague one as no-where it has been specifically stated as to what business the plaintiff wants to start. The landlord cannot have any unfettered right to get the eviction on the simple plea of personal necessity. Desire and wish cannot take place the bonafide and genuineness of personal necessity. For the purpose of eviction on the ground of personal necessity it must be held before grant of decree to the effect that such necessity is bonafide, real non-imaginary and more than wish or desire. But it appears that the learned court below has not approached the case in its proper perspective for consideration of personal need. But when the plaintiff has got no personal accommodation of his own then perhaps he might have a bonafide need for personal accommodation but how many rooms would cater his need has also not been considered. In that way the impugned judgment is hereby set aside and the matter is sent back to the court below for considering the matter afresh both on point of bonafide of personal necessity and of partial eviction in the light of the observations made above. If necessary party may also be given further opportunity to adduce more evidence on those two points.
25. It is true that the Courts are of the opinion that for coming to the finding that the requirements of the plaintiff will not be fulfilled by partial eviction, it is obligatory for the trial Court to frame issue at this point and ask the party to adduce evidence for the purpose of enquiry and then after scrutinizing the evidence of the parties, the court should have come to any finding with regard to partial eviction. But I am of the view that in every case it is not mandatory and where there is sufficient evidence on record that the need of the plaintiff will not be fulfilled by partial eviction of defendant from the suit premises, there is no need to frame any separate issue on this point and ask the party to adduce evidence on this point. In this case there are sufficient evidence on record that the plaintiff-landlady has got only one house which is the suit house and there are altogether seven to eight members in her family, she has got two married sons and naturally, for both the sons separate rooms are required, likewise for the plaintiff herself one room is required. There is evidence that the plaintiff has got grand-children and they also require separate room for study and for other purposes. The evidence on record shows that the suit house has got only four to five rooms. Moreover, the evidence on record shows that the defendants have got several houses in Patna Town and so under this circumstance it would be very unfair and unjust to ask the plaintiff to spare one portion of her residential house for accommodating the defendants, who have got several houses in Patna Town and who wants to grab the property of the plaintiff by any means. Therefore, I am of the view that the finding of the trial Court on the point of partial evidence is also according to law and the same is hereby upheld.
26. It has been argued by the learned advocate of the petitioners that this eviction suit itself was not maintainable, as the plaintiff has failed to implead all the partners of M/s Chandra Associates and in this regard the learned advocate of the petitioner has placed reliance upon the following decisions : (i) : [1985]1SCR268 (Chhotelal Pyarelal, the Partnership Firm and Ors. Appellants v. Shikharchand, Respondent) (ii) : [1979]120ITR49(SC) (Malabar Fisheries Co., Appellants v. The Commissioner of Income-tax, Kerala, Respondent) and (iii) : [2003]1SCR868 (N. Khadervali Saheb (dead) by LRS. and Anr. Appellants v. N. Gudu Sahib (dead) and Ors. Respondents).
27. I am of the view that the abovementioned decisions are not relevant in the context of this case, as the lease deed (Ext.A) which was executed between the plaintiff and M/s Chandra Associates and which was the basis of tenancy had already expired and the relevancy of the lease deed was only to the extent of showing that the partners of M/s Chandra Associates were inducted as tenants in the suit house. It is admitted position that at present the defendants Dr. Ramesh Chandra and his wife Smt. Rekha Chandra are occupying the suit premises and their occupation dates back to the execution of lease deed (Ext. A) and so, it is immaterial whether all the partners of the M/s Chandra Associates have been impleaded as party to suit or not and it is sufficient that even one of the partner who is actually occupying the suit premises has been impleaded as party.
28. In the result, I do not find any merit in this revision application and as such, the same is hereby dismissed on contest with cost. It is further ordered that all the petitioners-defendants are directed to vacate the suit premises within one month from the date of this order positively, failing which the plaintiff shall be entitled to get the decree executed through the process of law.