Suresh Sah v. Vinod Kayal & Ors.

Heard the learned counsel for the appellant in support of this appeal. The tenant-defendant is the appellant in this appeal against the judgment and decree of affirmance upholding the decree of eviction on the ground of default and personal necessity passed against the defendant. The eviction suit no. 13 of 1991 was filed by the plaintiff-respondents praying for eviction of the defendant from the suit premises on the ground of default in payment of rent and also the personal necessity of the plaintiffs. The tenant-defendant resisted the claim of the plaintiffs by averring that there was no Patna High Court SA No.575 of 2010 (7) dt.22-01-2013 2 relationship of landlord and tenant and in fact he was the tenant of the co-sharer of the plaintiffs to whom the suit premises was allotted in private partition. It has further been stated by the defendant that he had been paying rent to the said co-sharer of the plaintiffs and there was no rent in arrears. The trial court after considering the pleading and evidence of the parties, has come to the conclusion that there exists the relationship of landlord and tenant in between the plaintiffs and the defendant. It has also been found that the defendant has failed to establish the payment of rent to the plaintiffs and as such their default is also established. The issue of personal necessity has also been decided in favour of the plaintiffs. The appellate court below, on reappraisal of evidence, has concurred with the findings of the trial court. Accordingly, the suit has been decreed and the appeal thereafter has been dismissed. The learned counsel appearing on behalf of the appellant has submitted that both the courts below have wrongly discarded the evidence of the defendant and thereby reached to the wrong conclusions. It has further been submitted that the plaintiffs have failed to adduce cogent evidence to establish partition and exclusive ownership over the property and further they have also failed to substantiate the existence of their relationship as landlord Patna High Court SA No.575 of 2010 (7) dt.22-01-2013 3 and tenant with the defendant. The learned counsel for the appellant has further canvassed that the aspect of partial eviction has not been considered by both the courts below which was mandatory in view of the provision of Section 11 (1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. It has also been contended that the other co-sharer namely, Bishwanath Pd. Keyal whom the defendant has accepted to be his landlord was a necessary party to the suit and therefore the suit was also bad for non-joinder of a necessary party. From the perusal of the impugned judgments and after considering the submissions on behalf of the appellants, it transpires that the tenant-defendant has accepted himself to be the tenant of the suit premises but has resisted the decree of eviction against him on the basis of the assertion that he is tenant of the co- sharer of the plaintiffs to whom the suit premises has been allotted in a private partition of the year 1988. It is thus admitted that the suit premises is the family property of the plaintiffs. The defendant, however, did not examine himself as a witness in the suit to establish his pleadings, particularly the fact of partition in which according to him the suit premises was allotted in the exclusive share of the another co-sharer Bishwanath Pd. Keyal. The said co-sharer Bishwanath Pd. Keyal or any of his family Patna High Court SA No.575 of 2010 (7) dt.22-01-2013 4 members have also not been examined in the suit by the defendant to establish his said assertion. The oral evidence adduced by the defendant in support of this assertion has been found not reliable for substantiating the story of partition as propounded by the defendant. During the course of hearing of this appeal also no cogent evidence could be pointed out on behalf of the appellant which has not been considered by both the courts below. The submission of the learned counsel for the appellant has centered around the re-appreciation of evidence but it is not permissible in the second appellate jurisdiction unless the perversity in the findings of the courts below is established. The defendant has also failed to establish the photo copy of the ‘Yadast Kurranama’ dated

03.02.1989 in support of his case that the suit premises fell in the share of his landlord Bishwanath Pd. Keyal. It is also manifest from the judgment of the appellate court that much opportunity was given to the defendant-appellant to examine himself in the suit and the cost had also been imposed but the appellant did not examine himself nor paid the cost. As such the courts below have committed no illegality in drawing adverse inference against the defendant-appellant. The submission on behalf of the appellant that Bishwanath Pd. Keyal was a necessary party to the suit is also Patna High Court SA No.575 of 2010 (7) dt.22-01-2013 5 completely misconceived in view of the fact that the suit was filed for eviction and no relief has been claimed against Bishwanath Pd. Keyal who was, thus, not a necessary party. Much emphasis has been led by the leaned counsel for the appellant by submitting that the issue of partial eviction has not been considered by both the courts below and therefore the decree for eviction is vitiated. It is not disputed that the suit has been filed on the ground of default in payment of rent and personal necessity. Both the courts below have held that the defendant is a defaulter within the meaning of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. In this view of the matter, even if the finding of personal necessity has also been recorded in favour of the plaintiffs, the non- consideration of the issue of partial eviction will not vitiate the decree for eviction of the defendant from the suit premises. In view of the aforesaid premised reasons, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)