Most. Nirsi @ Nirsi Devi v. Ram Lakhan Mahto

.... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. JITENDRA KISHORE VERMA, Adv. Mr. Abhay Shankar Singh, Adv. For the Respondent/s : Mr. Amit Prakash, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 09-04-2013 Heard Mr. J.K. Verma the learned counsel for the appellants and Mr. Amit Prakash, the learned counsel for the respondents.

2. The plaintiffs are the appellants in this appeal against the Patna High Court SA No.72 of 2010 dt.09-04-2013 2 judgment of reversal by the appellate court below setting aside the decree for eviction passed in favour of the plaintiffs.

3. The plaintiffs filed the suit for eviction of the defendants on the ground of default in payment of rent and personal necessity for the suit premises. The plaintiffs’ case was that they were owners of the suit premises and they had inducted the defendants as tenants on monthly rental of Rs. 200/- per month but the defendants defaulted in payment of rent from the month of September 2002. The plaintiffs have also set up the case of personal necessity for the suit premises for starting business by their sons in the suit premises.

4. The defendants appeared and contested the claim of the plaintiffs. It was the case of the defendants that they were not the tenants of the plaintiffs rather they were in possession of the suit premises on the basis of Purcha granted to them under the Bihar Privileged Persons Homestead Tenancy Act. Thus, the defendants have denied the case of default in payment of rent and also the personal necessity of the plaintiffs.

5. The trial court after considering the pleadings of the parties framed the following issues:- …1‰ D;k ftl rjg ls okn dh jpuk dh x;h gS pyus ;ksX; gS ? …2‰ D;k oknh dks okni= izLrqr djus dk vf/kdkj gS rFkk ml okn esa okn gsrq izkIr gS ? …3‰ D;k okn dkyokf/kr] fooU/k] vf/ktO;u ,oa ekSuLohd‘fr ds Patna High Court SA No.72 of 2010 dt.09-04-2013 3 fu;eksa ls okf/kr gS ? …4‰ D;k oknhx.k o izfroknhx.k ds chp edku ekfyd o fdjk;snkj dk fj”rk gS ? ¼5½ D;k oknhx.k okn i= ds ifjf”k’V&I ij ds nqdku ls izfroknhx.k dks gVkdj n[ky izkIr djus dh vKkfIr izkIr dj ldrk gS ? ¼6½ D;k oknhx.k okn i= ds ifjf”k’V&II ds vuqlkj odk;k fdjk;k eks0 15300 :0 dh vKfIr izkIr dj ldrk gS ? ¼7½ D;k oknhx.k dksbZ vU; vuqrks’k izkIr dj ldrk gS ?

6. After hearing the parties, the trial court returned the finding that there existed relationship of landlord and tenant in between the plaintiffs and defendants. It was also found that the defendants defaulted in payment of rent of the suit premises to the plaintiffs. It would be apposite to mention here that there was no issue framed by the trial court on the point of personal necessity and no finding was also recorded in that regard. The suit was therefore decreed on the ground of default in payment of rent.

7. The defendants filed appeal against the aforesaid judgment and decree. The appellate court below, in view of the rival contentions of the parties, framed only one point for determination as follows:- “If the impugned judgment and decree have been passed in accordance with law?”

8. The appellate court thereafter proceeded to examine the maintainability of the suit on the ground of non-joinder of the brother Patna High Court SA No.72 of 2010 dt.09-04-2013 4 of the plaintiffs as parties in the suit and has come to the conclusion that even when the said brother Raghunandan Mahto did not get any share in partition by registered partition deed but still he was a necessary party and the suit suffered from non-joinder of a necessary party. The appellate court thereafter proceeded to examine the case of personal necessity of the plaintiff and has come to the finding that the plaintiffs have failed to establish the personal necessity entitling them for a decree for the eviction of the defendants. There is no appraisal by the appellate court of the issues of relationship of landlord and tenant as well as default in payment of rent and the findings by the trial court recorded on those issues.

9. Mr. Verma, the learned counsel for the appellants has submitted that the appellate court below has not considered the issue of default in payment of rent with regard to which the finding has been recorded in favour of the plaintiffs. It has been urged that as the said finding has not been set aside by the appellate court, the appeal could not have been allowed as the said finding alone was sufficient for grant of decree of eviction in favour of the plaintiffs. Mr. Verma, has pointed out that appellate court has also not considered the crucial issue between the parties with regard to the existence of relationship of landlord and tenant in between them and has proceeded to examine the existence of personal necessity of the plaintiffs even when the suit has Patna High Court SA No.72 of 2010 dt.09-04-2013 5 not been decreed on that ground.

10. Mr. Amit Prakash, learned counsel for respondents has also submitted that the appellate court has committed material irregularity and has failed to exercise his jurisdiction in allowing the appeal without recording any finding on the issue of relationship of landlord and tenant in between the parties as well as on the issue of default in payment of rent.

11. This appeal has been admitted by the order dated

23.04.2012 on the following substantial questions of law:- (1) Whether the judgment of the appellate court below can be sustained when, while reversing the decree of the trial court, the issue of default in payment of rent by the tenants- defendants touched/discussed by the appellate court below? (2) Whether the finding of personal necessity and holding the suit to be not maintainable for want of necessary parties, while reversing the judgment of the trial court, are in accordance with the principles of law and based on evidence? Patna High Court SA No.72 of 2010 dt.09-04-2013 6

12. As the factual matrix of the case would unveil, the suit has been filed for eviction of the defendants on the ground of default in payment of rent and personal necessity. The plaintiffs have asserted that there exists the relationship of landlord and tenant in between the plaintiffs and defendants. It is their case that the defendants initially paid the rent to them but stopped payment of rent after the month of September 2002 and thus became defaulter. The plaintiffs have also pleaded the personal necessity of the suit premises. The defendants, on the other hand, denied the relationship of landlord and tenant and claimed their own title and possession over the suit premises on the basis of Basgit Purcha granted to them under the provisions of Bihar Privileged Persons Homestead Tenancy Act.

13. It is manifest from the judgment of the trial court that the specific issues have been framed with regard to the existence of relationship of landlord and tenant in between the parties and also with regard to the default in payment of rent. The trial court has recorded its findings on those issues in favour of the plaintiffs. It also transpires from the judgment of the trial court that no finding has been recorded with regard to the existence of personal necessity.

14. The appellate court below in the impugned judgment and decree has not even touched the issue of relationship of landlord and tenant and also the issue of default in payment of rent. The conclusions Patna High Court SA No.72 of 2010 dt.09-04-2013 7 of the appellate court below that the brother of the plaintiffs was a necessary party to the suit and therefore the suit suffered from the vice of non-joinder of the necessary party cannot be sustained in view of the well settled principles that even a co-sharer can maintain a suit for eviction wherein the other co-sharers are not necessary parties. Mr. Verma, the learned counsel for the appellants has rightly relied upon the full Bench decision of this Court in the case of Sharfuddin Vs. Bibi Khatja AIR 1988 Pat. 58. The discussion on the issue of personal necessity and the finding thereupon against the plaintiffs by the appellate court below is also not sustainable as the reasoning assigned by the appellate court are not supported by the well settled principles. It has been held in the case of Raj Kumar Khaitan Vs. Bibi Zubaida Khatun AIR 1995 SC 576 that the plaintiffs in a suit for eviction on the ground of personal necessity is not required to specifically state the nature of the business which he proposes to start in the premises from which the eviction of the tenant has been sought. Moreover, when there was no issue or finding by the trial court on the issue of personal necessity and the plaintiffs did not file any appeal or cross objection, there was no occasion for the appellate court below to embark upon the consideration of the existence of personal necessity and non-suit the plaintiffs after recording the finding against them in that regard. In view of the aforesaid facts, the findings recorded by the Patna High Court SA No.72 of 2010 dt.09-04-2013 8 appellate court below with regard to the non-joinder of the parties and personal necessity are hereby set aside.

15. From the aforesaid discussion, it is clear that the appellate court has not properly exercised its jurisdiction in hearing and disposing of the appeal. The learned counsel for both the parties have also agreed that this is a fit case where the matter be remitted back to the appellate court below to hear the appeal afresh and record its findings on the issues decided by the trial court, after reappraisal of the evidence in accordance with law.

16. In the result, this appeal is allowed and the impugned judgment and decree passed by the appellate court below is set aside and the matter is remitted back to the appellate court below to hear the appeal afresh and dispose of the same in accordance with law.

17. As the suit is for eviction under the Bihar Building (Lease, Rent and Eviction) Control Act, it is expected that the appellate court below shall expedite the hearing of this appeal and dispose it of preferably within six months from the date of receipt/production of a copy of this judgment and order. The learned counsel for both the parties have agreed that no unnecessary adjournment shall be taken and the parties will cooperate in the expedition disposal of the appeal. Devendra/- (V. Nath, J)