Patna High Court
Baidyanath SharmaversusSmt. Rama Devi
- Decided
- Disposal
- DISMISSED
- Bench
- RAMESH CHAND MALVIYA
Holding
The High Court held that the trial court correctly applied the statutory test of bona‑fide personal necessity, that the tenant failed to plead partial eviction, and therefore the revision was dismissed.
Summary
The plaintiff, Rama Devi, purchased a plot and leased it to the defendant, Baidyanath Sharma, for a monthly rent of Rs.500 with conditions against sub‑letting and structural changes. The plaintiff later sought eviction on the ground of bona‑fide personal necessity under Section 11(1)(c) of the Bihar Building (Lease, Rent, and Eviction) Control Act, 1982, and the Munsif decreed eviction, ordering the tenant to vacate within 90 days. The tenant filed a civil revision under Section 14(8) of the same Act, contending that the trial court failed to consider the statutory requirement of partial eviction under Section 11(i)(C). The respondent argued that the landlord’s need was genuine, the tenant had not raised partial eviction, and the revisional court cannot re‑appreciate evidence. The High Court held that the trial court had correctly applied the law, that the onus to plead partial eviction lay on the tenant, and that there was no perversity or jurisdictional error. Consequently, the revision was dismissed and the original eviction decree affirmed.
Issues considered
- Whether the trial court erred by not framing or deciding the issue of partial eviction as required by Section 11(i)(C) of the Bihar Building (Lease, Rent, and Eviction) Control Act, 1982.
- Whether the revisional court can re‑appreciate evidence and entertain a fresh plea of partial eviction at the revision stage.
Legislation cited
- Bihar Building (Lease Rent and Eviction) Control Act, 1982 — s. 11(i)(C), 14(8)
Subjects
- eviction
- personal necessity
- partial eviction
- Bihar Building Act
- civil revision
- landlord‑tenant
- bona fide requirement
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.68 of 2022
======================================================
Baidyanath Sharma son of Late Krishna Sharma, Resident of Village-
Hasanpur Surat Barai Tola, P.S.-Patori, District-Samastipur.
... ... Petitioner/s
Versus
Smt. Rama Devi W/o Gopal Prasad Khator, Resident of Village-Hasanpur
Surat Barai Tola, P.S.-Patori, District-Samastipur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Surendra Kishore Thakur, Advocate
Mr. Aditya Kumar Pandey, Advocate
For the Respondent/s : Mr. Shankar Prasad Roy, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
CAV ORDER
14 20-01-2026 This Civil Revision application no. 68 of 2022
has been filed under Section 14(8) of Bihar Building (Lease,
Rent, and Eviction) Control Act, 1982. (hereinafter referred to
as “the Act”) against the judgment and decree dated 27.08.2022
passed by the Munsif, Samastipur in Eviction Suit No. 02 of
2011 whereby and where under the learned trial Court has
decreed the suit directing the defendant/petitioner to vacate the
premises within 90 days from the date of the order otherwise the
plaintiff/respondent would be at liberty to get the delivery of
possession through the process of the court.
2. Heard learned counsel for the petitioner and
learned counsel for the opposite party.
3. Briefly stated, the facts of the case are that the
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plaintiff has purchased a piece of land pertaining to Khata no.
185, Plot no. 692 measuring an area 16 dhur through a
registered Sale Deed dated 07.03.2008 from her father-in-law
namely late Sitaram prasad Khator and constructed structure and
has given on rent to the defendant on monthly rent. Further, the
defendant has taken premises on rent on monthly rent of
Rs.500/- for doing a business of wooden furniture and with the
statement that the defendant will pay monthly rent in the first
week of every month and will not sublet the premises without
consent of the land owner and also will not change structure.
4. It was further case of the plaintiff that a deed
of kirayanama was prepare on stamp paper for 11 months dated
26.09.2008 and again it was re-validated for further 11 months
till 30.09.2010. Further, the defendant appeared and filed his
written statement on 25.04.2011 stating therein that he is the
tenant in the suit premises but there is a dispute between the
three sons of Sita Ram Khatore and it is the plaintiff who
requested the defendant to start a shop in the suit land and the
same was constructed by defendant in July, 2008 and when
dispute arose it was agreed between the co-sharer of plaintiff
that rent will be paid to person who win the case.
5. It was also stated and asserted by the
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defendant that "Kirayanama" dated 26.09.2008 and subsequent
lease deed for the period 01.11.2009 to 21.01.2010 was
executed by the defendant due to fear of eviction and is doing
business as a tenant. The lease deed dated 21.01.2010 was for a
period of five (5) years and plaintiff has no right to evacuate the
suit premises during this period and that defendant has spent Rs.
One lakh seventy thousand towards construction of suit shop,
which money needs to be adjusted and lastly it was prayed that
suit may be dismissed with cost.
6. The trail Court after examining the exhibit-3
held that suit land belonged to Sita Ram Khatore who sold it to
plaintiff and unless the sale deed is set-aside by competent
Court it will be a valid document and therefore,
plaintiff/respondent is the landlord of suit shop and since no
complaint was made earlier before any officer or trial Court,
therefore signature of defendant on lease deed will be presumed
to be valid and legal and it was held that there is relationship of
landlords and tenant between the plaintiff and defendant and
issued no. "Gha" was also decided in favour of plaintiff; it was
held that son of plaintiff i.e., Bikash Kumar wants to run a
medicine shop in suit premises who has deposed before trial
Court as plaintiff witness no. 6 stated that since 2010 he wants
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to run a medicine shop.
7. It was further challenged by the defendant that
plaintiff has a medicine shop at Patawari Bazar which is run by
her husband and sons and held by the trial Court that her son
wants to run his own shop and he has all the right to run his own
shop separate from family business; and this issue was also
decided in favour of plaintiff and it was held that plaintiff
requires the suit shop for bonafide personal necessity and is
entitled to get decree of eviction against defendant/tenant and
lastly it was held that suit as framed is maintainable and plaintiff
has valid cause of action to file the suit and therefore suit was
decreed with a direction to defendant to vacate the suit shop
within 90 days.
8. The learned counsel for the petitioner submits
that from the entire judgment of the learned trial Court, it
appears that neither the learned trial Court has framed an issue
of partial eviction nor the learned trial Court has considered or
whisper a single word with regard to partial eviction that
whether the partial eviction will satisfy the requirement of the
plaintiff/respondent or not and as such it appears that learned
trial Court has failed to consider main ingredients of section
11(i)(C) of the Act.
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8.i. He further submits that while dealing with
the suit for eviction on the ground of personal necessity, it is
onus cast upon the trial Court to frame an issue with regard to
partial eviction or deal with the same, which is a requirement of
Section 11(i)(C) of the Act. He further relied upon the judgment
passed by Co-ordinate Bench of this Court in Shyam Babu Sah
v. Shyam Babu Sah reported in PLJR (2023) 1 Page 61, which
reads as “Bihar Building (Lease Rent and Eviction) Control Act,
1982, Section 11(i)(C) and 14(8) -Revision- Eviction on the
ground of personal necessity and plea that the Court below has
not considered the question of partial eviction as required by
the proviso under Section 11(i)(C) of the act which is mandatory
requirement and no issue of partial eviction was framed by the
Trial Court.”
8.ii. Further, it is submitted that the power under
the proviso to Section 14(8) of the Act is related to the extent of
seeing as to whether the order of eviction is according to law or
not for this related purpose, the Court can reappraise the
evidence. However, on account of reappraise the evidence as an
appellate Court and will not interfere with the order on the
ground that on appreciation of evidence a different view can be
taken and the High Court will interfere if any case it is found
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that the order is based on no evidence or the trial Court has
ignored the material evidence which has effected the fine are
perverse, unreasonable or having been arrived at without
considering statutory requirement for grant of relief. The Trial
Court is bound to consider the mandatory requirement of partial
eviction for which he has to frame such issue there are trial of
suit with opportunity to both the parties to lead evidence on
partial evidence as those judgment and decree of the trial Court
are not sustainable for want of any finding on issue of partial
eviction.
8.iii. The learned counsel further submits that in
the above judgment the learned trial Court has already
considered the judgment reported in AIR 1994 SC page 489
(Krishna Murari Prasad Vs. Mitar Singh) wherein it was
observed –
“It is obvious that the High Court
proceeded on the basis that a presumption
arises that where premises comprises only
one room the proviso to clause -C of section
1 of section 11 is not attracted since it is
application of not practicable since its
application is not practicable. Obviously,
this assumption is fallacious since it is
proposed that the indivisibility of premises
comprises one room.”
8.iv. He further submits that irrespective of its
dimension and even when the room is big enough to permit
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division to satisfy the need of landlord as well as tenant. It is a
question of fact in each case whether such a partial eviction can
be made or not. This inquiry has to be done by the trial Court
after reaching the conclusion that the landlord requirement for
occupation of the premises set up by him has been made out in
failing to do so the courts below overlooked the statutory
requirement and as such it is clear that even in room to of the
subject matter the issue of partial eviction is mandatory.
8.v. The learned counsel has further relied upon
judgment rendered by co-ordinate bench of this Court in Bimal
Kishore Gupta Vs. Smt. Beena Devi & Ors. reported in PLJR
(2001) 2 page 837, where it has been held that it is duty cast
upon the Court to consider the question of partial eviction even
though no such plea is taken by the tenant. He further submits
that from the aforesaid circumstances and consideration of the
judgment it appears that the trial Court has not given any sight
on the issue of partial eviction and has failed to consider the
mandatory requirement under Section 11(i)(c) of the Act.
8.vi. Further in many cases wherein the issue of
partial eviction was not considered, Hon’ble High Court has
remanded the case to the learned trial Court for fresh
consideration after setting aside the judgment. He further
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contended that under the aforesaid circumstances the judgment
and decree passed by the learned trial Court is bad without
consideration of the mandatory requirement and is fit to be set
aside.
9. Learned counsel for the respondent submits
that the eviction suit filed under Section 11 (1) (c) of the BBC
Act, 1982 was rightly decreed by the learned trial Court on the
ground of bona fide personal necessity. The relationship of
landlord and tenant, rate of rent, and occupation of the suit
premises by the defendant/petitioner are all admitted facts. The
plaintiff/respondent specifically pleaded in the plaint that the
suit premises is reasonably and in good faith required for their
own residence and professional use. Based on such evidence,
the trial Court recorded a categorical finding that the plaintiffs’
need is genuine, reasonable, and in good faith. These findings
are based on evidence and are neither perverse nor illegal and
therefore do not warrant interference in revisional jurisdiction.
9.i. Learned counsel for the respondent further
submits that the defendant/petitioner failed to raise any plea
regarding partial eviction either in the written statement or
during cross-examination of the plaintiff witnesses, nor did he
lead any evidence to show that the plaintiff requirement could
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be satisfied by partial eviction. In law, once the landlord proves
bona fide personal necessity, the onus shifts upon the tenant to
plead and prove that such need can be met by partial eviction.
Having failed to do so at the trial stage, the defendant/petitioner
cannot be permitted to raise the issue for the first time at the
revisional stage.
9.ii. He further submits that the plea of partial
eviction must be specifically raised and proved by the tenant at
the time of trial and that revisional courts cannot re-appreciate
evidence or act as a second court of appeal. It was emphasized
that the revisional jurisdiction is limited, as laid down by the
Constitution Bench in Hindustan Petroleum Corporation Ltd.
v. Dilbahar Singh reported in (2014) 9 SCC 78. He next
submits that it may not be out of place to mention here that this
Hon'ble Court in a number of cases has said it in so many words
that issue of "Partial eviction" has to be raised by
defendant/petitioner in its written statement and in his
deposition and issue of partial eviction can't be decided "Suo
moto" reported in 2010 (4) PLJR 553. Similarly, in judgment
reported in 2010 (3) PLJR 483, it was held that "neither in
Evidence nor in pleading defendant stated that requirement of
plaintiff will be satisfied by partial eviction then this issue can't
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be raised and the onus is upon defendant to prove the same.”
Other judgment on the point is 2014 (4) PLJR 476 and 2012 (3)
PLJR 649; 2013 (2) PLJR 491.
9.iii. In view of the above submissions, the
learned counsel for the respondents prayed that the Civil
Revision be dismissed, as the impugned judgment and decree
are based on proper appreciation of evidence and settled
principles of law, and suffer from no illegality or jurisdiction
error.
10. After due consideration of the pleadings of
the parties, the issues framed for adjudication, and the oral as
well as documentary evidence adduced on behalf of both sides,
and upon hearing the learned counsel for the parties, the learned
trial Court, by judgment dated 27.08.2022 passed in Eviction
Suit No. 02 of 2011, was pleased to allow the suit.
11. The learned trial Court recorded a categorical
finding that the plaintiff/respondent is the owner and landlord of
the suit premises and that the relationship of landlord and tenant
between the parties stands admitted. It was further held that the
rate of monthly rent and the occupation of the petitioner as a
tenant in the suit premises were not in dispute. The learned trial
Court, upon appreciation of the evidence on record, accepted the
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case of the plaintiff/respondent that the suit premises is
reasonably and bona-fide required for their own use and
occupation. The learned trial Court further accepted the
evidence that the second son of the plaintiff/respondent need to
start a separate business in the suit premises and that the
location of the suit premises is suitable for such purpose.
12. Upon an overall appreciation of the
pleadings, evidence and material available on record, the
learned trial Court concluded that the plaintiff/respondent had
successfully established their entitlement to a decree of eviction
under Section 11(1)(c) of the BBC Act, 1982. Consequently, the
suit was decreed on contest in favour of the plaintiff/respondent
and against the defendant/petitioner. The petitioner was directed
to vacate the suit premises described in Schedule-I of the plaint
within a period of ninety days from the date of the judgment,
failing which the plaintiff/respondent was granted liberty to
obtain eviction of the petitioner through the process of the
Court. It was further ordered that the costs incurred in executing
the decree shall be recoverable from the defendant/petitioner.
The learned trial Court, however, directed that there shall be no
order as to costs.
13. At the outset, it is necessary to reiterate that
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the scope of revisional jurisdiction under the said provision is
extremely limited as the present Civil Revision has been
preferred under Section 14 (8) of the BBC Act, 1982. The
revisional Court does not sit as a Court of appeal and cannot re-
appreciate evidence merely because a different view is possible.
Interference is permissible only when the findings of the learned
trial Court are shown to be perverse, based on no evidence, or
suffering from jurisdictional error. The legal position in this
regard stands conclusively settled by the Constitution Bench of
the Hon’ble Supreme Court in Hindustan Petroleum
Corporation Ltd. v. Dilbahar Singh (supra). In paragraph 43,
the Hon’ble Supreme Court held that:
“The revisional court does not have the
power to re-appreciate evidence. The
jurisdiction is confined to examine whether
the findings of fact recorded by the court
below are according to law and do not
suffer from perversity or jurisdictional
error.”
In the present case, the learned trial Court has framed specific
issues, appreciated oral and documentary evidence adduced by
both sides, and gave reasoned findings. No perversity or
jurisdictional error has been demonstrated warranting
interference.
14. Coming to the core issue of bona fide
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personal necessity, the law is well settled that the landlord is the
best judge of his requirement, and the Court cannot substitute its
own wisdom for that of the landlord. The Hon’ble Supreme
Court in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai
Prabhulal, reported in (2005) 8 SCC 252, held in paragraph 15
that:
“It is always the prerogative of the landlord
to decide how and in what manner he
should live or conduct his business. The
tenant cannot dictate the terms to the
landlord.”
15. The learned trial Court, upon appreciation of
evidence, accepted this requirement as genuine and bona fide.
The nature and test of bona fide requirement have been
elaborately explained by the Hon’ble Supreme Court in Shiv
Sarup Gupta v. Dr. Mahesh Chand Gupta, reported in (1999)
6SCC 222, paragraph 11 observed that:
“The requirement of the landlord must be
honest, genuine and conceived in good
faith. It need not be a dire necessity but
must be a real and sincere need.”
Applying the above test, the learned Trial Court has rightly
concluded that the respondents’ need is honest and real, and not
a mere pretext for eviction.
16. The contention of the petitioner regarding
partial eviction is wholly misconceived. As learned counsel for
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the petitioner relied upon the judgment rendered by co-ordinate
bench of this Court in Bimal Kishore Gupta Vs. Smt. Beena
Devi & Ors. (supra), where it has been held that it is duty cast
upon the Court to consider the question of partial eviction even
though no such plea is taken by the tenant. It is a settled
principle that once the landlord establishes bona fide
requirement, the burden shifts upon the tenant to plead and
prove that such requirement can be satisfied by partial eviction.
In Rahabhar Productions Pvt. Ltd. v. Rajendra K.Tandon,
reported in (1998) 4 SCC 234, the Hon’ble Supreme Court held
in paragraph 18 that:
“Once the landlord establishes bona fide
requirement, the onus shifts on the tenant to
prove that partial eviction would satisfy
such requirement.”
Since the plea of partial eviction was neither taken in the Trial
Court, the onus shifts on the tenant to prove that partial eviction
would satisfy such requirement. In the present case, as rightly
noted by the learned trial Court, the petitioner neither raised any
plea of partial eviction in the written statement nor led any
evidence to substantiate such a plea. In absence of pleading and
proof, the tenant cannot resist eviction on the said ground and
the onus is upon the petitioner/defendant to prove that partial
eviction would satisfy such requirement.
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17. On the core issue of bona fide and reasonable
personal necessity, the law gives primacy to the landlord’s
assessment of his own need. In Prativa Devi v. T.V. Krishnan,
reported in (1996) 5 SCC 353, the Hon’ble Supreme Court
categorically held in paragraph 2 that the landlord is the best
judge of his residential requirement and the tenant cannot
dictate the manner of his living. Further, in Ramashray Singh v.
Bindeshwari Prasad, reported in 2009 (3) PLJR 91, paragraph
10, it was held that requirement of premises for dependent
family members is a legitimate and bona fide requirement.
18. The contention for partial eviction has been
consistently followed by co-ordinate bench of this Court in
PLJR 2005 (3) 719, PLJR 2013 (2) 491, PLJR 2005 (3) 19, and
PLJR 2016 (4) 20, wherein it has been held that the plea of
partial eviction must be specifically pleaded and proved by the
tenant and cannot be permitted to be raised for the first time at
the revisional stage. With regard to the existence of cause of
action, it is settled law that cause of action is not confined to a
single event but consists of a bundle of facts which may arise at
different stages. The Hon’ble Supreme Court in A.B.C.
Laminart Pvt. Ltd. v. A.P. Agencies, reported in (1989) 2 SCC
163, held in paragraph 12 that cause of action comprises all
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those facts which the plaintiff must prove to obtain relief and
may arise partly at one place and partly at another.
19. Further, in Sopan Sukhdeo Sable v.
Assistant Charity Commissioner, reported in (2004) 3 SCC
137, the Supreme Court held in paragraph 15 that the cause of
action crystallizes when the right to sue accrues, particularly
upon termination of the legal relationship. Applying this
principle, the co-ordinate bench of this Court in Ram Prasad v.
Sita Ram, reported in 1998 (2) PLJR 12, held in paragraph 7
that issuance of a notice terminating tenancy furnishes a fresh
and valid cause of action for eviction. From the aforesaid
principles it is clear that the finding of the learned trial Court
that the respondents had a valid and continuing cause of action.
20. The contention raised by the learned counsel
for the petitioner relating to the personal need of the
Respondent’s son, wherein it is well settled principle laid down
by Hon’ble Supreme Court in Gaya Prasad v. Pradeep
Srivastava, reported in (2001) 2 SCC 604, held in paragraph 10:
“Subsequent events which strengthen the bona fide requirement
of the landlord can be taken into consideration.” In the present
case, the primary ground of eviction remains the personal
necessity of the Respondent.
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21. Upon an overall consideration of the
pleadings, evidence, and settled principles of law, this Court
finds that the learned trial Court has exercised its jurisdiction
properly, applied the correct legal tests, and recorded findings
supported by evidence. The impugned judgment does not suffer
from any illegality, perversity, or jurisdictional infirmity so as to
warrant interference in exercise of revisional jurisdiction.
22. In view of the foregoing discussion, this
Court is of the considered opinion that the learned trial Court
has correctly appreciated the pleadings, evidence and the settled
principles of law governing eviction on the ground of bona fide
personal necessity under Section 11 (1) (c) of the BBC Act,
1982. The findings recorded by the learned trial Court regarding
the existence of landlord–tenant relationship, the bona fide and
reasonable requirement of the respondents for the suit premises,
and the non-feasibility of partial eviction are based on cogent
evidence and do not suffer from any perversity, illegality or
jurisdictional error.
23. This Court further finds that the scope of
interference under Section 14 (8) of the B.B.C. Act is limited,
and the present Civil Revision does not disclose any ground
warranting interference with the well-reasoned judgment and
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decree dated 27.08.2022 passed in Eviction Suit No. 02 of 2011.
The contentions raised on behalf of the petitioner are devoid of
merit and do not persuade this Court to take a different view.
Accordingly, the present Civil Revision No. 68 of 2022 is
dismissed. The judgment and decree dated 27.08.2022 passed by
the learned Munsif, Samastipur in Eviction Suit No. 02 of 2011
are hereby affirmed. All pending IA’s with regard to the civil
revision no. 68 of 2022 is also disposed off.
24. The petitioner/defendant is directed to vacate
and hand over peaceful possession of the suit premises, as
described in the plaint, to the respondents/plaintiffs within a
period of ninety (90) days from passing of the order of this
Court otherwise respondents will have right to vacate the suit
premise as per process of law.
(Ramesh Chand Malviya, J)
Mayank/-
U
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