Saibal Mukherjee and Aruna Mukherjee vs Chhotelal Radheshyam and Others

R.K. Merathia, J.—This second appeal has been preferred by the appellants against the judgment and decree dated 27.2.2008 passed by learned Additional District Judge-FTC-III, Dhanbad in Title Appeal No. 155 of 2005 affirming the judgment and decree dated 30.8.2005 passed by the Additional Munsif-II, Dhanbad in Title (E) Suit No. 16 of 1987.

This suit was filed by the plaintiffs-respondents against the defendants-appellants u/s 11(1) (c) and (f) of the Bihar Building (Lease, Rent & Eviction) Control Act, on the grounds that the suit premises is required for business, and it is also necessary to repair/demolish the building as per the direction of Dhanbad Municipality.

The trial court decreed the suit on both counts. The appellate court affirmed the decree.

Learned Counsel appearing for the appellants submitted that the respondent-landlord could not prove personal necessity as they did not say as to what business they propose to do. He further submitted that no finding has been given on the question of partial eviction. He further submitted that the evidence of both the experts were discarded by the trial court, but even then it was held that the building was in pitiable condition. He further submitted that the appellate court has wrongly affirmed such finding without going into the evidence in detail.

It appears that after considering the respective cases and the evidences brought on the record by the parties, the trial court held that the suit was required by the landlord-respondents for business. With regard to partial eviction, it was held that the tenants-appellants neither pleaded nor brought on record any evidence on this aspect.

It has been held in the case reported in 1993 (1) PLJR 87 Bata India Ltd. v. Dr. Md. Qamruzzama, that the landlord cannot be saddled with the onus of proof regarding partial eviction. In para-6 it has been held as follows:

Para 6 ...In our opinion, the landlord cannot be saddled with the onus of proof in this regard. He having proved that he requires ''the building'' which means the whole suit premises, he cannot be expected or asked to prove by evidence that his need can be satisfied by part eviction. That will amount to asking him to prove the negative. In our opinion, once the landlord has proved the need of the premises, onus shifts on the tenant. The expression "and the tenant agrees to such occupation" strengthens the view that while holding enquiry on the question of partial eviction it is the tenant who has to express his readiness and willingness for part occupation of the premises and to show that the plaintiff''s need can be substantially satisfied by evicting him from only part of the premises and allowing him to continue in occupation of the rest of it. No part of defendant''s evidence on point of partial eviction was brought to our notice we thus fail to understand as to how the petitioner can assail the finding on the question of partial eviction on the ground that there is no specific evidence on the point.

The judgment of Bata India Ltd. (Supra) was followed in the case of Food Corporation of India v. Vishun Properties and Enterprises and Ors. reported in 1995 BBCJ 711 and the SLP against the said decision was dismissed by the Supreme Court.

It further appears that the trial court on the basis of the evidences on record, held that the building was in pitiable condition and that the grounds of eviction u/s 11 (1) (c) and (f) were proved by the landlord. The appellate court also considered the respective cases and the evidences on the record brought by the parties and affirmed the findings of the trial court. It is, inter alia, held that even as per the evidences adduced on behalf of the tenants- appellants, the life of the building was no more.

Though it has been concurrently held that both the grounds of eviction have been proved, but in any event it is settled position that even if one of the grounds of eviction is proved, the landlord is entitled to decree of eviction.

In my opinion, no substantial question of law is involved in this second appeal, which is accordingly dismissed.