SURESH SHARMA Vs. CHINTAMONI SHARMA
LAWS(JHAR)-2008-12-106
HIGH COURT OF JHARKHAND
Decided on December 02,2008

SURESH SHARMA Appellant
VERSUS
CHINTAMONI SHARMA Respondents

JUDGEMENT

M.Y.EQBAL,J. - (1.) his second appeal by the defendant -appellant is directed against the judgment and decree dated 30.11.2005 passed by Additional District Judge, Dhanbad in Title (Eviction) Appeal No. 31 of 2004, whereby he has reversed the judgment and decree passed by the Munsif, Dhanbad in Title (Eviction) Suit No. 54 of 1997. 2. The facts of the case lie in a narrow compass: The plaintiffs -respondents filed the aforementioned eviction suit for eviction of the defendant from the suit property on the ground of bona fide personal necessity. The defendant -appellant is a month to month tenant in respect of portion of holding no. 1134 situated in Dharamshala Road Jharia in the district of Dhanbad. The tenanted premises consist of a shop. The plaintiffs case is that there are six members in her family and the shop premises is in urgent need for her youngest son, who is unemployed and wanted to start a watch shop. It is stated that the shop premises situates in a commercial area which is perfectly suitable for running a watch business. The plaintiffs further case is that the shop premises is 20 in length and 8 in breadth and the entire premises is essential for the purpose to open a shop by her son. The defendant -appellant in spite of request and reminders failed to vacate the premises. 3. The case of the defendant -appellant, on the other hand, is that the plea of personal necessity set up by the plaintiffs is not tenable for the reason that the plaintiff has another shop premises in the said holding, which is lying vacant. The defendants case is that the contention of the plaintiff that another shop is being used by her for residential purpose is imaginary and concocted. According to the defendant, the requirement of the plaintiff is fulfilled by the said vacant shop premises, if she really wants to open a watch shop. Lastly, the defendants case is that the plaintiffs only intension is to evict the defendant in order to let out the premises on higher rent. 4. The Trial Court framed as many as six issues. On the issue of personal necessity, the Trial Court held that the plaintiffs -respondents failed to prove bona fide requirement of the tenanted premises. Aggrieved by the said judgment the plaintiffs -respondents preferred appeal and the appellate court reversed the findings recorded by the trial court and held that the plaintiffs -respondents have been able to prove the case of bona fide personal necessity. Hence this appeal by the defendant -appellant. 5. At the time of admission of the appeal, the following substantial question of law was framed for consideration: - "Whether learned Lower Appellate court has committed an error in setting aside and reversing the findings of learned Trial Court on assumptions and presumptions and without discussing and appraising the evidences of the parties on record.  6. Mr. Manjul Prasad, learned counsel appearing for the appellant, assailed the findings recorded by the appellate Court as being contrary to facts and evidence on record. Learned counsel submitted that the appellate Court has not considered the entire materials on record while reversing the findings of the trial Court. Learned counsel further submitted that the appellate Court has not even recorded a finding with regard to partial eviction. According to the learned counsel the proviso to Section 11(1)(c) of BBC Act mandates the Court to record a finding on the issue of partial eviction. 7. Mr. V. Shivnath learned senior counsel appearing for the respondents, on the other hand, submitted that the appellate Court has fully considered the evidences adduced by the parties on the issue of personal necessity. Learned counsel submitted that even assuming that another shop, which is admittedly in dilapidated condition, is lying vacant, it is the choice of the plaintiff -landlord to occupy the premises, which is most suitable for running business. 8. From perusal of the judgment, it appears that the appellate court proceeded on the basis that the landlord has right to choose which one of the premises is suitable for business and the tenant cannot question such preference. The appellate Court further recorded a finding that there is a clear -cut averment in the plaint that suit premises situates in a commercial area and is perfectly suitable for running a watch business. The appellate Court further considered the evidence of the witnesses that another room is lying vacant from 5 -6 years. The appellate court held that if the shop is lying vacant for last 5 -6 years, the plaintiff -landlady could have let out it to another person on rent. The Court further held that the suit premises are being used by the appellant for residential purposes. 9. As noticed above, the lower appellate Court, after examining and appreciating the entire evidence adduced by the parties, recorded a finding that plaintiff requires the shop premises for establishing her youngest son in business and the shop in question situates in a commercial place and is most suitable for running a watch shop. Since the finding recorded by the appellate court is based on facts and appreciation of evidence fully discussed in the judgment, I do not find any reason to interfere with such findings in second appeal. 10. The next point raised by the appellant is that the court of appeal below has not recorded any finding with regard to partial eviction. As noticed above, the appeal was admitted for hearing only on the substantial question of law, as quoted hereinabove. The appellant has not taken liberty to frame any other substantial question of law. Be that as it may, so far the question of partial eviction is concerned, the plaintiff -respondent, in his pleading has categorically pleaded that the shop premises is 20 in length and 8 in breadth and the entire shop premises is required for running a watch shop. The defendant -appellant neither pleaded in written statement nor adduced any evidence to the effect that part of the shop premises will be sufficient for running a watch business. In absence of any evidence from the side of the defendant -appellant, there is no necessity for the appellate Court to record a separate finding on the issue of partial eviction. 11. Having regard to the above mentioned facts, I do not find any merit in this appeal, which is, accordingly, dismissed.;


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