R.K.MERATHIA, J. - (1.) ON 16.4.2009 this second appeal was admitted on the following substantial questions of law: Whether the impugned judgment of the learned lower appellate court would amount to partition of the property, while considering the issue of partial eviction?
(2.) MR . P. K. Prasad, learned senior counsel, appearing for the plaintiffs -landlord/appellants submitted as follows. The plaintiffs filed this suit for eviction on the ground of default and personal necessity. The suit was dismissed. The plaintiffs filed appeal. The lower appellant court held that the plaintiffs had personal necessity of the suit premises and then it remanded the matter back to the trial court for giving a finding on partial eviction. The trial court after taking evidence and hearing the parties held that the partial eviction will not reasonably satisfy the requirement of the landlord and accordingly granted decree for the entire suit property. The tenant/defendant - respondent filed appeal against such findings. The lower appellate court held that the frontage of the suit premises is 13 ft. 9 inch and the length is 83 ft. and at the back the width is 17 ft. 9 inch. Thus, the total area comes to 1319.7 Sq. ft. out of which more than half area is vacant land and is not in use. The lower appellate then held as follows: "(i) That out of total 1319.7 Sq. ft. area of the suit premises defendant as tenant will continue to hold the 5' in which (east -west) and 15' in length (north -south) i. e, total 75 sq. ft. constructed area by eastern -southern corner or by mutual consent western -southern corner for running his business of Dabur product in his shop. Defendant will vacate remaining entire area of the suit premises either constructed area or vacant land in favour of the plaintiffs on the ground of partial eviction within two months, failing which respondents -plaintiffs can adopt legal recourse on the cost of the appellant." He further submitted that while considering the partial eviction, the court cannot direct partition of the property. He relied on a judgment reported in 1985 PLJR 390 -Mrs. Veena Rani and others V/s. Mrs. Ishrati Amanullah and others. Mr. Rajeeva Sharma, learned senior counsel, appearing for the respondent, on the other hand, supported the impugned order.
(3.) AS already noticed above, it was held that the appellants required the suit premises for their own use for the purpose of restaurant business. That finding, having not been challenged by the respondent, has become final. The trial court rightly held that the partial eviction will not satisfy the requirement of the landlord. Lower appellate court was not all justified in holding that out of a frontage of 13 ft. 9 inch, the defendant tenant will continue to hold the 5 ft. width and 15 ft. length of constructed area. This amounts to partition of the suit property. In the Division Bench judgment - Veena Rani (Supra) it has been held that the power to pass order for partial eviction cannot be used in a manner as if the court has to partition the building between two co -sharers. In the circumstances, the judgment dated 11.5.2004 passed by the lower appellate court in Title (Eviction) Appeal No. 19 of 1998 is set aside and the judgment dated 16.9.1998 passed by the learned Subordinate Judge at Deoghar in Title Eviction Suit No. 22 of 1993 is upheld. The respondent is directed to vacate the suit premises within 45 days. However, no order as to costs. ;