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Satya Narayan Thakur vs Santosh Kumar Sahu on 29 February, 2024

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Patna High Court

Satya Narayan Thakur vs Santosh Kumar Sahu on 29 February, 2024

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.4 of 2015

1.1. Lalita Devi Widow of Late Satya Narayan Thakur, Permanent resident of
Mohalla – Panjiyar Tola, Ward No. 11, P.S. – Rosera, District – Samastipur.
1.2. Raj Kishor Thakur, S/o Late Satya Narayan Thakur, Permanent resident of
Mohalla – Panjiyar Tola, Ward No. 11, P.S. – Rosera, District – Samastipur.
1.3. Dharmveer Thakur, Son of Late Satya Narayan Thakur, Permanent resident
of Mohalla – Panjiyar Tola, Ward No. 11, P.S. – Rosera, District – Samastipur.
1.4. Ravi Kishor Thakur, Son of Late Satya Narayan Thakur, Permanent resident
of Mohalla – Panjiyar Tola, Ward No. 11, P.S. – Rosera, District – Samastipur.
1.5. Kalyani Devi W/o Shailendra Kumar R/o Town/ Mohalla- Jamui, P.S.-
Jamui Town, District- Jamui.
1.6. Kalpana Devi W/o Vijay Thakur R/o Mohalla- Sonar Tola, Lal Bagh, P.S.-
Darbhanga Town, District- Darbhanga.

… … Petitioner/s
Versus

Santosh Kumar Sahu S/o Late Sukhdeo Sahu Resident of Mohalla Dagwar
Toli, Ward No. 10, under Town Rosera, P.S. Rosera, District Samastipur.

… … Respondent/s

Appearance :
For the Petitioner/s : Mr.Vinay Kumar Mishra, Advocate
For the Respondent/s : Mr. Shailendra Kumar, Advocate
Mr. Rajiv Kumar Sinha, Advocate

CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 29-02-2024

The instant civil revision petition has been filed under

Section 14(8) of Bihar Buildings (Lease, Rent Eviction)

Control Act, 1982 (hereinafter ‘the BBC Act’) against the

judgment dated 20.11.2014 and decree dated 02.12.2014 passed

by learned Munsif, Rosera in Eviction Suit No. 09 of 2001,

whereby and whereunder the learned Munsif directed the

defendant/petitioner to handover the vacant possession of the
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
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suit premises to the plaintiffs/opposite party.

2. Briefly stated, the facts of the case are that the

plaintiff/opposite party filed Eviction Suit bearing No. 09 of

2001 in the court of learned Munsif, Rosera seeking relief of

grant of decree of eviction from the suit premises, a shop, of the

original petitioner, who was defendant before the learned court

below and have subsequently been substituted by their legal

heirs in the present petition. In his plaint, the plaintiff set forth

his case that the defendant came into possession of the suit

premises in capacity of the tenant of the father of the plaintiff

since 1982 and he had been running a business of repairing and

making ornaments of gold and silver. The plaintiff’s father died

on 06.07.1996 and thereafter, the defendant approached the

plaintiff on 10.07.1997 for letting out the said portion to him so

that he may continue his business in the suit premises. The

defendant agreed to the fresh terms and conditions including

enhancement of rent to the rate of Rs.600/- per month with

another stipulation that whenever the plaintiff would need the

suit house for his personal necessity then he would vacate the

premises. On the aforesaid terms and conditions, the defendant

kept on paying rent regularly till 30.11.2001. As the plaintiff felt

the necessity of the suit premises as he wanted to start his own
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
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business, he asked the defendant to vacate the suit premises on

30.11.2001

but the defendant did not vacate the suit premises

and finally refused to vacate the premises on 21.12.2001 and

cause of action arose for filing the suit.

3. The defendant entered his appearance denying the

claim of the plaintiff that he is tenant of the plaintiff. The

defendant submitted that he was tenant of late Sukhdeo Sahu

and after his death his widow Most. Bholi Devi, who inherited

the property, became the landlady to whom he had been

regularly paying the rent, initially at the rate of Rs.100/- per

month which was subsequently enhanced to the rate of Rs.200/-

per month. The defendant claimed that the plaintiff was not the

son or legal heir of late Sukhdeo Sahu and as such, there was no

landlord and tenant relationship between the plaintiff and the

defendant. That apart there was no personal necessity of the

plaintiff as he had been running his shop in the same building

and only on account of business rivalry, he wanted to get the

defendant evicted from the suit premises.

4. The learned Munsif, having regard to the

evidence adduced on behalf of the parties decreed the suit in

favour of plaintiff and directed the defendant to vacate the

disputed house mentioned in Schedule of the plaint within 60
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
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days and handover the possession in favour of the plaintiff.

Aggrieved by the impugned judgment and decree, the instant

civil revision has been filed by the defendant/petitioner.

5. Learned counsel for the defendant/petitioner

submitted that the learned Munsif failed to appreciate the case

of the parties in proper perspective and went on to record his

finding on surmises and conjectures. The learned Munsif relied

on such evidence of the plaintiff which per se is not admissible

in the eye of law. Learned counsel further submitted that learned

trial court wrongly recorded a finding of landlord and tenant

relationship between the parties placing its reliance on Ext.1

which is an adoption deed holding that from the said document

it was apparent that plaintiff was adopted son of original

landlord, late Sukhdeo Sahu. Learned counsel further submitted

that but the said document, if scrutinized cautiously, will show

that the adoption is not legal in the eye of law and plaintiff was

not legally adopted son/heir of original landlord. Hence, for this

reason he was not entitled to maintain eviction suit because the

widow of original landlord was alive at the time of filing of the

suit and even thereafter. Learned counsel while relying to Ext.1

which is a deed of adoption pointed out that this was executed

on 23rd of September, 1993 and admittedly, the plaintiff was
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
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aged more than 15 years. Section 10 of Hindu Adoptions and

Maintenance Act, 1956 provides that a person shall be capable

of being taken in adoption only if he or she has not completed

the age of 15 years. So the adoption was not a valid adoption

under the provisions of law. If the plaintiff was not an adopted

son of late Sukhdeo Sahu he has no right to maintain a suit for

eviction on the ground of personal necessity against the

defendant/ petitioner. Further, at the time of filing of the eviction

suit, wife of the original landlord was alive and the suit ought to

have been filed in her name. Moreover, it is also apparent from

Ext. 5 that widow Bholi Devi was alive in 2014 but she was not

examined on the point of plaintiff being her adopted son. At the

same time, in Ext. 5 Bholi Devi did not talk about adoption

deed. The learned trial court misconstrued Ext. 5 and placed its

reliance on it ignoring the fact that it was only an affidavit

sworn by Most. Bholi Devi but she did not came forward to get

herself examined, as such this evidence was not admissible in

the eye of law. Hence, no reliance can be placed on the said

document and adverse inference must be drawn against the

plaintiff. In this regard learned counsel relied on a decision of

the Hon’ble Supreme Court in the case of Mussauddin Ahmed

Vs. State of Assam reported in AIR 2010 SC 3813. Learned
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
6/18

counsel further relied on the Hon’ble Supreme Court decision in

the case of Tribhuvanshankar Vs. Amrutlal, reported in

(2014)2 SCC 788 on the proposition that landlord tenant

relationship is sine qua non for proceeding of an eviction suit.

But the learned trial court did not consider this issue in proper

perspective and without sufficient evidence, considering the

plaintiff as adopted son of late Sukhdeo Sahu, held that there

was relationship of landlord and tenant between the plaintiff and

defendant. The learned trial court ought to have held that suit

was not maintainable after the death of Bholi Devi.

6. Learned counsel further submitted that the

learned trial court did not consider that the plaintiff did not

require suit premises for his personal necessity rather for

expansion of his business, he wanted to get the defendant

evicted. The learned trial court failed to record bonafide

requirement by the plaintiff. The learned trial court proceeded

on the premises that since the plaintiff pleaded in his case that

he wanted to expand his business and the same was treated as

personal necessity whereas this aspect should have been

examined and finding should have been recorded.

7. Learned counsel further submitted that it is the

settled principle of law that even if the partial eviction is not
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
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pleaded, a duty is cast upon the court to frame issue of partial

eviction on the basis of material available but in the present case

no issue with regard to partial eviction of the suit premises has

been framed and for this reason the impugned judgment cannot

be sustained. The learned counsel relied on a decision in the

case of Shyambabu Sah Vs. Shyam Babu Sah reported in

2022(6) BLJ 448 to stress this fact. Thus, learned counsel

submitted that the judgment of the trial court is illegal, improper

and not sustainable in the eyes of law.

8. Per contra, learned counsel appearing on behalf

of the plaintiff/opposite party vehemently contended that there is

no illegality or infirmity in the impugned judgment and hence,

the same does not require any interference by this Court.

Learned counsel further submitted that this revision is directed

against the judgment of eviction suit and not a title suit and the

revision is to be decided within four corners of the BBC Act.

Learned counsel pointed out that Section 2(f) of the BBC Act

records definition of landlord and submitted that even an agent

can maintain a suit for eviction and in the present case earlier

Civil Revision No. 1211 of 2004 was filed and vide order dated

03.01.2005 this Court held that even an agent who is collecting

the rent can maintain a suit for eviction. Learned counsel further
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
8/18

submitted that Ext.1 has been assailed on the ground that when

the said deed was executed, the plaintiff was aged more than 15

years. But the said contention is without any substance as

adoption took place in 1973 and Ext. 1 was just recital of the

same. Since the recital of adoption is by way of a registered

document there would be presumption of its correctness so long

as there is no rebuttal and it is for the party who disputes the

adoption to prove to the contrary.

9. Learned counsel further submitted that there has

been no pleadings of the defendant with regard to partial

eviction. A decision of this High Court in the case of M/s. Bata

India Ltd. Vs. Dr. Qamuzzma reported in 1993(1) PLJR 87 has

held that once a landlord has proved the need of the premises,

the onus shifts to the tenant to show that plaintiff’s needs can be

substantially satisfied by part eviction of the tenant. The court

further held that the landlord cannot be saddled with the onus of

proof in this regard. Learned counsel reiterated that there has

been neither pleadings nor evidence on behalf of the defendant

on the point of partial eviction. Learned counsel placed reliance

on the decision in the case of Hira Lal Das Anr. Vs. Loknath

Newatia, reported in 2014(4) PLJR 476 that although the court

is require to consider partial eviction even if there is no pleading
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
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but there must be evidence available on record when onus is on

the defendant to prove that need of plaintiff would be satisfied

substantially by partial eviction. Further the court held that in

view of evidence and pleadings of the defendant that the suit

premises is a shop, it is not a rented house where the present

plaintiff’s requirement will be satisfied by partial eviction.

10. Learned counsel further submitted that the learned

Single Judge of this Court in the case of Khalid Ahmad Khan

@ Khalil Ahmad Vs. Prakash Kumar Anr., reported in

2017(1) PLJR 477 considered the ambit and scope of the

revisional jurisdiction and quoted paragraph 45 of the

Constitution Bench decision of the Hon’ble Supreme Court in

the case of Hindustan Petroleum Corporation Ltd. Vs.

Dilbahar Singh to stress the fact that in order to satisfy itself to

the regularity, correctness, legality or propriety of the impugned

decision or the order, the High Court shall not exercise its power

as an appellate power to re-appreciate or re-assess the evidence

for coming to a different finding on facts. Learned counsel

submitted that in revisional jurisdiction the court may examine

whether the order impugned suffers from procedural illegality or

irregularity.

11. Learned counsel for the plaintiff/opposite party
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
10/18

further submitted that in the present case on account of default

in payment of rent as the defendant was required to deposit the

rent every month but the defendant deposited the rent for five

years in the learned trial court and thereafter stopped paying the

rent and for this reason the defence of the defendant is fit to be

struck off. The Hon’ble Supreme Court in the case of

Manmohan Kaur Vs. Surya Kant Bhagwani, reported in AIR

1989 Supreme Court 291 held that if the delay is not explained

or the explanation is one which is not acceptable to the court

then the court must strike off the defence. There is no discretion

under Section 13 of the BBC Act and same proposition was

earlier available in the previous Act Bihar Building (Lease, Rent

and Eviction) Control Act, 1947 in Section 11A and this Court

in the case of Chaganmal Jain Vs. Mali Ram Mantri Anr.,

reported in BBCJ 1973 IV 157 held that the provision contained

in Section 11A is mandatory. On the aforesaid grounds, learned

counsel for the plaintiff/opposite party submitted that the present

petition is devoid of merit and same be dismissed.

12. By way of reply the learned counsel for the

defendant/petitioner submitted and he also relies on paragraph

45 of the Hindustan Petroleum Corporation Ltd. case (supra)

since the Hon’ble Supreme Court has held that a finding of fact
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
11/18

recorded by court/ authority below, if perverse or has been

arrived at without consideration of the material evidence or such

finding is based on no evidence or misreading of the evidence or

is grossly erroneous that would if allowed to stand, would result

miscarriage of justice, is open to correction because it is not

treated as a finding according to law. The Hon’ble Supreme

Court has further held that in that event, the High Court, in

exercise of power of revisional jurisdiction, shall be entitled to

set aside the impugned order such being not legal and proper. In

the present case there has been no consideration of evidence and

this makes the judgment of the learned trial court perverse.

Further no issues were framed for partial eviction and this also

makes the judgment of the learned trial court bad in the eye of

law. Learned counsel rebutted the claim of the learned counsel

for the plaintiff/opposite party that the defendant has failed to

deposit the rent. However, he conceded that all rents were

deposited prior to COVID-19 period and thereafter there has

been delay in depositing the rent. Learned counsel further

submitted even if the defence of the defendant is struck off he

can still challenge the title of the plaintiff and relationship of

landlord and tenant and relied on a decision of the Patna High

Court in the case of Mahabir Ram Vs. Shiva Shankar Prasad
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
12/18

reported in AIR 1968 Patna 415.

13. I have given my thoughtful consideration to

rival submission of the parties. The judgment of the learned trial

court has been assailed mainly on three grounds that there was

no landlord tenant relationship between the plaintiff and the

defendant as plaintiff was not validly adopted son of the original

landlord of the defendant. Secondly, personal necessity and

bonafide requirement were not considered by the learned trial

court and thirdly, partial eviction was not examined.

14. The main focus of argument of the defendant/

petitioner is on Ext.1 that it is not a valid adoption deed in terms

of Section 10 of the Hindu Adoptions and Maintenance Act,

1956 which reads as under:-

10. Persons who may be adopted.– No person
shall be capable of being taken in adoption
unless the following conditions are fulfilled,
namely:-

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there
is a custom or usage applicable to the parties
which permits persons who are married being
taken in adoption;

(iv) he or she has not completed the age of
fifteen years, unless there is a custom or usage
applicable to the parties which permits persons
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
13/18

who have completed the age of fifteen years
being taken in adoption.”

15. Obviously the provision says for being adopted

a person should not have crossed the age of 15 years but it is not

the case of the plaintiff/opposite party that he was adopted in

1993 rather he has tried to show that he was taken as adopted

son way back in 1973 and a statement to this effect was made by

the registered deed Ext. 1. Moreover, Section 10 nowhere says

that adoption is to be in writing. However, without going into

the issue of validity of adoption, it is to be taken note of that a

number of documents have been filed on record including the

date of birth certificate of Bihar School Examination Board of

1990 (Ext.6), registration certificate of of the shop (Ext. 8), copy

of admission card of Bihar Intermediate Examination, 1992

(Ext. 10) and bill of Bhart Sanchar Nigam Limited dated

16.02.2004 (Ext. 14). All these documents show that the name

of the father of the plaintiff was Sukhdeo Sahu and for all

purposes it seems he was being treated as son of Sukhdeo Sahu,

the original landlord of the original defendant.

16. Further Section 2(f) of the BBC Act reads as

under:-

(f) “Landlord” includes the person who for
the time being is receiving or is entitled to
receive, the rent of the building, whether on
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
14/18

his own account or on behalf of another, or
on account or on behalf of for the benefit of
himself and others or as an agent, trustee,
executor, administrator, receiver, guardian
or who would so receive the rent, to be
entitled to receive the rent, if the building
were let to a tenant.”

Obviously landlord includes the person, who is

entitled to receive the rent as an agent, trustee, executor,

administrator, receiver, guardian on behalf of others. The status

of plaintiff was also admitted by the widow of original landlord

in Ext. 5. In Civil Revision No. 1211 of 2004 and a learned

Single Judge of this Court has occasion to consider the affidavit

of widow of original landlord wherein she recorded that her son

was looking after the house and collecting the rent.

Further in eviction suit the question whether the

plaintiff was validly adopted son of late Sukhdeo Sahu or not

could not be decided as declaration of status of plaintiff as

adopted son of late Sukhdeo Sahu could be the subject matter of

a Civil Court of competent jurisdiction. For the purpose of

present case, I am of the considered opinion that sufficient

material is available on record to show that the plaintiff would

fall under the definition of landlord in Section 2(f) of the BBC

Act. The Hon’ble Supreme Court in the case of Rajendra

Tiwary Vs. Basudeo Prasad reported in AIR 2002 SC 136 held
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
15/18

that enquiry into title of the plaintiff is beyond the scope of the

court exercising jurisdiction under the Act. Declaration of status

of plaintiff cannot be sought in a proceeding under the BBC Act.

Therefore, I do not find much merit in the submission of learned

counsel for the defendant/petitioner challenging the landlord

tenant relationship only on the ground that the plaintiff/opposite

party could not be considered as a validly adopted son of the

original landlord. I do not find any perversity in the

consideration of evidence made on this account by learned trial

court. For the reason the decision relied on by the learned

counsel for the defendant/petitioner in the case of

Tribhuvanshankar and Mahabir Ram (supra) is not applicable

in the facts of the case.

17. Regarding the personal necessity and bonafide

requirement, the learned trial court farmed Issue No. 6 and the

learned trial court after discussion of evidence in this regard

recorded its finding that the plaintiff was having personal

necessity and he has sought eviction on bonafide requirement.

18. Though no issue on partial eviction was framed

but from the pleadings and evidence I find that the area of

disputed shop has been mentioned as 14’x9’5 1/2″ 132 ½ sq.

feet and 9’5 1/2″x 2′ and considering its small size, no question
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
16/18

arises for its further division, the defendant/petitioner cannot

claim himself to be a co-sharer so as to demand partition of even

smallest disputed property. Further the defendant has failed to

prove partial eviction in his favour and the submission made on

behalf of the learned counsel is of no use of help to the case of

defendant/petitioner. For this reason the decision relied by the

learned counsel is not supportive of the case of the

defendant/petitioner.

19. Further the fact is not lost sight of that this Court

is not exercising the appellate jurisdiction and the instant

petition has been filed under Section 14(8) of the BBC Act,

which reads as under:-

“14(8) No appeal or second appeal shall lie
against an order for the recovery of
possession of any premises made in
accordance with procedure specified in this
section:

Provided that on an application being made
within sixty days of the date of the order of
eviction the High Court may for the purpose
of satisfying itself that an order under the
section is according to law, call for the
records of the case and pass such order in
respect thereto as it thinks fit.”

Obviously the mandate of this Court is only to the

extent of satisfying itself that an order under this section is
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
17/18

according to law. For this reason, this Court will not re-

appreciate or re-assess the evidence for coming to a different

finding on facts unless there is some perversity.

The Hon’ble Supreme Court in the case of Hindustan

Petroleum Corporation Ltd. (supra) held in paragraph 45

which is quoted as under:-

“Para 45. … The High Court is entitled
to satisfy itself the correctness or legality
or propriety of any decision or order
impugned before it as indicated above.
However, to satisfy itself to the regularity,
correctness, legality or propriety of the
impugned decision or the order, the High
Court shall not exercise its power as an
appellate power to re-appreciate or re-
assess the evidence for coming to a
different finding on facts. Revisional power
is not and cannot be equated with the
power of reconsideration of all questions
of fact as a court of first appeal. Where the
High Court is required to be satisfied that
the decision is according to law, it may
examine whether the order impugned
before it suffers from procedural illegality
or irregularity…”

So in view of the law settled by the Hon’ble

Supreme Court, this Court would not like or venture in an

uncharted territory if it does not finding perversity or manifest
Patna High Court C.R. No.4 of 2015 dt.29-02-2024
18/18

illegality in the impugned order.

20. In the light of the aforesaid discussion, I do not

find any irregularity, impropriety or illegality in the impugned

judgment dated 20.11.2014 and decree dated 02.12.2014 and

hence, the same are affirmed. Accordingly, the instant revision

petition stands dismissed.

21. The defendant/petitioners are directed to vacate

the suit premises within 180 days of passing of the orders of this

Court.

(Arun Kumar Jha, J)

DKS/-

AFR/NAFR A.F.R.
CAV DATE 30.01.2024
Uploading Date 29.02.2024
Transmission Date N.A.

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