Second appeal against eviction decree based on expiry of a five-year registered fixed-term tenancy and landlord's personal necessity. Both courts below had concurrently decreed the suit. The High Court found no substantial question of law and dismissed the appeal.
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2025: JHHC: 10189
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 282 of 2023
Bijay Kumar Sharma, aged about 61 years, son of Late Madanlal Sharma, resident of Sarai Road, Dumka, P.O. Dumka, P.S. Dumka (T), District Dumka (Jharkhand) … … Defendant/Appellant/Appellant
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
--For the Appellant : Mr. Rajeeva Sharma, Sr. Advocate Mr. Ritesh Kumar, Advocate Mr. Om Prakash, Advocate Ms. Maksuda Khatun, Advocate Ms. Rita Kumari, Advocate For the Respondents :
06/6th February 2025
1. Heard the learned senior counsel for the appellants.
2. This appeal has been filed challenging the judgment and decree dated 20.09.2023 (decree signed on 26.09.2023) passed by the learned District Judge-III, Dumka in Civil Appeal No. 43/2019, whereby the learned appellate court has dismissed the appeal. The trial court has decreed the suit vide judgment and decree dated 04.05.2019 (decree signed on 16.05.2019) passed by the learned Senior Civil Judge-II, Dumka in Title (Eviction) Suit No. 02/2012 in the following terms:-
“ ORDERED
That the suit be and the same decreed on contest with cost in favour of the plaintiffs and against the defendant. The plaintiffs are directed to refund a sum of Rs. 1,51,000/- to the defendant and the defendant is directed to give vacant possession of the suit premises along with rent @ 3000/- per
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month from 01.01.2012 till date to the plaintiff which the plaintiffs are at liberty to get the same executed through process of the court.”
3. The learned senior counsel for the appellant has submitted that the appellant is the tenant in the suit premises and the suit was filed for eviction on account of expiry of fixed term tenancy and also for personal necessity. He submits that the learned appellate court has not framed any issue in connection with partial eviction of the suit premises. He has also submitted that the defendant had also disputed the tenancy agreement. The suit premises is a shop and therefore the judgments passed by both the courts call for interference. He submits that appropriate substantial question of law be framed.
4. The learned senior counsel has submitted that in the first legal notice dated 26.11.2011 (exhibit-3), the defendant was asked to vacate the suit premises upon expiry of lease period but thereafter another legal notice was issued dated 03.01.2012 (exhibit-3/1) stating that he had no space, land or building except the suit premises for doing his business.
5. After hearing the learned counsel for the appellant, this Court finds that the plaintiffs had filed the suit for a decree of eviction of the defendant from the suit premises and also for a decree of damages at cost of Rs. 500/- per diem from 01.01.2012 until actually evicted and possession is delivered to the plaintiffs.
6. The specific case of the plaintiffs was that the plaintiffs had let out the suit premises to the defendant for a fixed terms of five years from 01.01.2007 to 31.12.2011 at a monthly rent of Rs. 3,000/- and a registered kirayanama agreement dated 29.03.2007 was also executed which was acted upon and the rent was being paid by the defendant to the plaintiffs. The suit was taken for business purposes and the tenancy expired on 31.12.2011.
7. As per the registered tenancy agreement, the defendant had agreed to vacate the suit premises and deliver the vacant possession to the
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plaintiffs upon expiry of the fixed period of tenancy and a liability to pay damages @ Rs. 500/- per diem was also fixed upon failure to the delivery of the suit premises.
8. The defendant however did not vacate the suit premises upon expiry of the period of tenancy. Consequently, a legal notice was sent on 26.11.2011 asking the defendant to vacate the suit premises on 31.12.2011 which was duly received by the defendant on 28.11.2011. In spite of that, the defendant did not vacate the suit premises and another legal notice dated 03.01.2012 was sent to the defendant by courier and registered post and in the second legal notice, it was also stated that the plaintiffs required the suit premises for his personal necessity for starting their own business. The notice was received by the defendant on 06.01.2012 but the defendant did not reply to the legal notice and the defendant refused to vacate the suit premises. It was the case of the plaintiffs that the plaintiff No. 2 was an old lady (mother of the plaintiff No. 1) and the plaintiff No. 1 was looking after his mother and was maintaining his livelihood by doing a private job in a book store and he wanted to start his own business in the suit premises.
9. The defendant contested the suit by filing written statement and asserted that the registered kirayanama agreement was a fake document and referred to another agreement dated 20.03.2007 and as per the said agreement dated 20.03.2007, an amount of Rs. 1,51,000/- was deposited with the plaintiffs as security which was interest free. The defendant used to pay monthly rent and was granted receipts but on refusal to receive the monthly rent of January, 2012 onwards, the defendant regularly sent the rent through money order. It was asserted by the defendant that the registered agreement was not a real agreement of tenancy and was not for a fixed period. The plea of personal necessity was also contested by the defendant.
10. The learned court framed as many as 8 issues including issue Nos. 3 and 4 which was in connection with the registered kirayanama for a fixed
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period of 5 years and also framed the issue regarding bona fide requirement and also the point regarding partial eviction. The issues framed by the learned trial court are as under: -
11. The learned trial court considered the evidences on record with respect to issue Nos. II, III, and IV together and recorded a finding that the registered kirayanama was duly executed by the plaintiffs and the defendant and the tenancy of the defendant was for a fixed period of 5 years as mentioned in registered kirayanama agreement. With regard to plea of bona fide requirement , the same was also considered on the basis of materials on record and the issue was decided by holding that the plaintiff No. 1 was a salesman and he wanted to do his business in the suit premises and concluded that the plaintiff No. 1 needed the suit premises for bona fide purpose for personal use. The issue in connection with partial eviction was also decided and the learned trial court recorded that in the pleadings the plaintiffs had specifically pleaded that the partial eviction of the defendant from the suit premises will not satisfy the reasonable and bona fide requirement of the plaintiffs and there was no specific denial by the defendant on this pleading and the defendant had not taken the plea that his partial eviction from the suit premises shall solve the problem of the plaintiffs. The learned court concluded that the
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partial eviction of the defendant from the suit premises will not satisfy the reasonable and bona fide need of the plaintiffs and ultimately the suit was decreed and the plaintiffs was directed to refund Rs. 1,51,000/- to the defendant and the defendant was directed to give the vacant possession of the suit premises along with rent @ Rs. 3,000/- per month from 01.01.2012 till date to the plaintiffs.
12. The learned 1st appellate court also considered the materials on record and gave concurrent findings. However, the learned 1st appellate court while recording the point of determination has framed only two issues, which are as under: -
(ii) Whether the tenancy between the parties has fixed term or not? The point of determination was said to have been framed on the basis of pleadings, evidences and contention of both the parties.
13. This Court finds that on the face of the findings recoded by the learned trial court that the plaintiffs had specifically pleaded that partial eviction will not satisfy the requirement of the plaintiffs and the defendant did not deny the said position, there was no need to frame any issue in connection with partial eviction and consequently the learned 1st appellate court had not framed any issue regarding partial eviction. The pleadings which have been recorded by the learned trial court while rejecting the plea of partial eviction has not been disputed by the learned senior counsel for the appellant during the course of hearing.
14. This Court finds that there are concurrent findings recorded by both the courts after scrutinizing the materials on record that there was fixed term tenancy and admittedly the period of tenancy as per the registered deed of tenancy had expired and there is also concurrent findings recorded by both the courts regarding the personal necessity of plaintiff No. 1, this Court finds no question of law much less any substantial question of law involved in this case. Accordingly, this appeal is hereby dismissed.
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15. Pending I.A., if any, is dismissed as not pressed.
(Anubha Rawat Choudhary, J.)
Mukul
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2 issues framed by the court
Whether any substantial question of law arises from the concurrent findings on fixed-term tenancy, bona fide requirement and partial eviction.
Whether the first appellate court erred in not framing an issue on partial eviction.
Bijay Kumar Sharma
Sanjoy Kumar Narnoli
Smt. Shakuntala Devi
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
