MUNNA SAH Vs. SHANKARJEE PRASAD

JUDGEMENT

(1.) 1. The defendants are the appellants against the judgment of affirmance arising out of an eviction suit. The suit was instituted for eviction of the defendants from the suit premises which was allowed by the judgment and decree dated 31.8.1995, passed by the learned 3rd Munsif, Arrah, in Eviction Suit No. 259 of 1992 (Shankarjee Prasad and Ors. v. Munna Sah and Ors.), on the ground of personal necessity. The defendants' appeal has been dismissed by the impugned judgment and decree dated 15.2.2003, passed by the learned 5th Additional District Judge, Bhojpur, Arrah, in Title Appeal No. 60 of 1995 (Munna Sah v. Shankar Jee Prasad and Anr.), whereby he has held that the appeal is not maintainable in law for the reason that the defendants' remedy lay in terms of Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act'). Hence this appeal at the instance of the defendants. We shall go by the description of the parties occurring in the plaint.

(2.) ACCORDING to the plaint, plaintiff No. 1 (respondent No. 1 herein) is the Dewar, and plaintiff No. 2 (respondent No. 2) is the Bhabhi. The husband of plaintiff No. 2 had Page 0745 taken Shop No. 7 on rent from its owner for running his business. Plaintiff No. 1 had to be settled in life and it was decided that he should set up an independent business. Therefore, the plaintiffs purchased Shop No. 7 as well as the adjoining Shop No. 6 by a registered deed of absolute sale dated 21.11.1991, with the intention that plaintiff No. 1 will set up his independent business in Shop No. 6. It is their further case that Shop No. 6 had been let out in 1980 by the vendors to the defendants where they have been running their business. This was followed by the instant suit for eviction of the defendants from shop No. 6 on the ground that they need it for personal use and occupation, namely, for plaintiff No. 1 to set up his independent business. The suit was instituted on 15.12.1992. In view of the size of Shop No. 6, (the suit property), partial eviction will not serve the personal necessity of the plaintiffs. Their further case is that the defendants have purchased the adjoining Shop No. 5 by registered deed dated 26.3.1992, where they can shift their business.

(3.) THE suit was decreed by the learned trial court who held that the husband of plaintiff No. 2 is running his business in Shop No. 7, which was initially taken on rent from the erstwhile owner which he purchased by the aforesaid deed of absolute sale dated 21.11.1991. He has further found that the plaintiffs purchased shop Nos. 6 and 7 from the erstwhile owner by a registered deed of absolute sale dated 21.11.1991. Plaintiff No. 1 intends to set up his independent business in Shop No. 6 which the plaintiffs need bona fide for personal necessity. He has also found that partial eviction will not serve the purpose of personal necessity of the plaintiffs.