S. Shamsul Hasan, J.
1. These five revision applications have been heard together since they all arise out of a single judgment disposing of the five suits filed by the opposite party for the eviction of the petitioners under Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1983 (hereinafter referred to as the 'Act').
2. It is claimed in the petition that the petitioners are tenants in the holding in dispute in five separate Kutras having been indeed by the vendor of the plaintiff, admittedly, quite some time ago. It is not disputed that the plaintiff is the vendee of one Alakh Bihari Lal, one of the co-sharers of the entire premises which constitute an old ancestral house and the disputed premises within a boundary. The purchase was made in the year 1977. The suit was filed under Section 14 of the Act on the solitary ground of personal necessity. As stated in the plaint, the personal necessity is firstly that the plaintiff having retired from the post of Superintending Engineer, is now in poor health living in his village and now needs to reside in Patna instead of his village home in order to avail medical facilities and also in order to provide suitable employment for his two unemployed sons who are no majors and finally for setting up a chemist shop alongwith his son-in-law who is an M.B. D.S., as a partner for the aggrandizement of his own income which has become meager on his retirement.
3. The defendants filed five separate written statements in the five suits which have been heard together. Broadly, their defence is threefold, The first defence is that they are settles of the land only on which existing structures were constructed by them, from the co-sharer of the plaintiffs vendor since its some time. Consequently, they are not the tenants within the meaning of the Act and settles of the lands only. Hence, they cannot be evicted in the manner proposed to be done. The second point is that the plaintiff has not acquired valid title from his vendor because he was one of the co-sharers only of the whole premises and the matter is still in dispute. His final point is that personal necessity is neither substantial nor reasonable.
It has been submitted further by the learned Counsel for the petitioners that the court has committed an error of law by holding on the basis of the definition in the Act that the structure made on the land in suit comes within the ambit of the Act. He has to be found specifically that there was a structure rented out to the petitioner to bring it within the scope of the Act,
4. To me, the most important point that needs to be determined is the first point because if the defendants are really settles of the land only and not the tenants inducted in the premises of the constructions on them, then there is no manner of doubt that the provisions of the Act will not apply. The materials available on the record on this point are Exhibits -'A',-'B' and 'H'. Exhibit-A is a notice sent under Section 106 of the Transfer of Property Act issued by one Binod Behari Lal, Bar-at-Law, who is not a vendor of the plaintiff-opposite-party to Puran Mistry (petitioner in CR 746/89) stating that he has terminated his tenancy as being described as tenancy-at-will, significantly, as having taken the land on rent and having constructed temporary structures on them. This notice was sent to one of the tenants, Exhibit-B series are the rent receipts indicating payment of rent to the landlord, Exhibit-B is the plaint of a suit being Title Suit No. 101 of 1978 filed by the co-sharer of the vendor of the plaintiff seeking a declaration that no title has been conveyed to the plaintiff by virtue of the sale made to him by the vendor. On the basis of these exhibits and the sale deed (Exhibit-3) executed on 21.10.1977 by Alakh Bihari Lal and others in favour of the plaintiff, in which it is not mentioned that there are any structure or any tenants on the land demised, it is submitted that the petitioners cannot be treated to be tenants within the meaning of the Act.
5. On behalf of the opposite party, certain documents have also been brought on the record. They are Exhibit 7/d which is a reply, dated 8.8.1984 to the notice, dated 16.7.1984 of the plaintiff sent to petitioner Puran Lal under Section 106 of the Transfer of Property Act. In this reply it is stated that petitioner Puran Lal is ready to pay rent of the premises and therefore, there is no question or giving up possession. Further, there are documents Exhibit-8 series indicating that some of the tenants had gone to the Rent Controller seeking a direction in regard to the deposit of rent thereby suggesting that they admit that they are tenants of the nature covered by the Act. Exhibit 10 series are money-order coupons indicating that some of the petitioners had actually remitted rent to the plaintiff. I may state here that documents have been filed by both the parties relating to one or the other petitioners. Since the suit was analogous and heard together, both the parties have used these documents for their benefit or detriment particularly in view of the similarity of their case,
6. It is now to be determined whether the (sic) of the defendants-petitioners that they are settles of the land alone having constructed structure themselves or whether they are tenants within the meaning of the Act. At the outset, I may state that since this plea has been raised by the defendants-petitioners, onus shifts on them to prove that they have pleaded. The plaintiffs have in fact pleaded that the defendants-petitioners are tenants in the stricture constructed by the vendors or their family in which they are living as tenants within the meaning of the Act.
7. One single factor that affects adversely the claim of the petitioner is the total absence of any registered instrument of lease for such a long period. In fact, no document was produced nor is it the case of the defendants petitioners that there was any registered instrument. It has been argued by Dr. Nagendra Roy, on the basis of Sections 106 and 107 of the Transfer of Property Act and certain decisions of this Court that a month to month lease does not require registration. Assuming that the submission of Mr. Roy is valid in law that a month to month tenancy is not required to be registered, there is nothing to slow to what was the period of lease nor has it been pleaded or proved that the settlement was a month to month one. The benefit of this situation cannot flow to the defendants-petitioners became in their own pleading or evidence they have only stated that the land was settled to the petitioners and it has no where been averred or stated that the tenancy is month to month or that it was a month to month laces thus not requiring registration. Since the petitioners on their own showing have been in possession of the suit land for considerably long period, it cannot be assumed that the settlement was for month to month. Mere recital in any instrument or agreement that rent will be paid monthly does not mean that the lease created was a month to month one because even in any lease for a period exceeding one year which requires registration, the recital that rent has to be paid monthly is invariably there.
8. The inference from this situation has to be now judged in the light of Exhibits 'A' and 'B' particularly. In Exhibit-A, the recipient of the communication has been cited as a tenant-at-will and not as a settle. From the subsequent recital, it appears that only land was settled and the structure was made by the recipient of the notice. In the same breath, the words 'tenant-at-will' have been used. In the absence of any registered lease or any averment that there was a month to month lease or any other deed of settlement, I cannot hold that Exhibit A indicates that the land alone was settled with the defendants-petitioners. The word 'tenant-at-will militates against the claim of the defendants-petitioners because a person on becoming settle of a land for any period cannot be described as the tenant-at-will. Further this letter was sent in the year 1965 by one of the co-sharers of the vendors and not the vendors to one of the opposite-party. I, therefore, cannot treat this document as sufficient to hold that the claim of the petitioners-defendants is correct Similarly, Exhibit-B series as I have said above, relate to the land rent. They are rent receipts in relation to the lands in dispute. Some of them have been found to be forged. Exhibit-A indicates that the title of the plain tills over the land in dispute has been challenged but this suit did not reach its logical conclusion and, perhaps, was dismissed for default, as stated by the learned Counsel. As against all this, the conduct of the petitioners will have a serious bearing on this question. They are bound by their own conduct. Had the petitioners not been tenants within the provisions of the Act, they would not have initiated a proceeding in a Court of the Rent Controller in a bid to ascertain as to who is the landlord and thus, entitled to receive rent consequent upon a dispute within the family of the landlord including the vendors of the opposite party-plaintiffs. Further, in the notice Exhibit 7/d, one of the petitioners has agreed to pay rent. The lawyer's notice should have denied the relationship and asserted the case of settlement but that was not done and the money order coupons indicate remittance of rent by some of the defendants-petitioners. The cumulative effect of all the materials compels me hold that the defendants-petitioners have not been able to prove their case. The plaintiffs, as I have said above, have asserted that there are constructions on the plot in which the defendants-petitioners reside as tenant and this is supported by their oral evidence. Nothing more was required to be proved by them.
It was argued that Exhibit 3 the sale-deed does not speak of the existence of the tenants in the premises, and, thereform, the plaintiff cannot treat these persons as tenants. There is no merit in this submission because the sale-deed also do is not mention that they are the settles on the land and thus nothing can be inferred in this regard from the sale-deed Bxhibit-3 that the area in dispute was transferred to the plaintiff. The subsequent steps of the vendor of the plaintiff that he issued Exhibits 5 and 6 shows what right was demised and how the petitioners have been treated by the vendor.
9. Coming lo the second point whether any title was conveyed to the plaintiff-vis-a-vis the co-sharers of the vendors of the plaintiffs the affecting the relationship between the plaintiff and the defendants-petitioner, this is a matter entirely between the vendors of the plaintiff inter se and the plaintiffs and the petitioner-defendants are not really concerned or affected by it. They cannot take advantage of any dispute between the two sets of persons claiming to be the owner of the property in order to assert that the transferee of one of the tenants had no light to maintain the eviction suit. The fact that the defendant petitioners went to the Rent Controller completely negatives the plea now taken by them. This however, is not the end of the matter. In fact, after the premises in dispute had been demised to the plaintiffs, notices had been sent to the defendants-petitioners informing them about transfer the premises in question. These are Exhibits-5 and 6. From this, I have no hesitation to holding that this point has no merit.
10. Coming to the last point whether the personal necessity is valid, it was argued by the learned Counsel that the plaintiff has not come forward to support his case and a person holding power of attorney for him has deposed in support of the case of the personal necessity. First, it has to be examined, donors this situation, whether the personal necessity itself is a valid one. I have no manner of doubt that a retired engineer living in a village and in infirm health would be fully justified in seeking eviction of the tenant to shift to a city where he cannot only be in the vicinity of proper medical aid but also try to augment his income by entering into a business or trying to obtain higher rent by developing the premises. This comes specifically within the category of personal necessity that can be described are co-personal. It is also well settled that the sons of a landlord can be proper person for whom eviction can be sought and it will be a reasonable and substantial personal necessity. I have, therefore, no hesitation in holding that the personal necessity pleaded is entirely reasonable and substantial.
11. It was argued that the personal necessity in counter distinction to the general definition of the landlord must be restricted to the categories mentioned in Section 11(1)(c) of the Act. There is no doubt in this proposition because the definition of landlord is very wide and the personal necessity is restricted to the landlord himself and to those for whom he holds the building. Sons and son-in-law have been held to be such relations who come within the definition. The next question has also no merit in regard to the law of adverse inference on the non-appearance of a party. It is well settled that if the plaintiff himself does not depose, somebody on his behalf can depose to the existence of the personal necessity. The claim cannot be defeated on that ground. Here it has not been disputed that the plaintiff was in poor health and was not in a position to come and depose in Court. That has been stated by the plaintiff witness himself. In this situation, I have no hesitation in holding that the personal necessity is a valid one, rightly pleaded and proved.
12. It may be stated that the personal necessity of the plaintiff cannot be satisfied by evicting the tenant partially from the premises occupied by them because that will mean five partial evictions, the remainder of the premises thus becoming utterly useless to the plaintiff and if an attempt is made to evict some of the tenants from amongst the five in order to give that part to the plaintiff, it will be an exercise that is not possible because it will be entirely discriminately to pick some for eviction and not the others.
13. In regard to the point that in terms of the definition, the suit was not maintainable as the premises in question do not come within the definition in Section 2(b) of the Act, I can only may that this point is only stated to be rejected if a closer view of the definition is taken. It is wide and includes everything within a premises. If the story of settlement of the land only is not accepted and if the stand of the plaintiff is found to be tenable then undoubtedly the structures in possession of the defendants-petitioners will be a building within the scope of the definition in Section 2(b) of the Act. The court below has given correct finding in regard to the nature of the premises.
14. In the result, there is no merit in these five civil revision applications and they are dismissed accordingly with costs.