A mala fide claim of permanent tenancy can be a separate ground for eviction of the tenant.

1. Heard learned counsel for the appellant and learned counsel for the respondent.

2. This second appeal has been filed by the sole defendant-appellant-appellant against the judgment and decree of both the learned courts below.

3. The matter arises out of Eviction Suit No. 21 of 1995 which was filed by the sole plaintiff-respondent-respondent for eviction of the sole defendant from the suit premises which is a shop room, on the ground of personal necessity of the plaintiff as well as the default in the payment of rent by the defendant.

4. The said suit was decreed by the learned Munsif-l, Siwan on contest without cost vide judgment and decree dated 4.8.2004. Against the aforesaid judgment and decree of the learned trial court, the defendant filed Title Appeal No. 35 of 2004, which was dismissed on contest without cost by the learned Additional District Judge-cum-Fast Track Court No.-III, Siwan vide his judgment and decree dated 18.7.2008. The said judgments and decree of the learned courts below are under challenge in the instant second appeal.

5. In the instant case, admitted facts are that the plaintiff is the owner of the suit property and there is relationship of landlord and tenant between the parties. The dispute is only with regard to default in payment of rent for the months of September and October, 1995 as well as personal necessity of the plaintiff.

6. So far the question of default is concerned, there is statement of witnesses on behalf of both the parties contradicting each other and there is no documentary evidence. However, the plaintiff had claimed that defendant stopped paying rent from September, 1995 but the defendant claimed that he had always paid rent to the plaintiff and when plaintiff refused to receive the same the defendant sent rent through money orders but no receipt of money order had been filed by the defendant. In the said circumstances after perusal of the witnesses of the parties, the learned courts below found that the oral evidence of the plaintiff was more reliable and proved that defendant had not paid rent and had become defaulter. It was also found that much before August, 1995 the rent was enhanced at the instance of both the parties from Rs. 75.00 to Rs. 150.00 per month. The said findings are findings of fact based on evidence and this court does not find any illegality in the said findings.

7. So far the question of personal necessity of the plaintiff is concerned the learned courts below specifically found that the plaintiff had been able to prove by his evidence that he had bona fide personal requirement of the suit premises. The defendant had claimed permanent tenancy of the suit premises but the learned courts below found the said claim to be mala fide and in the teeth of the decision of Hon ble Apex Court in case of Smt. Fatima Bee V/s. Mohamood Siddiqui, reported in A.I.R. 1996 SC 2537 that mala fide claim of permanent tenancy will be a separate ground for eviction of the tenant who has raised that claim. In any view of the matter, the finding of personal necessity is a concurrent finding of fact based on evidence which cannot be interfered with in this second appeal.

8. So far the question of partial eviction is concerned, it has also been a settled law that in. a case where such claim/suit of the plaintiff is allowed on both the grounds of default and personal necessity, the question of partial eviction need not be considered [see, the decision of this court in case of Most. Jagtarana Kuer & Ors. V/s. Lalmuni Kuer & Ors. reported in 2007(4) PLJR 98].

9. In the said circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure.

10. After the aforesaid judgment was pronounced, learned counsel for the defendant-appel