The proviso to Section 11(1)(c) of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1982, is attracted when the tenant agrees to partial occupation, and the court cannot pass a decree for partial eviction if the tenant does not agree to such occupation.

Mungeshwar Sahoo, J.

1. This First Appeal has been filed by the defendants- appellants against the judgment dated 19.8.1983 and the Decree signed on 1.9.1983 by Sri Abhay Shankar Prasad, the learned Subordinate Judge, Bhagalpur in Title Suit No.176 of 1982 decreeing the plaintiffs-respondents suit for eviction.

2. The short facts which are necessary for disposal of this First Appeal may be briefly stated that the plaintiffs filed the aforesaid suit for eviction of the defendants-appellants on two grounds. Firstly, on the ground of default and secondly on the ground of personal necessity. It is alleged that they have purchased the suit premises for valuable consideration from the owner Narayan Chandra Ganguli and Nilanghu Chandra Ganguli on 29.11.1980 for the purpose of their residence. Plaintiff No.1 purchased the northern portion and the plaintiff No. 2 purchased the remaining portion. It is further alleged that the suit premises is under the occupation of appellants and the office of the group commandant of N.C.C. is running in the same premises. They were inducted as tenant by the vendor of the plaintiff and the rent was Rs. 500/- per month.

3. The defendants filed written statement and stated that they were informed regarding joint purchase only. They were not informed regarding respective shares. The rent was payable in one lump sum as per agreement. The house controller directed the defendant No. 3 to deposit the rent in Nazarat. The defendants also denied the personal requirement of the plaintiffs.

4. By the impugned judgment, the learned Court below came to the conclusion that there was no default made by the defendants-appellants. However, he found that the plaintiff have purchased the suit premises for their residence and, therefore, the plaintiffs reasonably and in good faith requires the suit premises for their personal occupation and decreed the suit.

5. The learned Senior Counsel, Mr. Jha (G.A. 2), raised only one question of law that the learned Court below has not considered regarding partial eviction as provided under Section 11(1)(c). Except this, no other ground have been raised. The learned counsel relied upon 1985 P.L.J.R. 727 and 1981 P.L.J.R. 336.

6. On the other hand, the learned counsel appearing for the respondents submitted that partial eviction cannot be considered in this First Appeal, particularly when the defendants neither pleaded nor gave evidence to the said effect and moreover the appellants are running N.C.C. office in the suit premises. So, it will not be just and inconvenient for the plaintiff to reside in one part of the suit premises and allow the defendants to run N.C.C. office in the other part of the premises. The learned counsel further submitted that in fact in the Execution Case No. 5 of 1984, the appellants filed an application on 17.1.1998 stating that the Government of Bihar has approved a new premises in Bhagalpur for N.C.C. Group Headquarter and the suit premises will be vacated immediately on Courts order and the office will be shifted to the said approved new building. This application has been annexed as Annexure-B to the Interlocutory Application No. 4163 of 2010. On the basis of this, the learned counsel submitted that still the appellants are not agreeable and they are not offering or making out a case that the plaintiffs requirement will be substantially met by partial eviction and they are ready to run their office in one part.

7. In view of the above contentions of the parties, the only point arises for consideration in this Appeal is as to whether the impugned judgment and decree is vitiated for non-consideration of proviso to Section 11(1)(c) of the B.B.C. Act, 1982.

FINDINGS

8. From perusal of the decision reported in 1981 P.L.J.R. 336 (Arun Kumar Sah V/s. Md. Basir Ahmad), it appears that before this Court in Second Appeal which was submitted by the appellant tenant that the position of the premises was such that even after allowing tenant to continue in