IN THE HIGH COURT OF JUDICATURE AT PATNA

Second Appeal No.257 of 2006

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Radhey Shyam Sah s/o Late Bouka Sah, resident of Mohalla Chowk Bazar near

Azad chowk, P.O. Kotwali, P.O. Munger, Distt. Munger.

.... .... Appellant/s

Versus

Krishna Prasad Gupta s/o late Indu Shekhar Prasad Gupta, resident of Mohalla Fort

Area P.O. Kotwali, P.O. Munger, Distt. Munger carrying on business at Mohalla

Chowk Bazar, near Azad Chowk, P.O. Kotwali, P.O. Munger, District Munger.

.... .... Respondent/s

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Appearance :

For the Appellant/s : Mr. Birendra Kumar Singh, Adv

For the Respondent/s : Mr. J.K. Verma, Adv

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CORAM: HONOURABLE MR. JUSTICE V. NATH

ORAL JUDGMENT

Date: 16-09-2016

Heard Mr. Birendra Kumar Singh, learned counsel

appearing for the appellant and Mr. J.K. Verma, learned counsel

appearing for the respondent.

2. The plaintiff is the appellant in this appeal against

the judgment and decree of affirmance granting the decree of

eviction to the plaintiff for the part of the suit premises only.

3. The relationship of landlord and tenant between the

plaintiff and the defendant is not in dispute. The tenant has been in

occupation of the suit premises which is a shop measuring 10 feet

North to South and 13 feet East to West in a market place. The

plaintiff filed the suit for eviction of the tenant-defendant on the

Patna High Court SA No.257 of 2006 dt.16-09-2016

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ground of personal necessity for establishing a Sanitary Ware Shop

for his younger son in the suit premises. The trial court decided the

issue of personal necessity in favour of the plaintiff. However, while

considering the issue of partial eviction, the trial court came to the

conclusion that the need of the plaintiff would be reasonably and

substantially satisfied by eviction of the defendant from the area

admeasuring 14 feet long and 6 feet wide from the Western side in

the suit shop, leaving the remaining portion of it in occupation of the

defendant as tenant. The suit was, accordingly, decreed in part.

4. The plaintiff filed the appeal against the judgment

and decree of the trial Court assailing the grant of only the decree

for partial eviction of the defendant from the suit premises. The

defendant-tenant also filed the cross objection pertaining to the

vagueness in the description of the dimension of area of partial

eviction the suit premises in the judgment and decree of the trial

Court. The appellate court below on reappraisal of evidence has

concurred with the finding of the trial court on the issue of partial

eviction with clarification granting decree of eviction to the plaintiff

for the area admeasuring 8 feet East to West having frontage in

South and 10 feet North to South towards eastern portion in the suit

premises adjacent to the shop used as godown for Hira Paints. The

appeal has been accordingly dismissed by the impugned judgment

Patna High Court SA No.257 of 2006 dt.16-09-2016

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and decree.

5. This Second Appeal has been admitted for hearing

on the following substantial questions of law:-

(i) Whether the defendant has discharged

his onus with respect to pleading and proving the

question of partial eviction as provided in various

decisions of this Court as well as the Hon'ble Apex

Court?

(ii) Whether the learned courts below

failed to consider the question of partial eviction in the

light of specific settled principles of law?

6. Criticizing the impugned judgments, Mr. Singh,

learned counsel appearing for the appellant has emphatically

submitted that the defendant-tenant has failed to discharge the onus

to establish by cogent evidence that his partial eviction from the suit

premises would satisfy the need of the plaintiff but both the courts

below have failed to consider the sa