JUDGMENT S.D. Jha, J. -- 1. This second Appeal by defendant / tenant who was unsuccessful in the two Courts below was by order dated 8-12-89 admitted for final hearing on the substantial questions of law set out below: - 1. Whether in the facts and circumstances of the case the failure of the plaintiff /respondent to plead about the existence of 'BACK KOTHA' and its unsuitability for the plaintiff's non-residential purpose is fatal to the suit? 2. Whether in the facts and circumstance of the case in judging turnover of the plaintiff / respondent's business, the lower Court committed illegality in taking the turnover reflected in Khata of the plaintiff without proof of the entries of the Khata? 2. The plaintiff filed civil suit on 19-8-81 in the Court of Civil Judge Class-II, Sanawad against the defendant for eviction from non-residential accommodation described in para 2 and para 12-A- relevant clause of the plaint. The plaintiff's case was that in the year1974 he commenced running Kirana shop in portion of the house owned earlier by one Ramibai widow of Ram Lal. In the eastern side of this shop the defendant was running a shop being tenant of the earlier owner Rami Bai. Plaintiff by registered sale deed dated 11-7-80 purchased the whole building described in para 1 of the plaint from Mst. Rami Bai and thus became owner of the whole building and landlord of the defendant tenant in respect of the portion and Kotha behind as described in para 2 of the plaint where the defendant was running a shop. The volume of business of the plaintiff since he opened the shop in the year 1974 had increased manifold and the small room measuring 10' x 9' described in para 5-A of the plaint was too small and inadequate for the shop and godown of the plaintiff inconvenient to the customers. The plaintiff, therefore, wanted to break the partition wall between the shop of the defendant and his own shop and make the shop larger. It was also submitted that in plaintiff's possession there is no sufficient space for storing goods of the shop and for the purpose the plaintiff had taken a room on rent in Agrawal Bhavan and another room in Digamber Khandelwal Dharm Shale. The plaintiff proposed to utilise the room behind the defendant's shop for storing his goods. It was also submitted that in plaintiff's possession there is no sufficient space for storing goods of the shop and for the purpose the plaintiff had taken a room on rent in Agrawal Bhavan and another room in Digamber Khandelwal Dharm Shale. The plaintiff proposed to utilise the room behind the defendant's shop for storing his goods. The plaintiff's case further was that he was residing as a tenant in Hukumchand's house on rent and that he proposes to construct one storey over the house purchased by him for his residence. This construction could be made only after removing parapet over the building. The plaintiff by amendment made on 9-3-83 and 26-6-85 also pleaded that his wife had during pendency of the suit purchased residential house which did not belong to the plaintiff and was not suitable for non-residential purpose. Further, that at Sana wad except for the house as described in para 1 of the plaint the plaintiff had no other accommodation of his own at Sanawad for his growing business. The plaintiff after serving notice filed suit for eviction of the defendant on grounds under clause (f) -- that accommodation let for non -- residential purpose is required bona fide by the landlord for the purpose. of continuing his business and that he has no other suitable non-residential accommodation of his own in the city or town concerned and (h) -- that the accommodation is required bona fide by the landlord for the purpose of building or re-building and such building or re-building is not possible of being carried out without the accommodation being vacated, of sub-section 1 of S. 12 of the M.P. Accommodation Control Act, 1961 (here-in-after called, 'the Act'). 2. The defendant by written statement presented on 10-2-82 as subsequently amended on 4-7-85 resisted the claim for eviction made by the plaintiff. The plaintiff's requirement of more accommodation for his shop and storing goods was denied and it was submitted that he had sufficient space for the shop and for storing goods and that he did not require more space and that he had sometime after the institution of the suit purchased a house behind suit accommodation in the name of his wife which he was using for non-residential purpose and, therefore, the need if any of the plaintiff for additional space did not subsist. It was denied that the plaintiff required to build or re-build the house. It was also submitted that suit was a device to get increased rent. 3. After trial, the civil Judge Class -- II, Sanawad by judgment and decree dated 19-8-85 found in favour of the plaintiff on both grounds under clause (1) and clause (h) of sub - section. 1 of S. 12 of the Act and decreed the claim for eviction. He also ordered compensation in terms of sub-section (b) S. 12 of the Act as the accommodation is non-residential. The tenant's appeal was dismissed by the first Additional Judge to the Court of District Judge, Mandleshwar by judgment and decree dated 8-8-1989. Hence, the present appeal. 4. At the hearing of the appeal, Shri K.L. Sethi learned Advocate submitted that the plaintiff had suppressed the fact of there being Kotha behind his shop. Not a word has been stated about its un-suitability for plaintiff's non-residential purpose. This was fatal to the claim for eviction on ground under S. 12 (1) (1) of the Act. For the argument he relied on Hasmat Rai v. Raghunath Prasad; (1981 JLJ 716) (SC) and number of decisions of this Court which would be referred to later. 5. Proceeding further Shri K.L. Sethi submitted that the Courts below were in error in accepting business turn over given by the plaintiff for the purpose of judging volume of his business when Khata entries of the plaintiff had not been proved at all. Shri Sethi also argued that the plaintiff had neither produced nor proved entries from stock books which he argued the plaintiff must be maintaining. For this purpose he relied on the following decisions: 1) Ahmed ali v. Mohammad Hanif; ( 1958 JLJ 106 ) 2) Sohan Lal & Ors. v. Gulab Chand; ( AIR 1966 Raj. 229 ) 3) Chandradhar Goswami & Ors. v. Gauhati Bank Ltd. ( AIR 1967 SC 1058 ) 4) Zenna Sorabji & Ors. v. Mirabelle Hotel Co. (P) Ltd. & Ors. ( AIR 1981 Bom. 446 ) 5) Kishanprasad v. M.P. Government through Collector, Vidisha (1983 M.P.L.J. 355). 6. Proceeding further Shri K.L. Sethi also argued that burden of proof in the instant case was wrongly cast by the Courts below on defendant. v. Mirabelle Hotel Co. (P) Ltd. & Ors. ( AIR 1981 Bom. 446 ) 5) Kishanprasad v. M.P. Government through Collector, Vidisha (1983 M.P.L.J. 355). 6. Proceeding further Shri K.L. Sethi also argued that burden of proof in the instant case was wrongly cast by the Courts below on defendant. Shri K.L. Sethi referred to number of decisions on S. 100 CPC on the point as to when findings recorded by the first appellate Court or concurrent findings of fact by the Court below are not binding in second appeal and can be interfered with under S. 100 CPC. If considered necessary, they would be referred to later. 7. Controverting Shri K.L. Sethi's contentions Shri R.G. Waghmare learned Senior Advocate representing plaintiff/respondent submitted that both the plaintiff and the defendant were tenants of the earlier landlady Mst. Ranibai from whom the plaintiff purchased the whole house consisting of the accommodation belonging both to defendant and plaintiff. The accommodation was specifically referred to in sale-deed dated 11-7-80, Ex. P/7 in favour of the plaintiff executed by Ramibai. The plaintiff and defendant occupied adjacent shops and the defendant fully well knows that the plaintiff's shop has a Kotha behind. There was, therefore, no question of suppression. He also submitted that in the lower Courts no contention about suppression of the Kotha was made. He further submitted that parties had gone to Court with full knowledge of the case that they had to meet and, therefore, alleged omission as to Kotha in the pleadings would not affect the merits of the case or conclusion recorded by the two Courts below. For this argument Shri Waghmare relied on the following decisions:- 1. Nagubai Ammal & Ors. v. B. Sharma Rao & Ors; ( AIR 1956 SC 593 ) 2. Smt. Rajbir Kaur & Another v. – M/s S. Chokosiri & Cri & Co. ( AIR 1988 SC 1845 ) 3. Kum. Vimla v. Smt. Usha; (1989 M.P.R.CJ. Note No. 16) 8. As to the next point Shri Waghmare submitted that the plaintiff had filed Khatas which was supported by assessment order made by the Income Tax and Sales Tax Authorities. There was no cross-examination of the plaintiff by the defendant on the correctness of the volume of the business testified to by him and reflected in the Khata. As to the next point Shri Waghmare submitted that the plaintiff had filed Khatas which was supported by assessment order made by the Income Tax and Sales Tax Authorities. There was no cross-examination of the plaintiff by the defendant on the correctness of the volume of the business testified to by him and reflected in the Khata. There was no denial of the correctness of this by defendant, if the defendant doubted the correctness of the volume of business given out by the plaintiff, he could ask for the original Khata entries which he failed to do. The finding as to volume of plaintiff's business recorded by the two Courts below was concurrent finding of fact in coming to which there was no mis-reading of evidence or perversity or illegality and therefore, this finding would not be disturbed in second appeal. In support of this argument Shri Waghmare relied on the following decisions: 1. Manjar Ismail Sab & Ors. v. Maniar Eakruddin ( AIR 1989 SC 1509 ) & Ors: 2. Aihalchand v. Mangilal; (1989 MPRCJ NOC 4) 3. Abdul Zamel v. Mohd. Sarif; (1989 MPRCJ NOC 44) 4. Smt. Laxmi Devi v. Radhe Shyam Sharma; (1989 MPRCJ NOC 45) 5. Radhey Shyam & Ors. v. Kalyan Mal & Another; (1985 MPLJ 112) It was also submitted that as the order of eviction of the defendant was based on really and substantially only under S. 12(1) (f) of the Act. S. 18 of the Act providing for election to the defendant for reoccupation would not be applicable. For the purpose reliance was placed on Radhey Shyam and Ors. v. Kalyan Mal & another: (1985 MPLJ (SC) 112). 8. Taking up first the second contention of Shri K.L. Sethi as to finding of the Courts below regarding volume of plaintiff's business, Shri K.L. Sethi relied on certain decisions. In Sohan Lal's case (Supra), the suit was for recovery of specie of 176 bags of gur weighing 352 mds. based on accounts. In this decision the Rajasthan High Court with reference to S. 34 of the Evidence Act, 1872 held that Khata Balli is a book of account and if maintained in regular course of business can be admitted in evidence. Entries are not, however, admissible if not supported by corresponding entries in Rokar and Naqal Bahi. In Ahmed Ali's case (Supra) the claim was for recovery of loan of Rs. Entries are not, however, admissible if not supported by corresponding entries in Rokar and Naqal Bahi. In Ahmed Ali's case (Supra) the claim was for recovery of loan of Rs. 5000/- advanced by the plaintiff based on entries in accounts book. In this decision this Court with reference to S. 34 of the Evidence Act held that account-books by themselves cannot be sufficient and some other evidence is necessary. In Zenma Sorabji's case (Supra) - a writ petition challenging decision of the Bench of the Court of Small Causes, the question about exact date of subletting was material in the case and ledger consisting of bundle of sheets separable conveniently was produced as book of accounts. The Court held that even the bound ledger book by itself has no evidentiary value. In Chandradhar Goswami's case (Supra) the claim by the respondent Bank was for recovery of Rs. 40000/- based on Banker's Book Evidence Act. With reference to S. 34 of the Evidence Act, 1872 the Supreme Court emphasized that original entries alone under S. 34 of the Evidence Act would not be sufficient to charge any person with liability. It would be seen that the question involved in the precedents referred to above was materially different from one involved in the present appeal. The trial Court discussed the question of increase in volume of plain tiff's business in para 12 of its judgment based on Khata entries of the assessment orders made by the Sales Tax Authorities referred to therein, the Court held that gross turnover of Rs. 2,38,000/- in Sam. 2030 to 2031 rose to 12.09,946/- in Sam. 2038-39. The first appellate Court in para 7 of the judgment upheld the finding and it does not appear that the argument as now advanced was urged either before the trial Court or the first appellate Court. 9. S. 34 of the Evidence Act. 1872 no doubt, provides that entries in book of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to enquire but such statement shall not alone be sufficient evidence to charge any person with liability. In the present case, the Court is strictly not called upon to enquire into correctness or otherwise of entries of account books as to charge any person with liability based on the same. In the present case, the Court is strictly not called upon to enquire into correctness or otherwise of entries of account books as to charge any person with liability based on the same. The question generally is whether the volume of business of the plaintiff has grown. One cannot also ignore the fact that no such objection at the earlier stages was taken nor was the plaintiff at all cross examined on the yearly volume of his business testified to by him and as given in copies of the khata entries produced by him and which the sales Tax Authorities in the assessment orders had accepted. In this state of thing the finding of the Courts below accepting turnover given by the plaintiff as reflected in the Khata and the assessment orders made by the Sales Tax Authorities cannot be interfered with in second appeal. The concurrent finding recorded by the two Courts below would have to be upheld. 10. Taking up the first substantial question of law it is now common ground that there is Kotha behind the shop of the plaintiff and the plaint is totally silent about existence of this Kotha or as to its unsuitability regarding plaintiff's requirement for non-residential purpose of the same. At this stage it would be useful to reproduce clause (1) of S. 12 (1) of the Act. "Cl. At this stage it would be useful to reproduce clause (1) of S. 12 (1) of the Act. "Cl. (f) : that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that any of his major sons or unmarried daughters if he is the owner thereof for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned." In Hasmat Rats case (1981 JLJ 716) the Supreme Court dealing with requirement of eviction of ground under S. 12 (1) (1) of the Act in para 6 of the judgment held as under:- "In order to be able to seek eviction of a tenant under S. 12 (1) (f) the landlord has not only to establish that he bona fide requires the accommodation let to the tenant for non-residential purposes for the purpose of continuing or starting his business but he must further show that the landlord has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or the town concerned." Again in para 10 of the judgment the Supreme Court held that :- "The landlord in this case seeks eviction of the tenant under S. 12 (1) (f). He must, therefore, establish (i) that he requires bona fide possession of a building let for non-residential purpose for continuing or starting his business, and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the City or town concerned. The burden to establish both the requirements of S. 12 (1) (f) is squarely on the landlord and before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue. The burden to establish both the requirements of S. 12 (1) (f) is squarely on the landlord and before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue. Ordinarily, therefore, when a landlord seeks eviction under S. 12 (1) (f) the Court after satisfying itself that there are proper pleadings must frame two issues namely: (i) whether the plaintiff landlord proves that he bona fide requires possession of a building let to the tenant for non-residential purpose for continuing or starting his business; and (ii) whether he proves that he has no other reasonably suitable non-residential accommodation of his own in the city or town concerned. Without elaborating we must notice a well established proposition that any amount of proof offered without pleadings is generally of no relevance." 10A. In view of the clause (f) of sub-section (1) of S. 12 of the Act reproduced above, and the Supreme Court decision it was absolutely necessary for the plaintiff to have disclosed the fact of there being back Kotha behind the shop and how it was unsuitable for non-residential purpose for the plaintiff when he wanted the defendant to vacate the shop and Kotha occupied by him. The plaintiff no doubt, in his deposition stated that this Kotha is being used by him for storing goods being sold in the shop but in absence of pleadings to that effect as required under the Supreme Court decision referred to above, this evidence cannot be looked into. In M.M. Qasim v. Manohar Lal (1981 MPRCJ 165 SC) with reference to S. 12 (1) (f) of the Act, the Supreme Court observed when examining the case of personal requirement if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. In M.M. Qasim v. Manohar Lal (1981 MPRCJ 165 SC) with reference to S. 12 (1) (f) of the Act, the Supreme Court observed when examining the case of personal requirement if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. Further, in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court." In Jamnadas v. Mangilal (1989 MPRCJ NOC 26) a case under S. 12(1) (f) of the Act where an alternative accommodation was available with the landlord but its suitability was not pleaded and proved, this Court held a case for bona fide need as not made out. As for Shri Waghmare's argument that the finding being one of fact the same could not be interfered with in second appeal and reliance for the purpose on number of decisions would not help the plaintiff. In Budhwanti and another v. Gulab Chand Prasad; (AIR 1987 SC 1484) a case relating to landlord and tenant with reference to Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947) the Supreme Court has held as under:- "It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its right in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding." It is, therefore, held that the plaintiff/ respondent has failed to make out a case under S. 12 (1) (f) of the Act for eviction of the defendant/appellant from the suit accommodation. 11. The above, however, is not the end of the matter. The trial Court had decreed the claim for eviction against the defendant on grounds both under clause (f) and under clause (h) of S. 12(1) of the Act. (Issues No.1, 2 and 3 discussed in para Nos. 11. The above, however, is not the end of the matter. The trial Court had decreed the claim for eviction against the defendant on grounds both under clause (f) and under clause (h) of S. 12(1) of the Act. (Issues No.1, 2 and 3 discussed in para Nos. 10, 11, 12, 13, 14, 15, 16, 17 and 19 of the trial Court judgment). These findings were upheld by the First Appellate Court by the judgment under appeal (Paras 6 to 9 of the First Appellate Court Judgment). By this judgment the finding in favour of the plaintiff under clause (f) is being set aside but the finding under clause (h) still survives. The learned counsel for the parties have not urged a word about this finding. No substantial question of law as regards this finding was formulated at the time of admission of the appeal for final hearing. In absence of challenge and the circumstances aforesaid finding in favour of the plaintiff under clause (h) would remain undisturbed and decree for eviction on that ground against the defendant would have to be maintained. 12. Now that surviving ground for eviction of the defendant is under clause (h) of S. 12(1) of the Act, under S. 18 of the Act it becomes mandatory to ascertain from the tenant whether he elects to be placed in occupation of the accommodation from which he is to be evicted and if so elects, to frame suitable time schedule for the purpose. For the purpose the matter would have to be remitted to the trial Court. 13. As a result, finding in favour of plaintiff under clause (1) and eviction of defendant on that ground is set aside. Consequently payment of compensation under sub-section (6) of S. 12 is also set aside but decree for eviction on ground under clause (h) passed by the Court below is upheld. Trial Court is directed to ascertain election from defendant as required by S. 18 of the Act and then proceed to give further direction in accordance with law. Parties are directed to appear before trial Court on 3-9-1991. Parties shall bear their costs of the appeal as incurred. Pleader's fee as per schedule or certificate whichever is less. Appeal is, thus, partly allowed in the light of the directions above. A decree be drawn up accordingly.