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1995 DIGILAW 119 (GAU)

Arati Saha v. Mangal Sarkar

1995-06-16

M.SHARMA

body1995
This revision petition has been preferred against the judgment and order dated 16.11.90 and decree dated 6.12.90 passed by the Assistant District Judge, Dhubri, in Title Appeal No.36 of 1987 of his Court allowing the appeal in reversing and setting aside the judgment and decree dated 4.5.87 passed by the Munsiff No.l, Dhubri in Title SuitNo.90 of 1986, decreeing the aforesaid suit. 2. The petitioner as plaintiff instituted the above mentioned suit against the opposite party as defendant alleging that, the opposite party as tenant under the petitioner landlord, used to sublet the demised house premises without his permission; that the demised suit house is bonafide required for occupation for his son, Shri Ajoy Kumar Saha, who is an educated unemployed youth, to start his own business for his livelihood to him; that he came to know subsequently during the trial of the suit that the opposite party had built his own house and business accommodation situated at Vivekananda Road, Dhubri Town Trial Court decreed the suit and against this opposite party-defendant preferred appeal. The lower appellate Court set aside the judgment and decree of the Munsiff as aforesaid. 3. Opposite party, as defendant denied sub-letting any portion of the room or allowing others to store goods on rental basis, that he was a wholesale and retail sale dealer of tea and godown and entire premises was required for storing tea. Regarding bonafide requirement defence stand was that plaintiff s son Ajoy was managing and looking after the grocery shop of the plaintiff, situated at Mankachar and premises was not required for personal use of his son as claimed, that the plaintiff had vacant land and other house where he can start any business. 4. For consideration of this Court, issue No.2 i.e. whether the suit premises was sub-let by the defendant and issue No.3, i.e. whether the premises was required bonafide, are material, as the suit relates to ejectment of the defendant opposite party. This issue was decided against the plaintiff on the ground that plaintiff failed to adduce sufficient evidence to support his claim. Plaintiff as PW 1 named one Dilip Das but he was not examined as PW. But PW 3 who had godown contiguous to the godown of the defendant, named Dilip Das who used to keep materials on rental basis. He has been disbelieved by the Court as he was a casual visitor. Plaintiff as PW 1 named one Dilip Das but he was not examined as PW. But PW 3 who had godown contiguous to the godown of the defendant, named Dilip Das who used to keep materials on rental basis. He has been disbelieved by the Court as he was a casual visitor. PW 4 and 5 who deposed that they also used to store materials on payment rent to the defendant was disbelieved on the ground that the plaintiff did not named in his evidence nor in the plaint. Summary rejection of the evidence of all the plaintiffs witnesses as not reliable was that, these witnesses did not produce any documents in support of their deposition nor the store-keeper was examined. The nature of the evidence in my view, shows that using of the godown by others on payment of rent under the defendant was casual but fact remains that those palintiff s witnesses did keep their materials (bags) in the godown of the defendant which was rented to him by the plaintiff and the defendant realised rent from them. For keeping the bags in godown no receipt or document is necessary. As it can be presumed, from the evidence on record that, storing of bags of the witnesses was casual, but for that rent was realised. Apparently this realisation of rent by the defendant for using his premises amount to sub-letting which was not in the terms of the lease agreement. I hold that in deciding the issue the learned Courts below did not appreciate the evidence on record which is illegal as he failed to act within his jurisdiction for which the appellant was prejudiced. Accordingly on the reasons given above the issue No.2 is revised as set aside and the issue is decided in favour of the plaintiff. The reference (AIR 1972 Jammu and Kashmir 37) relied on by the Court below is not applicable in the case in hand and I respectfully disagree with it. 5. The next issue No,3 i.e. plea of bonafide requirement of the plaintiff need be revised, as materials on record has established that plea ofbonafide requirement, has sufficient force and the plea has been fully supported by the witnesses. Evidence of PW 2 and 3 established that the premises is necessary for the use of the unemployed son of the plaintiff, who was going to start his own business. Evidence of PW 2 and 3 established that the premises is necessary for the use of the unemployed son of the plaintiff, who was going to start his own business. In the case of Rajkumar Khaitan vs. BZ Khatun, AIR 1995 SC 576 , it is held that even for bonafide requirement precise name of business need not be stated. In a series of decisions it is held that, landlord can claim the property for extension of his business to increase his income which come to the meaning ofbonafide requirement. P W1 son of the plaintiff was an unemployed youth and the premises is necessary to start his own business. Further, it is also in record that the defendant has his own building and business premises. The materials on record supported the claim for bonafide requirement of the premises by the plaintiff. This issue also is decided in favour of the plaintiff. Accordingly, the findings of the first appellate Court is set aside in view of the reasons discussed above and the findings of the trial Court is resotred. 6. In the result the revision petition is allowed. Send down the records to the Court below to proceed accordingly. Opposite party is directed to pay Rs. 1,0007-as costs to the plaintiff revision petitioner.