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1997 DIGILAW 500 (MP)

Dayal Singh Gaur v. Pyari Bai

1997-08-19

C.K.PRASAD

body1997
JUDGMENT C.K. Prasad, J. 1. Both the appeals are being disposed of by this common judgment. Second Appeal No. 319/95 has been tiled by the landlord/plaintiff whereas second appeal No. 290/96 has been filed by the defendant-tenants. Tenants in both the appeals are different whereas plaintiff is one and the same. 2. Judgment and decree passed in Civil Suit No. 55-A/1979 has given rise to the Second Appeal No. 319/95 in which landlord is the appellant. C.S. No. 56-A /79 has given rise to Second Appeal No. 290/96 is which defendants - tenants (hereinafter referred to as the tenant) are the appellants. C.S. No. 55-A/79 pertains to northern block of the house whereas C.S. No. 56-A/79 is in relation to southern block. Both the suits were decreed. C.S. No. 55-A/79 was decreed by the judgment and decree dated 7.2.83, whereas C.S. No. 56-A/79 was decreed on 7.5.83. Ground for eviction urged by the landlord, and upheld by the Court, was that the tenanted premises are required by him bona fide for occupation for himself and other members of his family and he has no other reasonable suitable alternative accommodation in the city. 3. Tenant's preferred appeals against both the judgments and decrees. Appeal against the decree passed in C.S. No. 55-A/79 led to the registration of C.A. No. 4-A 1983 and the lower appellant Court by its judgment and decree dated 18.3.1985 dismissed the appeal. Aggrieved by the same tenants earlier preferred second appeal before this Court, which was registered as S.A. No. 157/85. 4. Tenant's appeal against the decree passed in C.S. No. 56-A/79 led to registration of C.A. No. 18-A/1983 and the Court of appeal below by its judgment and decree dated 16.3.1985 dismissed the appeal. Tenants earlier second appeal was registered as S.A. No. 156/1985 in this Court. 5. Both the appeals i.e. S.A. No. 156 of 1985 and S.A. No. 157 of 1985 were heard together. It is relevant here to state that landlords suits were decreed only on the ground of bona fide requirement and other grounds urged were negative. Tenants earlier second appeal was registered as S.A. No. 156/1985 in this Court. 5. Both the appeals i.e. S.A. No. 156 of 1985 and S.A. No. 157 of 1985 were heard together. It is relevant here to state that landlords suits were decreed only on the ground of bona fide requirement and other grounds urged were negative. It is relevant here to state that before the lower appellate Court tenants tiled application under Order 6 Rule 17 of the C.P.C. stating therein that the father of the landlord having died on 15.5.83, the landlord succeeds to the house presently in his occupation, as his heir, meaning thereby that the plaintiff has alternative suitable accommodation and therefore, his need is satisfied. This Court by its judgment and decree dated 26.11.90 set aside the judgment and decree of the Courts below and remanded the matter to the trial Court, in the following words:- In view of the legal position stated above, the defendants are definitely entitled to plead and prove subsequent events. It will have to be enquired as to whether the plaintiff, on the death of his father, has inherited the land and house which is reasonably suitable for his residence. Even otherwise, the burden lies on the plaintiff landlord to show that he bona fide requires the suit accommodation for his residence and that no, other reasonably suitable accommodation is available in the town or city concerned for his residence. In case the defendants are allowed to amend their pleadings, the plaintiff will also be given opportunity to explain as to whether house and accommodation inherited by him, is reasonably suitable for his residence or not. After remand of the suits by this Court, C.S. No. 55-A/79 was renumbered as C.S. No. 3-A/91 and the trial Court by its judgment and decree dated 30th August 1994 decreed this suit. The appeal preferred by the tenant i.e. C.A. No. 12-A/94 against the said decree has been allowed by the lower appellate Court by its judgment and decree dated 2.2.95. Landlord aggrieved by the same has preferred second Appeal No. 319/95. 6. Civil Suit No. 56-A/79 after remand was renumbered as C.A. No. 4-A/91 and by judgment and decree dated 30th August 1994, the trial court decreed the suit. Landlord aggrieved by the same has preferred second Appeal No. 319/95. 6. Civil Suit No. 56-A/79 after remand was renumbered as C.A. No. 4-A/91 and by judgment and decree dated 30th August 1994, the trial court decreed the suit. However, the appeal preferred by the tenant against the aforesaid judgment and decree i.e. C.A. No. 13-A/94 has been dismissed by the judgment and decree dated 8.3.96 by the lower appellate Court and the tenants aggrieved by the same have preferred second Appeal No. 290/96. 7. Second Appeal No. 319/95 has been admitted, on the following substantial question of law:- Whether the lower appellate Court rightly reversed the finding recorded by the trial court for the reasons mentioned in paragraphs 10 to 12 in the impugned judgment ? 8. Second Appeal No. 290/96 has been admitted by order dated 9.4.96, on the following substantial question of Law:- Whether in view of the admitted position that the appellant is living in the house belonging to his wife, the appellant can succeed on the ground of bonafide need that he required the said house for residence of himself and the members of his family ? 9. Facts necessary for the decision of the aforesaid substantial questions of law are that the plaintiff is the landlord of the suit accommodation bearing nos. 2715 and 2716 situated in the town of Itarsi and the defendants are the tenants in that. Original tenants in both the suits are dead and they have been substituted by their legal representatives. According to the plaintiff he purchased the suit accommodation on a consideration of Rs. 22,000/- from one Dileep Singh which has north and south blocks and he requires both the suit accommodation for his residence. Tenants in order to demonstrate that the landlord has suitable alternative accommodation, contended that he has purchased another house in front of the suit accommodation for a consideration of Rs. 16,000/- vide sale deed dated 3.8.91 had he is residing in that house itself. It was further contended that he has another ancestral house in Kheda Mohalla of Itarsi and the same is also suitable for his residence. 10. 16,000/- vide sale deed dated 3.8.91 had he is residing in that house itself. It was further contended that he has another ancestral house in Kheda Mohalla of Itarsi and the same is also suitable for his residence. 10. The trial Court and the lower appellate Court in their judgment and decree, which has given rise to second Appeal No. 290/96 held that the plaintiff requires suit accommodation bona fide and the accommodation referred to above is not an alternative suitable accommodation for the plaintiff. However, the lower appellate Court after reversing the finding of the trial Court by its judgment and decree, which led to S.A. No. 319/95, held that need of the landlord is not bonafide. 11. It is relevant here to state that the house in which the landlord is presently residing was earlier purchased by his father and after his death property has been purchased by the landlord's wife. From before these purchases the landlord was residing as tenants in this accommodation. It is the stand of the landlord that after the purchase of the accommodation presently, in his occupation, he became the tenant of his wife and therefore, the said accommodation cannot be considered to judge his bona fide requirement. As regards the ancestral house of Mohalla Kheda in the town of Itarsi, the stand of the plaintiff is that the same is in dilapidated condition and not suitable for residence. 12. Shri Samaiya, appearing on behalf of the tenants submits that onus lies on the landlord to establish that he has no suitable alternative accommodation and for that he has to plead and prove the same. According to his submission the landlord having not pleaded about the alternative accommodation available to him the Court is not required to go into this question at all and the suits are fit to be dismissed on this ground alone. While elaborating his submission, Shri Samaiya states that the landlord in the plaint no where stated that he has no other suitable alternative accommodation, which according to him is sine-qua-non for decree for eviction. While elaborating his submission, Shri Samaiya states that the landlord in the plaint no where stated that he has no other suitable alternative accommodation, which according to him is sine-qua-non for decree for eviction. In support of the aforesaid submission learned counsel has placed reliance on the judgment of the Apex Court in the case of Hasmat Rai and another vs. Raghunath Prasad A.I.R. 1981 S.C. 1711 and my attention has been drawn to the following passage from paragraph 16 of the judgment which read as under:- Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bonafide requires the same for his won use and occupation, but there is an additional condition he must fulfill namely he must further show that he has no other reasonable suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstances for the Court not go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the trial Court and the first appellate Court committed a manifest error apparent on the record by up-holding the plaintiffs case, by awarding possession also on the ground neither pleaded nor suggested the landlord must have been quite award that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the Court subordinate to it that the respondent landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as chemist and Druggists as also for his residence is vitiated beyond repair. 13. It is relevant here to state that the pllaintiff has stated in the plaint that the house presently, in his occupation has been purchased by Smt. Shalnee Gaur, Teacher in Government Higher Secondary School for a sum of Rs. 18000/- and he is not the owner of the same. It has been further stated that the same is not sufficient and suitable in all respects for his bona fide need and need of his 3 daughters and a son who arc all of marriageable age. 18000/- and he is not the owner of the same. It has been further stated that the same is not sufficient and suitable in all respects for his bona fide need and need of his 3 daughters and a son who arc all of marriageable age. He has further stated that the house standing in the plot, measuring 30 x 20 feet, is not suitable for residence as the same had fallen down and middle portion, which is standing, is in dangerous condition. Therefore, the very assumption of Shri Samaiya that the plaintiff is silent about the alternative accommodation is not correct on fact. In my opinion, ingredients are required to be stated and not the words of the statute. In Husmat Rai's case (supra) there was complete silence on the part of the landlord whereas in the present case, situation is different. In that view of the matter, decision relied on by Shri Samaiya is clearly distinguishable. 14. Shri Samaiya further submits that the decision of the case cannot be based on ground out side the pleading of the parties and it is the case pleaded that has to be proved. This submission has been advanced by Shri Samaiya on an assumption that the plaintiff having not pleaded anything about alternative accommodation, the Court below was not obliged to go into this question at all and the suits were fit to be dismissed. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Messrs. Trojan & Co. vs. RM. N.N. Nagappa Chettiar A.I.R. 1953 S.C. 235 and my attention has been drawn to the following passage from paragraph 22 of the judgment which reads as under: It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found without an amendment of the plaint, the Court was not entitled to grant a relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. 15. The whole edifice on which Shri Samaiya has based his argument is erroneous. The plaintiff has pleaded that the accommodation presently in his occupation is not suitable for his residence and that of his major son and 3 major daughters. 15. The whole edifice on which Shri Samaiya has based his argument is erroneous. The plaintiff has pleaded that the accommodation presently in his occupation is not suitable for his residence and that of his major son and 3 major daughters. The other house, it has been specifically pleaded to be, in dilapidated condition. In that view of the matter, the authority relied on by the learned counsel is clearly distinguishable. I am of the opinion that the plaintiff has pleaded and proved that the suit accommodation is required by him bona fide and has no suitable alternative accommodation available to him for his residential purpose. 16. Shri Ajit Singh appearing on behalf of the landlord submits that even if it is assumed, that the property purchased by his wife is the property of the landlord, the accommodation in the said house does not fulfill his requirement. He further submits that the house situated in Mohalla Kheda is in dilapidated condition and the same is not fit for residence. However, Shri Samaiya appearing on behalf of the tenant submits that the accommodation presently, in occupation of the landlord, which has been purchased by his wife meets his bona fide requirement. He further submits that another house at Mohalla Kheda also meet the requirement of the landlord, Accordingly, he submits that the suit accommodation is not required bona fide by the landlord. 17. It is relevant here to state that it has come in the evidence that the landlord has 3 daughters and one son and the age of the eldest daughter is 31 years whereas twin sisters are aged about 28 years. The age of the son of the landlord is 25 years. The house presently in occupation of the landlord, and purchased by his wife has one Veranda in front and one in the rear and one room in between. About other ancestral house at Kheda, it has come in evidence that the same is in dilapidated condition. It has further come in evidence that the suit accommodation occupied by the tenants is bigger than the accommodation in which the landlord is presently residing. About other ancestral house at Kheda, it has come in evidence that the same is in dilapidated condition. It has further come in evidence that the suit accommodation occupied by the tenants is bigger than the accommodation in which the landlord is presently residing. In view of the evidence that the accommodation presently in occupation of the landlord consists of only a room and 2 Veranda and he having 3 young daughters and one major son, requirement of the accommodation, which is bigger than the accommodation presently in his occupation, cannot be said to be lacking bona fide. In the facts of the present case, I have no doubt in my mind that the requirement of the plaintiff is not mere desire but bona fide. The other ancestral house, as stated earlier being in dilapidated condition is not suitable for the landlord. 18. In the result, S.A. No. 290/96 is dismissed whereas S.A. No. 319/95 is allowed. Judgment and decree dated 2.2.95 passed in C.A. No. 12-A/94 by the IInd Additional Judge to the Court of District Judge, Hoshangabad is set aside. In the facts and circumstances of the case, however, there shall be no order as to cost, in either of the appeals. In order to facilitate the tenants to make alternative arrangement, I direct that they shall not be dispossessed from the suit accommodation for a period of 3 months from today. Appeal allowed