Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 559 (RAJ)

Ramratan v. Bulakidas through his L. Rs.

2000-05-02

SUNIL KUMAR GARG

body2000
Honble GARG, J.–This is a second appeal filed on behalf of the appellant-defendant against the judgment and decree dated 11.8.1980 passed by the learned Civil Judge, Bikaner, by which the learned Civil Judge, Bikaner dismissed the appeal of the appellant-defendant and upheld the judgment and decree dated 28.4.1978 passed by the learned Munsiff, Bikaner, by which the learned Munsiff, Bikaner decreed the suit of the plaintiff- respondent for eviction of the defendant-appellant on the ground of reasonable bonafide necessity as envisaged under Section 13(1)(h) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as `the Act of 1950). Note :- That during the pendency of this second appeal, the respondent-plaintiff Bulakidas died on 17.8.1995 and, thereafter, his L.Rs. were brought on record on 13.8.1999 in this second appeal. (2). The facts giving rise to this second appeal are as follows:- The plaintiff respondent-Bulakidas now deceased (for future he will be referred as deceased plaintiff) has filed a suit on 11.12.1970 in the Court of Munsiff, Bikaner for arrears of rent and ejectment stating that the defendant-appellant is a tenant in the premises situated at Court Gate in Bikaner and the defendant appellant took that premises on monthly rent of Rs. 30/- and he also executed a rent note Ex.1 on 1.5.1968 in favour of the deceased plaintiff and the deceased plaintiff seeks eviction of the appellant defendant on two grounds- (i) that the defendant appellant had committed default in payment of rent. Note :- This point is not in dispute in this second appeal and the case of the deceased plaintiff for eviction of appellant defendant is based on the ground of reasonable bonafide necessity. (ii) That the deceased plaintiff lived in the house of his brother and since there was quarrel among the ladies and he has no house of his own, therefore, he wants his own house i.e. disputed premises, which is in the possession of the defendant appellant as a tenant and his brother also wanted that his brother deceased plaintiff should vacate his house, and therefore, the premises in question are required by the deceased plaintiff reasonably and bonafidely and for that he wants eviction of the appellant defendant. Note:- That during the pendency of the suit, on 19.3.1976, the deceased plaintiff filed an application under Order 6, Rule 17 CPC, which was allowed by the lower court and one more para Kha Kha was added in the plaint and amended plaint was filed by the deceased plaintiff in the lower court on 26.5.1976 and amended para Kha Kha runs as under:- ^^¼[k[k½ ;g fd oknh fdjk;s ds edku esa jgrk gS tks mlus jgus ds fy;s vLFkkbZ rkSj ij fy;k Fkk] edku ekfyd dk cM+k ifjokj gS rFkk og edku fdjk;s ij ysus dh ifjfLFkfr esa ugha Fkk exj vLFkkbZ rkSj ij mlus oknh dks edku jgus ds fy;s fn;k FkkA vc og Hkh edku [kkyh djus ds fy;s rdktk dj jgk gS rFkk mlds fy;s edku [kkyh djkuk vko;d gSA izfroknh lEiUu leFkZ O;fDr gSA mls edku jgus dh fey ldrk gSA vr% fMxzh u lkfnj Qjekus esa oknh dks T;knk dfBukbZ gS o fMxzh lkfnj gksus ls izfroknh dks dksbZ dfBukbZ ugha gksxh**A vr% xzsVj gkMZfki oknh dh rqyuk esa izfroknh dks de gSA** The case of the deceased plaintiff is that the suit premises are required by him reasonably and bonafidely and, therefore, suit be decreed against the appellant defendant. The suit of the deceased plaintiff in the lower court was contested by the appellant defendant by filing a written statement on 30.7.1971 amended on 4.8.1976 admitting that he is the tenant of the deceased plaintiff and the deceased plaintiff is living in his own house situated at Mohallah Sutharon-Ki-Badi Gawad in Bikaner and the deceased plaintiff has ration card in his own name where the address of this house is mentioned and he is not living in the rented house as alleged by the deceased plaintiff in his amended plaint and the defendant appellant has no other alternative accommodation and he is living in the disputed house for the last 20 years and initially rent was Rs. 15/- p.m. and later on, it was increased before the execution of the rent deed. The deceased plaintiff is living with his brother and no partition has taken place between the deceased plaintiff and his brother and the deceased plaintiff is taking the excuse of partition only to get the house in dispute vacated from the defendant appellant, otherwise there is no need for him and, therefore, the suit of the deceased plaintiff be dismissed. The deceased plaintiff is living with his brother and no partition has taken place between the deceased plaintiff and his brother and the deceased plaintiff is taking the excuse of partition only to get the house in dispute vacated from the defendant appellant, otherwise there is no need for him and, therefore, the suit of the deceased plaintiff be dismissed. On the pleadings of the parties, the learned lower court framed the following issues on 12.11.1971 and amended issue no. 5 on 6.10.1976: ^^okn gsrq ¼1½ vk;k izfroknh fMQkYVj gS \ ¼2½ vk;k oknh dks DokVj eqruktk dh fjtuscy cksuksQkbM futh vko;drk gS\ ¼3½ vk;k uksfVl tokcnkok ds iwjk ua- 8 ds dkj.kksa ls voS/k gS \ ¼4½ vuqrks"k\ ethn ru[khg ua- 5 ¼5½ ;fn fookn izu la[;k 2 dk fu.kZ; oknh ds i{k esa fd;k tkrk gS rks D;k fMØh ckcr bu[kyk; vLohdkj fd, tkus dh cfuLir fMØh lkfnj djus esa rqyukRed dfBukbZ vf/kd gksxh\** Before the amendment of the plaint and written statement, both the parties led evidence and produced some documents. Three witnesses were examined on behalf of the deceased plaintiff and seven witnesses were examined on behalf of the appellant defendant. Note : That when the plaint was amended in the year 1976, both the parties did not lead any evidence after the amended issue no.5. The learned Munsiff, Bikaner vide his judgment and decree dated 28.4.1978 decreed the suit of the deceased plaintiff against the defendant appellant for eviction of the appellant defendant on the ground of reasonable bonafide necessity and decided issues no. 2 & 5 in favour of the deceased plaintiff and against the defendant appellant. Aggrieved from the judgment and decree dated 28.4.1978 passed by the learned Munsiff, Bikaner, the appellant defendant preferred an appeal in the Court of District Judge, Bikaner, which was transferred to Civil Judge, Bikaner and the learned Civil Judge, Bikaner vide his judgment and decree dated 11.8.1980 dismissed the appeal of the appellant defendant and upheld the judgment and decree dated 28.4.1978 passed by the learned Munsiff, Bikaner. Note:- From the perusal of the file of the first appeal, it appears that an application under Order 41, Rule 27 CPC was filed by the defendant appellant on 11.7.1980 requesting for taking on record four documents, but the learned Civil Judge, while deciding the appeal on 11.8.1980 did not pass any order on this application of the defendant appellant and the same remained pending in the file. Aggrieved from the judgment and decree dated 11.8.1980 passed by the learned Civil Judge, Bikaner, the appellant defendant has filed this second appeal in this Court. (3). During the pendency of this second appeal, this Court passed an order dated 16.03.1999 on the application dated 11.7.1980 under Order 41, Rule 27, which was lying pending in the file of the first appeal and this court framed the following two issues to be determined by the first appellate Court:- ``(1) Whether the documents accompanying the application moved under Order 41, Rule 27, CPC before the learned first appellate court are receivable in evidence in the present case within the meaning of Order 41, Rule 27, CPC. (2) Whether the documents accompanying the application moved under Order 41, Rule 27 CPC are relevant and admissible to the controversy involved between the parties. (4). The learned Civil Judge on receiving the order of this Court dated 16.03.1999, passed an order on 1.6.1999 and held:- (1) That the documents which were produced by the defendant appellant alongwith the application under Order 41, Rule 27 CPC are not appropriate to be taken on record; (2) That looking to the dispute between the parties, these documents are not relevant and should not be taken on record. (5). It may be stated here that when this order was passed, the learned counsel for the appellant defendant filed objections in this Court on 21.10.1999. (6). When this second appeal was admitted by this Court on 27.3.1981, the following substantial questions of law were framed: ``(1) Whether the questions that (i) there had been a partition between the plaintiff and his brother and the house in dispute fell to the share of the plaintiff and, (ii) that the plaintiff had started living in a rented house during the pendency of the suit, were not taken in the pleadings and no amount of evidence in respect of these questions could be looked into ? (2) Whether the first appellate court was in error in deciding the question of comparative hardship in favour of the landlord, merely on the ground that the plaintiff was allegedly living in a rented house? (3) Whether the first appellate court was right in holding that there was a family partition between the plaintiff and his brother and the documents Ex.A.3 and A.4 were not properly considered in arriving at that findings ? (4) Whether the first appellate court committed an error in failing to decide the application of the defendant appellant under Order 41, Rule 27, CPC and what its effect ? (7). Before substantial questions of law are examined, there is a preliminary objection by the learned counsel for the deceased plaintiff respondent that in second appeal, the questions of fact cannot be looked into and he has further argued that though in this case substantial questions of law were framed by this Court on 27.3.1981, actually since there are concurrent findings of fact recorded by both the courts below, no substantial question arises and apart from this, in second appeal, findings of fact cannot be disturbed or cannot be varied. (8). On the other hand, the learned counsel for the appellant defendant contended that this is a fit case where in second appeal, findings of fact should be set aside as they are based on erroneous interpretation of law and also there is error of law and procedure, inasmuch, documents which were produced under Order 41, Rule 27 CPC were not considered and there is variance between pleadings and proof etc. etc. (9). To appreciate the above contentions, the scope of Sections 100 and 101 CPC may be seen. (10). Sections 100 and 101 read together make it quite clear that:- (1) a second appeal will lie only on the ground of an error in law or procedure; and that (2) a second appeal will not lie merely on the ground of an error on a question of fact. (11). About substantial question of law, it can be said that by the Amendment Act of 1976 the three grounds on which a second appeal could lie under the former Sec. 100 have been abrogated and in their place only one ground has been substituted which is a highly stringent ground, namely, that there should be a substantial question of law. About substantial question of law, it can be said that by the Amendment Act of 1976 the three grounds on which a second appeal could lie under the former Sec. 100 have been abrogated and in their place only one ground has been substituted which is a highly stringent ground, namely, that there should be a substantial question of law. It is now, therefore, not enough if a mere question of law is involved. It must be a substantial one. The appellant must show that some substantial question of law, as opposed to a substantial question of fact, is involved for decision. Whether a particular question is substantial or not must depend on the circumstances of each case and reported decisions are mostly of illustrative value. However generally a question of law which is not dependent upon examination of the evidence and requires no fresh investigation of facts, a finding based on evidence but perverse in the sense that no normal person could arrive at that finding, a finding based on no legal evidence or without judicial consideration of the facts in issue and the evidence on record are substantial questions of law depending of course on the effect caused by them on the adjudication of the issues between the parties. (12). The words `substantial question of law mean a substantial question of law as between the parties in the case involved and not merely a question of general importance. (13). If there is a finding based on no evidence or in disregard of evidence or on inadmissible evidence or on assumptions of facts without inquiry, such findings can be disturbed in second appeal, as they amount to an error of law. (14). The learned counsel for the appellant defendant has relied on the decision of the Honble Supreme Court in Jagdish Singh vs. Nathu Singh (1), where it has been held that where the finding by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. (15). On the other hand, the learned counsel for the deceased plaintiff respondent has relied on the following decisions:- (1) Kashibai & Anr. (15). On the other hand, the learned counsel for the deceased plaintiff respondent has relied on the following decisions:- (1) Kashibai & Anr. vs. Parwatibai (2), where it has been held by the Honble Supreme Court that High Court cannot re-appreciate the evidence and interfere with the concurrent findings of fact of courts below without even formulating any question of law. The High Court has no jurisdiction to entertain a second appeal on ground of erroneous findings of fact, based on appreciation of relevant evidence. (2) Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar & Ors. (3), where the Honble Supreme Court has held that concurrent findings of fact howsoever erroneous cannot be disturbed by the High Court in exercise of powers under Section 100 CPC. (16). In this respect, the latest view of the Honble Supreme Court is found in Roop Singh vs. Ram Singh (4), where it has been held that under Section 100 of the CPC, jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC. (17). I think on this point I need not discuss other rulings as the position of law is very clear that as a rule High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be or as a rule in second appeal, finding of fact should not be disturbed, but if, as already stated above, they are based on no evidence or disregard of evidence or on inadmissible evidence or against the basic principles of law or on the face of it there appears error of law or procedure or when there is a complete variance between pleadings and proof, such findings can be disturbed. (18). Looking to the above proposition of law, the facts and findings of this case in second appeal are being examined. Substantial Question No. 1(i) (19). (18). Looking to the above proposition of law, the facts and findings of this case in second appeal are being examined. Substantial Question No. 1(i) (19). On this substantial question of law, the case of the defendant appellant is that the issue that there had been a partition between the deceased plaintiff and his brother and that the house in dispute fell to the share of the deceased plaintiff and further more, that the deceased plaintiff had started living in a rented house of PW 2 has not been mentioned specifically in the plaint and, therefore, no evidence which has been led by the deceased plaintiff on this point can be looked into. On the contrary, it has been argued on behalf of the deceased plaintiff that no doubt the word partition has not been used in the plaint, but this issue was impliedly inherent in the pleadings of the deceased plaintiff as evidence has been led by both the parties taking it for granted that the case of the deceased plaintiff is that partition has taken place between the deceased plaintiff and his brother and the disputed house came in the share of the deceased plaintiff. Position of law in respect to variance between pleadings and proof. Rule 2 of Order 6 CPC runs as follows:- 2. Pleading to state material facts and not evidence. (1) Every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words. Facts are of two kinds, facta probanda and facta probantia. Facts on which the party pleading relies for his claim or defence are called facta probanda. And the facts by means of which they are to be proved are called facta probantia. The former are material facts, the latter evidence to prove the former. It may be stated here that pleadings should not state the evidence by which the facts are to be proved. And the facts by means of which they are to be proved are called facta probantia. The former are material facts, the latter evidence to prove the former. It may be stated here that pleadings should not state the evidence by which the facts are to be proved. The Honble Supreme Court in Om Prabha vs. Abnash Chand (5) has observed that the ordinary rule of law is that evidence should be given only on plea properly raised and not in contradiction of the plea. The rule of secundum allegata et probata is based mainly on the principle that no party should be taken by surprise by the change of case introduced by the opposite party. Therefore, the test, when an objection of this kind is taken, is to see whether the party aggrieved has really been taken by surprise, or is prejudiced by the action of the opposite party. In applying this test the whole of the circumstances must be taken into account and carefully scrutinised to find out whether there has been such surprise or prejudice as will disentitle a party to relief. Every variance, therefore, between pleading and proof is not necessarily fatal to the suit or defence and the rule of secundum allegata et probata will not be strictly applied where there could be no surprise and the opposite party is not prejudiced thereby. A variation which causes surprise and confusion is always looked upon with considerable disfavour. But, where a ground though not raised in the pleadings is expressly put in issue or where the new claim set up is not inconsistent with the allegations made in the pleadings and is based on facts alleged therein, there is no question of surprise to the opposite party. So also, where although there was no specific plea or specific issue on a particular question, the parties have gone to trial with the full knowledge that the question was in issue and adduced evidence, there can be no prejudice. Whether a plea has been raised may be gathered from the pleadings taken as a whole, and if a sufficient plea is disclosed and the parties have led evidence on the point the court can give relief on such plea. (20). Looking to the above principles of law, it is to be seen whether there is variance between the pleadings and proof in this case or not. (21). (20). Looking to the above principles of law, it is to be seen whether there is variance between the pleadings and proof in this case or not. (21). Before we proceed further, some of the authorities referred by both counsel should be mentioned here. (22). The learned counsel for the appellant defendant has relied on the decision of the Honble Supreme Court in Trojan & Co. Ltd. vs. Nagappa Chettiar (6). In that case, the Honble Supreme Court has laid down the following law:- ``The decision of a case cannot be based on grounds out side the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment in the plaint the court held was not entitled to grant the relief not asked for. On this proposition of law, the learned counsel for the appellant defendant has stressed upon the point that since the case of partition is not pleaded by the deceased plaintiff respondent, it should not be looked into. (23). On the other hand, the learned counsel for the deceased plaintiff respondent has relied on a decision of the Honble Supreme Court in Bhagwati Prasad vs. Chandramaul (7). In that case, the Honble Supreme Court, after analysing the law laid down in the case of Trojan & Co. Ltd. vs. Nagappa Chettiar (supra), has further stated that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not disentitle a party from relying upon it if it is satisfactorily proved by evidence. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. But, if the parties led evidence knowing what they are going to allege and prove, then in such case general rule would not be applicable and the case would be covered by an issue by implication that though the matter has not been specifically pleaded, yet it is implied in the pleadings of the parties. In Ram Sarup Gupta (dead) by L.Rs. vs. Bishun Narain Inter College & Ors. (8), the Honble Supreme Court has held that it is not desirable to place undue emphasise on form, instead, substance of pleadings should be considered. (24). Judging from the above, angle, the facts of the present case are being examined. (25). The learned Civil Judge in his judgment dated 11.8.1980 specifically considered this aspect and has come to the conclusion that though the issue of partition has not been specifically mentioned by the deceased plaintiff respondent in his plaint, yet it is covered by implication. In my opinion, his findings on this point are acceptable, looking to the proposition of law just mentioned above. By coming to the above conclusion, the learned Civil Judge has not committed any error of law or fact. He has further come to the conclusion that there has been a partition between the deceased plaintiff respondent and his brother and the disputed house fell to the share of the deceased plaintiff respondent and the house situated at Sutharon Ki Badi fell to the share of his brother and the learned Civil Judge has come to the conclusion finally that the house in dispute came to the share of the deceased plaintiff respondent and in my opinion, his findings are correct one and it cannot be said that they suffer from the point that there is variance between pleadings and proof, as both the parties were aware of the fact that the issue of partition is in dispute and evidence has been led by the deceased plaintiff respondent and the same has been rebutted by the defendant appellant. The learned Civil Judge (first appellate court) has come to the above conclusion by placing reliance on Ex.1, rent note executed by defendant appellant himself, in which there is a mention of partition as well as from oral evidence led by both the parties. Since the rent note Ex.1 has been executed by defendant appellant himself in favour of the deceased plaintiff respondent in which there is a mention of the fact that in partition disputed house has fallen to the share of deceased plaintiff respondent, now appellant defendant cannot take other stand and he is estopped from saying now that the fact of partition stands nowhere. (26). Therefore, for the aforesaid reasons, it can be said that the fact of partition can be taken into consideration from the pleadings of the parties and the submission of the learned counsel for the appellant defendant that no amount of evidence in respect of this question could be looked into, is not acceptable. Therefore, the findings of the learned Civil Judge in this respect are legally sustainable. (27). Thus, the substantial question No.1(i) is decided in favour of the deceased plaintiff respondent and against the defendant appellant. Substantial question 1 (ii) (28). The learned Civil Judge has further come to the conclusion that since Oct. 1971, the deceased plaintiff respondent has been living in the house of PW 2 Bulakidas Joshi. In my opinion, this finding of the learned Civil Judge would be hit by the principles of variance between pleadings and proof. The main para of the plaint in this respect is 3 Kha in which nowhere it is mentioned that the deceased plaintiff respondent is living in a rented house. In this case, the suit was filed on 11.12.1970 and the plaint was amended on 26.5.1976 in which para 3 Kha Kha was introduced, where there is a mention that the deceased plaintiff respondent is living in a rented house. (29). In this case, the suit was filed on 11.12.1970 and the plaint was amended on 26.5.1976 in which para 3 Kha Kha was introduced, where there is a mention that the deceased plaintiff respondent is living in a rented house. (29). It may be mentioned again here that after the amendment of para 3 Kha Kha in the year 1976, no evidence was led by the deceased plaintiff respondent and whatever evidence has been led by him was led before this amendment, meaning thereby before this amendment, there is not an iota of fact in the pleadings of the deceased plaintiff respondent that he is living in a rented house, though contrary to it he has led evidence in the lower court. In my opinion, this evidence would certainly be hit by principles that there is variance between pleadings and proof and, therefore, the finding of the learned Civil Judge that deceased plaintiff respondent is living in the rented house of PW 2 is not acceptable and liable to be set aside. (30). The learned counsel for the appellant defendant has mainly stressed during the course of his argument and wants to prove the fact that the deceased plaintiff respondent is not living in the rented house of PW 2 and for that purpose he has relied upon the application u.Order 41, Rule 27 filed in the first appellate Court and he has also tried to rely on Ex.A3, A4 and other parts of some oral and documentary evidence. (31). Since the fact that deceased plaintiff respondent is living in a rented house, has not been specifically mentioned in the plaint, the evidence led to prove this fact should not be considered and, thus the rest of the argument of the learned counsel for the appellant defendant in respect of admission of documents filed alongwith the application under Order 41, Rule 27 CPC are not being considered, as they are not necessary now as his case on this point has been accepted and it is held that the finding of the learned Civil Judge that the deceased plaintiff respondent was living in a rented house suffers from the principles of variance between pleadings and proof and, therefore, not acceptable. Thus, it is held that the deceased plaintiff respondent was not living in a rented house and he was living in the house of his brother. (32). Thus, it is held that the deceased plaintiff respondent was not living in a rented house and he was living in the house of his brother. (32). Therefore, the substantial question 1(ii) is decided in favour of the defendant appellant and against the deceased plaintiff respondent. (33). The next question is what would be the effect now on the findings on issues no.2 and 5 when the substantial question no. 1(i) is decided in favour of the deceased plaintiff respondent and against appellant defendant and no.1(ii) is decided in favour of the appellant defendant and against the deceased plaintiff respondent. (34). Issue no.2 relates to reasonable bonafide necessity of the deceased plaintiff respondent in respect to disputed premises. In this respect, there is a concurrent findings of fact recorded by both the courts below that the premises in question are required by the deceased plaintiff respondent and his family reasonably and bonafidely and that is why both the courts below decided issue no.2 in favour of the deceased plaintiff respondent. Note :- One thing has to be kept in mind that both the courts below also held that the deceased plaintiff respondent was tenant for sometime of PW2 Bulakidas Joshi, but this fact has not been approved by this Court in second appeal. (35). Therefore, the case has to be examined now whether after excluding this aspect, the case of the deceased plaintiff respondent on issues 2 and 5 still holds good or not. (36). Before this matter is examined, what is the legal position in respect to reasonable bonafide necessity may be seen. (37). In order to prove a reasonable and bonafide requirement of the premises as a ground of eviction, the landlord must prove the following three elements which must co-exist to sustain the landlords suit for possession of the premises:- ``(1) The landlord requires the premises for his own use as owner. (2) His requirement is reasonable and bonafide for himself or for family. (3) Non-availability of an accommodation in the city or town for that purpose. (38). The question involved has three components (1) whether the plaintiff has a necessity, (2) whether it is bonafide and (3) whether it is reasonable. The first one whether the plaintiff has a necessity for the suit premises is primarily a question of fact. (3) Non-availability of an accommodation in the city or town for that purpose. (38). The question involved has three components (1) whether the plaintiff has a necessity, (2) whether it is bonafide and (3) whether it is reasonable. The first one whether the plaintiff has a necessity for the suit premises is primarily a question of fact. Likewise, whether it is bonafide is also largely a question of fact, but whether the necessity is reasonable will undoubtedly attract well known legal principles for judging objectively whether the necessity is reasonable or otherwise. In the second appeal the Court has to give due regards to the findings of the courts of fact regarding the first and second component but regarding the third one namely, for judging the reasonableness of the necessity the matter has to be judged in the light of well known principles. (39). Apart from the above, there are some pronouncement of Honble Supreme Court how the issue of reasonable bonafide necessity should be judged by the court: (1) In Mrs. Meenal Eknath Kshirsagar vs. M/s. Traders & Agencies & Anr. (9) it has been held that the landlord is the best Judge of his residential requirements; (2) In Ragavendra Kumar vs. Firm Prem Machinary and Co. (10), it has been held that the landlord is best Judge of his requirement for residential or business purpose and he has got complete freedom in the matter. (40). Looking to the above proposition of law, the issue no.2 is being examined:- (41). In Para 9 of the judgment of the learned Civil Judge (first appellate court) dated 11.8.1980 it has been specifically held by the learned Civil Judge that there is ample evidence to prove that partition had taken place between the deceased plaintiff respondent and his brother and the house situated at Sutharon Ki Badi fell to the share of brother of the deceased plaintiff respondent and the disputed premises came to his share and he has become the owner of the disputed house. There is specific finding in para 14 of the judgment of the learned Civil Judge that the father of the deceased plaintiff respondent left only two houses and not three as alleged by the defendant appellant and out of these two houses, one has fallen to the share of the brother of the deceased plaintiff respondent and the other to the share of deceased plaintiff respondent. The learned Civil Judge has further come to the conclusion that since deceased plaintiff respondent was living in a rented house, though his house is in the occupation of the defendant appellant as a tenant, therefore, his need is reasonable and bonafide. Note:- The fact that the deceased plaintiff respondent was living in the rented house of PW2 has not been held to be proved by this Court. (42). Now the next question arises that in the absence of this finding, whether the need of the deceased plaintiff respondent should be treated bonafide or not. (43). In this respect, para 18 of the judgment of the learned Civil Judge dated 11.8.1980 may be seen. Learned Civil Judge was aware of the fact that in case it is found that the deceased plaintiff respondent was not living in the rented house of PW2 as alleged by him in his evidence and it is found that he is living in the house of his brother, all the same, the case of the deceased plaintiff respondent on the point of reasonable bonafide necessity should be treated as proved, as the deceased plaintiff respondent wants to come to his own house from the joint house and such need is a reasonable bonafide need. In my opinion, these findings of the learned Civil Judge clearly prove the case of the deceased plaintiff respondent that the disputed premises are required by him reasonably and bonafidely and the disputed house came to his share on partition. (44). Apart from this, there is also no ulterior motive on the part of the deceased plaintiff respondent and in absence of it, his case on reasonable bonafide necessity should also be accepted. (45). For the aforesaid reasons, the finding of the learned Civil Judge that the disputed premises are required by the deceased plaintiff respondent reasonably and bonafidely, is correct one and it does not suffer from any error of law or procedure and, therefore, this Court in second appeal should not interfere with the same and interference is made to some extent, but it does not affect the conclusion that issue No.2 should be treated as decided in favour of the deceased plaintiff respondent. Note:- Thus, even if substantial question No. 1(ii) is decided in favour of defendant appellant, the findings on issue no. Note:- Thus, even if substantial question No. 1(ii) is decided in favour of defendant appellant, the findings on issue no. 2 regarding reasonable bonafide necessity in favour of the deceased plaintiff respondent would not be affected. (46). Now, issue no. 5 may be examined. (47). On this issue, the case of the deceased plaintiff respondent is that para 3 kha kha was introduced through amendment dated 26.5.76 and there is also no dispute that after this amendment in the plaint by the deceased plaintiff respondent, defendant appellant also amended his written statement on 4.8.1976, but both the parties have led no evidence in respect of amended paras of their pleadings. The learned Civil Judge (first appellate court) held that since the defendant appellant has not been able to prove that the deceased plaintiff respondent has another house, therefore, issue of comparative hardship was decided in favour of deceased plaintiff respondent and against the defendant appellant. In my opinion, this finding of fact of the learned Civil Judge (first appellate court) does not suffer from material error of law. (48). Apart from this, in Dhanraj vs. Shanker Lal (11), this Court has held that issue of comparative hardship is a question of fact and such findings cannot be challenged in second appeal. From this point of view also, the findings of the first appellate Court on this issue do not call for any interference by this Court. (49). The argument of the learned counsel for the appellant defendant is that burden of proving comparative hardship was on the plaintiff as held by this Court in Jagdish Narain vs. Dwarka Das (12) and since in this case the deceased plaintiff respondent has led no evidence, therefore, he has failed to discharge burden on his part and this issue no.5 should have been decided against the deceased plaintiff respondent. But, in my opinion, this argument cannot be accepted for the following reasons:- (1) That both the parties have led no evidence on this issue, as stated above. (2) That the defendant appellant has failed to prove that the deceased plaintiff respondent has another alternative accommodation. But, in my opinion, this argument cannot be accepted for the following reasons:- (1) That both the parties have led no evidence on this issue, as stated above. (2) That the defendant appellant has failed to prove that the deceased plaintiff respondent has another alternative accommodation. (3) That the deceased plaintiff respondent wants to come to his own house from the house of his brother, while defendant appellant is a tenant and in such case, comparative hardship would be in favour of deceased plaintiff respondent if he is not allowed to come to his own house in comparison to appellant defendant as he can take another house on rent. (4) On this point, a decision of the Honble Supreme Court in Hiralal Moolchand Doshi vs. Barot Raman Lal Ranchhoddas (13) may also be seen where, the following proposition of law has been laid down:- ``In a suit for eviction on the ground of bonafide personal requirement the landlord is not supposed to have pleaded his own comparative hardship in the plaint itself. Sec. 13(2) comes into play at the stage when the court is satisfied that the ground contained in Cl. (g) of sub-sec. (1) of Sec. 13 has been made out. It is at that stage that the court has to examine the question of comparative hardship. It is thus not necessary to plead in the plaint itself. Often the parties at the stage of recording of evidence of bonafide personal requirement also lead evidence as to the comparative hardship of the landlord or the tenant. But such averments are not required to be pleaded in the plaint itself to give cause of action to the landlord to enable him to file a suit for eviction of the tenant on the ground of his bonafide personal requirement. From these observations, it is clear that it is not necessary to plead or lead evidence in respect of comparative hardship and from the evidence already recorded, this issue can be decided. From this point of view also, the learned Civil Judge (first appellate Court) has committed no error while deciding issue No.5 in favour of the deceased plaintiff respondent. (50). For the aforesaid reasons, the substantial questions framed by this Court are answered in the following terms:- The substantial question no. 1(i) is decided in favour of the deceased plaintiff respondent and against the defendant appellant. (50). For the aforesaid reasons, the substantial questions framed by this Court are answered in the following terms:- The substantial question no. 1(i) is decided in favour of the deceased plaintiff respondent and against the defendant appellant. The substantial question no.1 (ii) is decided in favour of the defendant appellant and against the deceased plaintiff respondent. But it does not affect the findings recor- ded by first appellate court on issue no.2 in favour of deceased plaintiff respondent. So far as the substantial question no.2 is concerned, it may be stated that the fact that the deceased plaintiff was living in a rented house has not been accepted by this Court and even in the absence of it, since deceased plaintiff respondent has no other alternative accommodation, issue no.5 regarding comparative hardship will be treated as decided in favour of deceased plaintiff respondent. Hence, this substantial question no.2 stands decided accordingly. So far as the substantial question no.3 is concerned, it has been specifically mentioned that there is a clear cut finding that there was a family partition between the deceased plaintiff respondent and his brother and so far as the documents Ex.A-3 and A-4 are concerned, the learned Civil Judge (first appellate court) in para 12 of his judgment has specifically mentioned that so far as the documents Ex.A3 and A4 are concerned, the appellant defendant intends to prove from these documents the facts that deceased plaintiff respondent was not living in the rented house of PW2 and since this Court has held that the plaintiff respondent was not living in the rented house of PW2, therefore, whether these documents have been considered or not, now this point has become immaterial. Hence, the substantial question no.3 is decided in the term that the first appellate court was right in holding that there was a family partition between plaintiff and his brother and documents Ex.A3 and Ex.A4 do not affect the case of the deceased plaintiff respondent upto the limit it has been accepted. Hence, the substantial question no.3 is decided in the term that the first appellate court was right in holding that there was a family partition between plaintiff and his brother and documents Ex.A3 and Ex.A4 do not affect the case of the deceased plaintiff respondent upto the limit it has been accepted. So far as the substantial question no.4 is concerned, as stated earlier, it need not be now decided since the learned counsel for the defendant appellant wants to prove from the documents filed under Order 41, Rule 27 the facts that deceased plaintiff respondent was not living in the rented house of PW 2 and this fact has not been approved by this court, therefore, this question has become immaterial. In the result, for the aforesaid reasons, this second appeal of the defendant appellant is dismissed by affirming the judgment and decree dated 11.8.1980 passed by the learned Civil Judge, Bikaner (first appellate court). The appellant defendant is given three months time to vacate the suit premises. No order as to costs.