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2002 DIGILAW 39 (JHR)

Mahabir Prasad Khandelwal v. Gayatri Devi

2002-01-15

GURUSHARAN SHARMA

body2002
ORDER Gurusharan Sharma, J. 1. Defendants are appellants. Admittedly, Mahabir Prasad Khandelwal defendant No. 1 was inducted as tenant in the suit premises detailed in Schedule to the plaint on monthly rental of Rs. 45/-. Plaintiffs Gayatri Devi and Kisto Prasad Sah. who were wife and husband filed Title Suit No. 1 of 1984 for eviction against the defendants, namely, Mahabir Prasad Khandelwal and his full brother Rameshwar Lal Kandelwal on the grounds of personal necessity, default in payment of rent since August, 1980, and subletting in favour of defendant No. 2. 2. Defendants denied plaintiffs personal necessity default in payment of rent and sub-letting to defendant No. 2. It was asserted that both the defendants were full brothers and they were still joint and were living together. 3. Trial Court decreed the suit holding that plaintiffs had bonafide personal requirement of the suit premises and the suit premises was sub-let to Rameshwar Lal Khandelwal by Mahabir Prasad Khandelwal, who was tenant in the suit premises. It was found that defendant No. 2 was living in the suit premises with his family members and defendant No. 1 with his family members was living in a different premises. Plaintiffs failed to prove any default on the part of defendants in payment of rent. 4. Subsequently, on remand the trial Court considered the question of partial eviction in detail and held that partial eviction would not satisfy the plaintiffs need. 5. Defendant preferred Title Appeal No. 26 of 1987 which has also been dismissed by impugned judgment and decree dated 22.3.2001. While affirming the findings of trial Court, the court of appeal below observed that defendants failed to prove that plaintiffs had any other house within Madhupur town or they had two more residential rooms in the ground floor behind the two shops. Plaintiff No. 2 was living with his wife, plaintiff No. 1 two sons and two daughters and there were only two rooms in their possession and they constructed one more room subsequently. Plaintiffs required atleast one separate room for accommodation of their married son and one separate room for themselves and other sons and daughters could not be accommodated in the remaining one room only. Plaintiffs, therefore, certainly needed more accommodation and, therefore, they had a bonafide personal requirement of the suit premises. Plaintiffs requirement would not be served by partial eviction of the defendants. Plaintiffs, therefore, certainly needed more accommodation and, therefore, they had a bonafide personal requirement of the suit premises. Plaintiffs requirement would not be served by partial eviction of the defendants. The suit premises consisted two rooms, worth comfortable for living, which can accommodate only double beds and other three rooms were small rooms. There was only one bath- room and one latrine and the plaintiffs as well as defendants families cannot be accommodated in the same premises. Both the courts below also found that defendant No. 2 was living in the suit premises without plaintiffs permission, which clearly amounted to sub-letting. Defendants failed to prove that they were Joint in mess and both were bound to be living separately. Defendant No. 1 who was younger brother of defendant No. 2 was admittedly inducted as tenant in the suit premises, and was found to have left the premises and allowed his elder brother to live therein with his family members without plaintiffs consent. 6. In my opinion, this Appeal is con cluded by concurrent findings of fact re corded by two courts below and no substan tial question of law arises to be considered in this Second Appeal. It is. accordingly, dis missed.