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2003 DIGILAW 1127 (RAJ)

SHANKAR LAL v. BHANWAR LAL

2003-08-07

PRAKASH TATIA

body2003
Judgment PRAKASH TATIA, J. ( 1 ) HEARD learned counsel for the parties. The brief facts of the case are that the plaintiff-respondent filed the suit for eviction against the defendant-appellants on the ground of personal bonafide necessity of the suit premises so that the plaintiff may construct stair to reach on the roof of his property and may raise construction over the first floor. It is also pleaded that part of the rented premises will be included in the adjoining shop of the plaintiff so that the plaintiff may utilize for expansion of his adjoining shop for his needs as pleaded in the plaint. The trial court as well as first appellate court found the need of the plaintiff, as reasonable and bonafide. The appellants are aggrieved against the judgment and decree dated 8th Jan. , 1990 passed by the trial court and the judgment and decree dated 12th July, 2001 passed by the first appellate court. ( 2 ) PRESENT second appeal was heard by this Court on 20th Sept. , 2001 and this Court in its detail order dated 20th Sept. , 2001 held that:-"so far as the findings recorded by the trial court about the bonafide and reasonable necessity of the plaintiff for setting up a stair case in the suit shop to reach roof of his shop for his enjoyment is concerned, it is a finding of the fact and cannot be examined by appreciating evidence in this second appeal. " ( 3 ) HOWEVER, this Court after looking into the peculiar dimension of the shop of the defendant, which is only 4x28, held that the question of partial eviction of the tenant from the shop in dispute is required to be examined to find out, whether the need of the plaintiff can be satisfied by giving some part of the rented premises to the plaintiff so that the plaintiff may construct stair case and remaining portion may be kept in the tenancy of the defendant. The matter was remitted back to the first appellate court for decision on issue of partial eviction. The matter was remitted back to the first appellate court for decision on issue of partial eviction. After remand of the case, the first appellate court permitted both the parties to lead evidence and thereafter, held that the decree for partial eviction cannot satisfy the need of the plaintiff as it is not possible to construct stair case except by getting possession of the entire shop from the defendant, therefore, the trial court decided the issue against the defendants-tenants-appellants. ( 4 ) IN the back drop of these facts, this second appeal is for consideration on the point whether there is a possibility of raising construction of the stair case for plaintiff by passing a decree for partial eviction only against the defendants-appellants. ( 5 ) THOUGH it is a pure question of fact and the first appellate court has examined the factual aspect and recorded the finding, but to appreciate the controversy learned counsel for the appellant was permitted to refer the evidence as well as the maps produced before the first appellate court. After going through the pleadings as well as evidence and particularly after looking into the maps (Ex. A-11 and a-12 ). it is crystal clear that site of the rented premises is peculiar inasmuch as the width of the shop is only 4 2" whereas depth is 26 8". The rented premises is surrounded by others property in the eastern side to full of its depth as well as in the north side by other persons property. In the south there is main road and in the west side there is plaintiffs own shop, which is also upto full depth of the suit premises. Therefore, there is no way to raise any stair case in the north, east and west sides. The suggestion of learned counsel for the appellants is that staircase can be constructed any where in the rear part of the premises in dispute i. e. at the blind end part of the shop in dispute or at the middle of the defendants shop and stairs may have opening in the shop of the plaintiff himself. The suggestion of learned counsel for the appellants is that staircase can be constructed any where in the rear part of the premises in dispute i. e. at the blind end part of the shop in dispute or at the middle of the defendants shop and stairs may have opening in the shop of the plaintiff himself. ( 6 ) THIS suggestion itself suggests that in case, the plaintiff wants to construct stair case, then he will have to part with his own shop to be used to approach the gate of the stair case, meaning thereby to get the space of about 3 feet or 4 x 4. 2 of the rented premises. The plaintiff will have to part with from his own shop, for passage, atleast 3 feet into atleast about 20 feet, if the stair case is raised at the back of the rented premises and 3 feet into about 15 to 18 feet, in case the gate of the stair case is given in the middle of the rented premises. Such a decree in favour of the plaintiff will be a mere eye wash. The plaintiff who has filed the suit on the ground of personal bonafide necessity, which has been found proved by three Courts including the High court, still, he will have to part with more portion of his own shop to get a very smaller piece of rented premises from the tenant. Apart from it the case of the plaintiff is that the plaintiff will construct stairs and also utilized rest of the width of the rented premises expansion of his own adjoining shop. Assuming for the sake of argument that plaintiff could prove his need only for construction of stairs, still premises in question is of such dimension, which cannot be partitioned, therefore, decree for eviction in the fact of this can be for entire suit premises only and decree tor only partial eviction of tenant cannot be passed. ( 7 ) THEREFORE, the Court below was right in holding that the plaintiff is entitled for decree for entire suit shop. 1 do not find any question of law even involved in this appeal much less to any substantial question of law. ( 8 ) HOWEVER, at the request of the learned counsel for the appellants, the time is granted to vacate the suit premises. 1 do not find any question of law even involved in this appeal much less to any substantial question of law. ( 8 ) HOWEVER, at the request of the learned counsel for the appellants, the time is granted to vacate the suit premises. The suit premises will be available to the appellant only on furnishing a written undertaking before the trial court that the appellant shall vacate the premises and hand-over it to the respondent landlord by or before 28th Feb. , 2004 and should make payment of the arrears of rent and shall pay the monthly rent as he has paying in the trial court. Therefore, the appeal of the appellant is dismissed with costs with permission to the appellants to occupy the premises till 28th Feb, 2004. The undertaking will be filed within a period of two months. Appeal dismissed.