Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2066 (RAJ)

Ram Sahai v. Lalchand Parakh

2005-08-05

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is a defendants second appeal in a suit for eviction filed by the plaintiff -respondents on the ground of personal bona fide necessity. Learned trial Court after having considered the evidence passed a decree in favour of the plaintiffs for a piece of land 8x8 yards which was in the tenancy of the defendant-appellant. So far as the adjoining land of the plaintiff-appellants was concerned over which the defendant-tenant has made encroachment, the said relief of possession was rejected by the learned trial Court. 2. Both the defendant-tenant as well as the plaintiff-landlord preferred two separate appeals against the Judgment of the learned trial court dated 19.09.1997. Learned trial Court after consideration of entire material and having heard learned Counsel for the parties affirmed the decree of the learned trial Court with regard to 8x8 yards of land for the eviction of tenant on the ground of personal bona fide necessity from the same and in addition to the aforesaid also decreed the suit in terms of the prayer made in the plaint for the remaining part of the land as described in plaint for which relief has been sought for possession over which the defendant-tenant had made encroachment. Consequently it decreed the suit of the plaintiff-respondents for eviction as well as possession and charges for use and occupation. 3. Being aggrieved by the aforesaid Judgment and decree passed by the learned appellate Court dismissing the appeal filed by the defendant-appellant and accepting the appeal filed by the plaintiff-respondents the defendant-tenant has come up in second appeal under Section 100, CPC. 4. The submission of the learned Counsel appellant is that learned Court below have committed an error in decreeing the suit of plaintiff for personal bona fide necessity in respect of the land in the tenancy measuring 8x8 yards when as per the plaintiff s case the plaintiff No. 1 had 72 percent undivided share in the land as described in the plaint and the plaintiff No. 2 had 28 percent undivided share in the land as described in the plaint. The submission of the learned Counsel for the appellant is that necessity of one of the plaintiffs could be easily met out of the remaining land and learned Court below erred in decreeing the suit for personal bona fide necessity in respect of the entire land described in the plaint. 5. The submission of the learned Counsel for the appellant is that necessity of one of the plaintiffs could be easily met out of the remaining land and learned Court below erred in decreeing the suit for personal bona fide necessity in respect of the entire land described in the plaint. 5. In addition, the submission of the learned Counsel for the appellant further is that there was a misjoinder of parties in the present suit and that both the plaintiffs could not have filed a suit for eviction based upon their right to get the defendant evicted on the basis of the personal bona fide necessity. 6. The further submission of the learned Counsel for the appellant is that learned lower appellate Court erred in allowing the appeal filed by the plaintiff-landlord and decreeing the suit in its entirety for the premises measuring 8x8 yards which was in the tenancy of the defendant-appellant as well as the remaining part of the land over which the defendant had taken possession by encroachment. 7. So far as first submission of the learned Counsel for the appellant is concerned the land in dispute was in the joint ownership having been purchased by a registered sale-deed in favour of both the plaintiffs and till such time as the plaintiffs do not carry out a partition of the property by meets and bounds each one of them in an owner of each and every part of the land. As such on the tenanted premises measuring 8x8 yards both plaintiffs have a right to receive the rent and profits arising out of the land to the extent of their respective shares which is their own internal matter. The definition of landlord as given under Section 3 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 defines “landlord” as under:- “Section 3. Definitions.-In this Act, unless there is anything repugnant in the subject or context- .(i) xxx xxx xxx xxx .(ii) xxx xxx xxx xxx (iii) “landlord” means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver or any other person or who would so receive or be entitled to receive the rent if the premises were let to a tenant; it includes a tenant in relation to the sub-tenant” 8. In view of the aforesaid definition any person who for the time being is receiving rent or is entitled to receive rent would for the purpose of the tenancy be a “landlord” and thus it does not lie with the defendant to challenge that either the plaintiff did not have a right to file the suit in respect of the land without seeking a partition or that there was a misjoinder of parties so far as plaintiffs are concerned or further that learned trial Court should have considered the necessity of the plaintiffs qua their respective shares only. In addition to the above, the aforesaid submissions having been made for the first time in the second appeal under Section 100 cannot be allowed to be raised. Nonetheless, as has been submitted above, there is no infirmity in the findings of the learned Courts below and the submission made by the learned appellant cannot be accepted. 9. An attempt was also made by the learned Counsel for the appellant to state that learned Courts below have committed error in deciding the issues No. 5 and 6 relating to personal bona fide necessity. So far as aforesaid submission is concerned the question of personal bona fide necessity is a question of fact and cannot be allowed to be raised in second appeal under Section 100, CPC. 10. Consequently, there is no force in this second appeal and the same is liable to be dismissed summarily. 11. However, in the facts and circumstances of the present case since the appellant has been carrying on business for a considerable long period in the premises in dispute and it would not be possible for the appellant to shift his business to an alternative place within a short span of time, consequently, I deem it just and proper to allow the appellant time of one year to vacate the premises by handing over the vacant and peaceful possession of the premises in dispute to the plaintiff -respondents (landlord) on or before 31.08.2006 on the condition that appellant submits within a period of four weeks from today, an undertaking before the trial Court to the effect that appellant would handover vacant and peaceful possession of the premises in dispute as described in plaint to the decree holder-respondents on or before 31.08.2006. 12. 12. The appellant would also undertake that he would handover vacant and peaceful possession of the premises in dispute under the decree passed by the learned lower appellant Court and would not during the period of one year create any third party interest in the same or sublet, assign or part with the possession of the same. 13. At the time of submission of undertaking, it would be necessary for the appellant in case the appellant wishes to avail the period of one year granted for vacating the premises to pay all the amount by way of use and occupation charges as awarded under the decree of the learned lower appellate Court and continue to pay the same during the said period by 15th of each succeeding month. It is further made clear that in case the said undertaking is not filed within a period of four weeks, the respondents-decree holder would be free to execute the decree. 14. In view of the aforesaid, the appeal is dismissed subject to the above. In view of the dismissal of the appeal, the stay application does not survive and the same is also dismissed. In the facts and circumstances, there shall be no order as to costs.