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2005 DIGILAW 3013 (RAJ)

Kesu Ram v. Mangi Lal

2005-11-17

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the appellant. 2. The appellant is aggrieved against the concurrent findings recorded by the two Courts below in respect to the personal bona fide need of the plaintiffs. The trial Court decreed the suit of eviction by the Judgment and decree dated 111.2003 and appeal was filed against that Judgment , which was dismissed by the appellant Court by Judgment and decree dated 05.08.2005. 3. According to the learned Counsel for the appellant, it is a clear case of mere desire of the plaintiff and not a case of any need of the plaintiffs. It is also submitted that infact the plaintiffs filed the suit on the ground that they have no building for social function for their community - Tiwari, which is sub-caste of Dadhich Brahamin community, but it has come on record that Dadhich Brahamin community itself has its own community building where all the functions religious and social including the marriages can be solemnized. Therefore, the plaintiffs failed to prove need for the property in dispute. 4. Learned Counsel for the appellant has also submitted that the reason for need is required to be pleaded and proved but that has not been done by the plaintiff . It is also submitted that the two Courts below has committed serious error of law as both the Courts below while considering the issue of comparative hardship failed to consider the availability of the community building of the Dadhich community. 5. Learned Counsel for the appellant has relied upon the Judgment of the Honble Supreme Court delivered in the case of T. Sivasubramaniam & Ors. vs. Kasinath Pujari & Ors., reported in AIR 1999 SC 3190 and in the case of Badrinarayan Chunilal Bhutada vs. Govindram Ramgopal Mundada, reported in AIR 2003 SC 2713 . 6. Lastly, the learned Counsel for the appellant submitted that in case, this, Court is not inclined to admit the appeal then sometime may be granted to the defendant to vacate the suit premises. 7. I considered the submissions of learned Counsel for the appellant and perused the facts and reasons given by the two Courts below. The two Courts below after considering the facts of the case held that the plaintiffs need is bona fide, for this purpose all oral evidence was considered. 7. I considered the submissions of learned Counsel for the appellant and perused the facts and reasons given by the two Courts below. The two Courts below after considering the facts of the case held that the plaintiffs need is bona fide, for this purpose all oral evidence was considered. The trial Court even observed that the defendant even did not state that there is no need of community hall for the plaintiffs. The two Courts below also held that in case, the suit premises is not vacated by the defendant, the plaintiffs will suffer greater hardship. 8. I do not find any force in the submissions of the learned Counsel for the appellant that simply because the Dadhich community has one building for their social functions, therefore, it has effected the need of the plaintiff or it can satisfy the need of all the members of the community for their social functions which includes the marriage functions. Principally, the finding has been recorded by the two Courts below is a finding of fact about the personal bona fide necessity of the plaintiff which cannot be interfered by this Court as it is based on proper appreciation of evidence. 9. So far as prayer of the learned Counsel for the appellant for grant of time is concerned, looking to the need and project of the landlord and defendant, since a tenant from old time prima facie he can be given some time to vacate the premises and the decree shall not be executable upto 01.06.2006 provided the appellant submits an undertaking before the trial Court that he will vacate the premises and he will handover the vacant possession to the landlord by 31.05.2006 and shall also pay all arrears of rent if due and shall pay the rent month by month by 15th day of each succeeding calendar month to the landlord or shall deposit the rent in the Court. In case of non-compliance, the decree shall be executed forthwith. However, it is made clear that if the landlord will, have any objection about grant of time, they may move an application for vacating this concession also. Undertaking may be submitted within one month from today and the arrears may be paid within two months from today.