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2005 DIGILAW 470 (RAJ)

Ganpat Lal Through v. Kumari Santosh TrivedI

2005-02-14

A.C.GOYAL

body2005
Judgment A.C. Goyal, J.-This is the second appeal by the legal representatives of the original defendant tenant Shri Ganpat Lal. 2. The plaintiffs-respondent Nos. 1 and 2-sister and brother filed a civil suit in the year 1983 for arrears of rent and eviction against the defendant-tenant Shri Ganpat Lal Yadav with the averments that the defendant was the tenant of earlier landlady Smt. Harpyari. Two rooms, kitchen and one covered varandah were given to the defendant on monthly rent of Rs. 100/-. The plaintiffs for their requirements purchased the entire house vide registered sale deed dated 23.04.1982 and since then the defendant became their tenant. Eviction was sought on grounds of default in payment of rent and reasonable and bona fide requirement of the plaintiffs. 2.Vide written statement having admitted the tenancy the grounds of eviction were denied with a specific plea that the plaintiffs want to increase the rent from Rs. 100/-to Rs. 150/-p.m. 4. Issues were framed. Evidence was recorded. Learned Additional Munsif , Ajmer City (East), vide Judgment dated 17.02.1987 giving the benefit of the first default decided issues of requirement and comparative hardship against the plaintiffs and consequently dismissed the suit. It was also held that the defendant failed to prove that the plaintiffs want to enhance the rent. 5. Fist appeal filed by the plaintiffs was allowed by learned Additional District Judge No. 2, Ajmer, vide impugned Judgment and decree dated 31.07.1998. It was held that the plaintiffs have proved their requirement to be reasonable and bona fide; that comparative hardship would be caused to the plaintiffs and that partial eviction is not possible and thus passed a decree of eviction. During the pendency of the first appeal, the defendant-tenant died, hence his legal representatives were brought on record. This second appeal has been filed by two legal representatives of the deceased tenant. 6. I have heard learned Counsel for the parties and perused the impugned Judgment s. As per Section 100 CPC the second appeal shall be heard only on the substantial question of law. Now the point for consideration is as to whether any substantial question of law arises in this second appeal? 6. I have heard learned Counsel for the parties and perused the impugned Judgment s. As per Section 100 CPC the second appeal shall be heard only on the substantial question of law. Now the point for consideration is as to whether any substantial question of law arises in this second appeal? The learned trial Court held that the plaintiff No. 1 Kumari Santosh is a teacher and is posted at different place, hence she does not require the suit premises; that possession of three rooms was given to the plaintiffs at the time of purchase of this building; that they have shown no reason as to why they did not shift there from rented premises; that there is no evidence to show as to when the elder brother of the plaintiffs started residing on the ground floor after his transfer to Ajmer and the accommodation available to the plaintiffs and their family members is sufficient. In the first appeal, it was held that this house was purchased by the plaintiffs in the year 1982 to meet their own requirement; that the plaintiffs were already residing in rented premises; that three rooms available on the ground floor were subsequently occupied by elder brother of the plaintiffs who is residing there with his wife; three children and one nephew (sisters son); that the fact that the plaintiff No. 1 Kumari Santosh is in service at other place is no ground to deny her requirement particularly in view of the evidence that she comes to Ajmer during holidays; that including the elder brother of the plaintiff and his family members were 12 in all, the present accommodation cannot be said to be sufficient; that the plaintiffs or some members of their family cannot be asked to continue in rented premises particularly when they purchased this house for their own need; that other premises on rent are available for the defendant-tenant and thus the first Appellate Court came to this conclusion that the plaintiffs have proved their requirement to be reasonable and bona fide as well as comparative hardship. Learned Counsel for the appellants contended that three tenants were already residing in this house at the time when the plaintiffs purchased this house; that at that time three rooms on the ground floor were taken in possession but they did not occupy the same; that during the penedecy of the suit one other tenant vacated the rented premises and proceedings for eviction against the other tenant are also pending; that first Appellate Court did not consider the reasons given by the trial Court for dismissing the suit; that there was no plea that brother of the plaintiffs had been transferred to Ajmer and occupied the premises on ground floor; that sufficient accommodation was already available to the plaintiffs; that elder brother of the plaintiffs cannot be termed as member of their family and thus substantial question of law arises in this second appeal and further the findings of the first Appellate Court are perverse. He has placed reliance upon a number of Judgment s. In Shree Balaji Kirshna Hardware Stores vs. Srinivasaiah, 1998 (2) Supreme Court Cases 708, it was held that action of landlord in not using the shop behind the rented shop goes to show that his requirement is not bona fide. Similar view was taken in Maqboolunnisa vs. Mohd. Saleha Quaraishi, 1998 (9) Supreme Court Cases 585, Amarjit Singh vs. Smt. Khatoon Quamarain, AIR 1987 Supreme Court 741. In Nand Kishore Sharraf vs. District Judge, Mathura and Others, 1979 (1) R.C.R. 290, it was held by Allahabad High Court that the Courts should take objective decision of question of bona fide requirement .In Smt. Prakash Kaur vs. Smt. Narinder Kaur, 1979 (1) RCR 238, Punjab and Haryana High Court held that a decree for ejectment cannot be passed without proof that accommodation already in possession of landlord was not sufficient. Similar view was taken in M.S. Zahed vs. K. Raghavan , JT 1998 (8) SC 262. In Surya Prasad vs. Ganga Ram, 1991 (2) RLR 641, this Court held that requirement of brother of landlord cannot be treated as requirement of the landlord as the brother was not a member of the family. Similar view was taken in M.S. Zahed vs. K. Raghavan , JT 1998 (8) SC 262. In Surya Prasad vs. Ganga Ram, 1991 (2) RLR 641, this Court held that requirement of brother of landlord cannot be treated as requirement of the landlord as the brother was not a member of the family. In Surinder Pal Singh vs. The Geologist Director of Industries & Ors., 1985(2) RCR 210, Punjab & Haryana High Court held that father and sister of the landlord were not economically dependent upon the landlord, hence they cannot be termed as family members of the landlord. Similar view was taken in Gyanibai vs. Shivlal, 1987 (2) RCR 141 (MP). In Bhagirath vs. Ram Prasad & Anr., 1987 (1) RLR 88, this Court held that merely because the defendant-tenant failed to prove that the landlord filed a suit for eviction with oblique motive like increase of rent is not sufficient ground to say that the plaintiff has proved his requirement. In Ramdeen vs. Sheo Prasad, 1955 RLW 538, it was held that reversing trial Courts decree without applying mind is a question of law under Section 100 CPC. Similar view was taken by this Court in Sardar Dan Singh vs. Sardar Bhag Singh, 1999 WLC (UC) 118. 7. Learned Counsel for the plaintiff -respondents contended that the requirement pleaded is not for elder brother of the plaintiffs but the elder brother alongwith his family members started residing in three rooms available on first floor; that the two rooms, one kitchen with one covered varandah are on rent with the tenant in the instant case; that the requirement of the plaintiffs has been held to be reasonable, and bona fide on proper appreciation of evidence and in all 12 members including the elder brother of the plaintiffs are there and thus no substantial question of law arises in this second appeal. 8. I have considered the rival submissions, the Judgment s of the two Courts below in the light of material evidence available on the record. The first Appellate Court having considered the entire material evidence on record set-aside the findings of the trial Court having given reasons. The findings of the first Appellate Court on the issue of reasonable and bona fide requirement of the plaintiff landlords are based upon proper appreciation of evidence. No case of misreading, wrong reading or non-reading of material evidence is made out. The findings of the first Appellate Court on the issue of reasonable and bona fide requirement of the plaintiff landlords are based upon proper appreciation of evidence. No case of misreading, wrong reading or non-reading of material evidence is made out. Both the Courts came to this conclusion that the plaintiffs purchased this building in the year 1982 for their requirement and they were residing in rented premises even prior to that and during the pendency of the eviction proceedings, elder brother of the plaintiffs came to Ajmer and occupied the vacant portion of ground floor in this house and thus the decision of the first Appellate Court that requirement of the plaintiffs for the suit premises is both reasonable and bona fide is not perverse in any manner.. The findings of the first Appellate Court on this issue cannot be said to be perverse in any manner. All the Judgment s relied upon by learned Counsel for the appellants on the question of reasonable and bona fide requirement are not applicable in the instant case so as to hold that the findings of the first Appellate Court are perverse or any substantial question of law arises in this second appeal. A period of about 23 years has passed even after purchase of this house by the plaintiffs-respondents. Keeping in view the entire discussion made here-in-above, it is clear that no substantial question of law arises in the second appeal. Consequently, this second appeal alongwith stay application is dismissed at the admission stage. Records of the Courts below be returned within two weeks from today.